R v Ellis

Case [2010] SASC 118

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ELLIS

[2010] SASC 118

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice Kourakis)

27 April 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - OTHER MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

Appeal against sentence and conviction – appellant convicted of six counts of indecent assault and seven counts of buggery of four complainants which took place between 1961 and 1971 – appellant sentenced to 16 years’ imprisonment with a non-parole period of 12 years’ imprisonment – whether Judge erred in failing to order separate trials with respect to each complainant and in concluding that the evidence of each complainant was cross admissible with the evidence of the other complainants – whether Judge erred in application of legal principles relating to the question of contamination or concoction – whether jury misdirected with respect to ‘similar fact’ evidence – whether non-parole period manifestly excessive – whether Judge erred in failing to give adequate consideration to the age or health of the appellant.

Held:  Judge was correct in concluding that the evidence of each complainant was cross-admissible and correctly applied legal principles relating to the contamination or concoction – no error demonstrated with respect to jury direction on similar-fact evidence – non-parole period not manifestly excessive – evidence did not indicate that imprisonment would have a gravely adverse effect on appellant – appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 278; Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
Hoch v The Queen (1988) 165 CLR 292; Markby v The Queen (1978) 140 CLR 108; Phillips v The Queen (2006) 225 CLR 303; De Jesus v The Queen (1986) 22 A Crim R 375; Pfennig v The Queen (1995) 182 CLR 461; R v Dawson-Ryan (2009) 104 SASR 571; Sutton v R (1984) 152 CLR 528; HML v The Queen (2008) 235 CLR 334; R v Hunter (1984) 36 SASR 101, applied.
BRS v The Queen (1997) 191 CLR 275, discussed.
R v F (2002) 129 A Crim R 126; R v Colby [1999] NSWCCA 261; R v Bednikov (1997) 95 A Crim R 200; Gulyas v Western Australia (2007) 178 A Crim R 539; R v Vachalec [1981] 1 NSWLR 351; R v Smith (1987) 44 SASR 587; R v Creed (1985) 37 SASR 566; R v Liddy (No 2) (2002) 84 SASR 231; Smith v The Queen (Unreported, Western Australia Court of Criminal Appeal,…

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R v Ellis [2010] SASC 118
Case
[2010] SASC 118
Decision Date

CaseChat Overview and Summary

In the matter of R v Ellis, the appellant was convicted of multiple counts of indecent assault and buggery involving four complainants over a period spanning from 1961 to 1971. The court of appeal was tasked with determining whether the trial judge erred in failing to order separate trials for each complainant and in concluding that the evidence from each complainant was cross-admissible. Additionally, the court examined whether the judge correctly applied legal principles concerning the potential contamination or concoction of evidence, as well as whether the jury was misdirected regarding 'similar fact' evidence. The appeal also considered whether the non-parole period of 12 years was manifestly excessive and whether the judge adequately considered the appellant's age and health.

The court found that the evidence of the offending against each complainant was admissible as proof of the offences against the others, despite the varying timelines and contacts between the complainants. The court disagreed with the trial judge and Sulan J's reasoning, asserting that the admissibility did not hinge on a finding that the complainants were truthful or that their accounts were free from contamination. Instead, the court referenced the principles established in Hoch v The Queen, which suggest that admissibility is determined by the risk of concoction, assessed through the witness statements alone. The court held that the appellant's health and age did not warrant a reduction in sentence, as the evidence did not indicate that imprisonment would severely impact his health.

Ultimately, the court dismissed both the appeal against conviction and sentence. The court upheld the trial judge's decision, finding that the evidence was properly admitted and that the sentence, including the non-parole period, was not manifestly excessive given the gravity and duration of the offences.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In my view there was insufficient danger of concoction in this case; the broadly similar complaints made by the several victims were explicable only by the guilt of the appellant. Moreover, since the decision in Pfennig v The Queen,[44] the test for admissibility in cases like this one and Hoch is now as follows: Is the improbability that the several similar accounts have been jointly or separately fabricated sufficient to dispel a reasonable doubt which the trial Judge must assume is left by evidence peculiar to each individual count? Applying that test, I would hold that the evidence of offending against each of the complainants was cross-admissible. I elaborate on my reasons for so holding below.[44] (1995) 182 CLR 461.The admissibility of evidence of other offending The development of the principles governing the admissibility of other offending commences with the dichotomous statement of principle of Lord Herschell LC in Makin v Attorney-General for New South Wales:[45] Evidence of other offending cannot be led for the purpose of showing that the accused is a person likely from his criminal conduct to have committed the offence, but that evidence can be admitted if it is relevant for another reason.[46] The inherent tension between the two limbs of that principle[47] was accommodated by an approach which, until the House of Lords’ decision in Reg v Boardman,[48] held that mere propensity evidence was inadmissible and that evidence of other offending was only admissible if it went to something other than disposition.[49] The other evidential purposes which have justified the admission of evidence of other offending share the common feature that they demonstrate the improbability of the accused’s innocence by reference to some aspect of human experience other than the likelihood of recidivism. For example, evidence of other offending may demonstrate the improbability of an accused suffering the misfortune of losing several close associates through accidental death or accidentally finding himself at the scene of several similar crimes. In other cases, the evidence may demonstrate the improbability of someone other than the accused using an instrument of crime in the same peculiar way as the accused. However, if any other reason at all was sufficient, the second limb of the rule in Makin would largely negate the first. Furthermore, over time there was an increasing awareness that in some cases the “other” purpose was perhaps propensity in another guise,[50] while in some cases the probative weight of the propensity demonstrated by the evidence was sufficient in itself to overcome its prejudicial effect.[51] [45] [1894] AC 57.[46] Makin v Attorney-General for New South Wales [1894] AC 57 at 65.[47] See Pfennig v The Queen (1995) 182 CLR 461 at 476 per Mason CJ, Deane and Dawson JJ.[48] [1975] AC 421.[49] See Markby v The Queen (1978) 140 CLR 108 at 116, Perry v The Queen (1982) 150 CLR 580 at 609; Sutton v The Queen (1984) 152 CLR 528 at 545-6, 556-7 and 562-3; Pfennig v The Queen (1995) 182 CLR 461 at 477.[50] Harriman v The Queen (1989) 167 CLR 590 at 600 per Dawson J; but cf Sutton v The Queen (1984) 152 CLR 528 at 562 per Dawson J.[51] Reg v Boardman [1975] AC 421; Director of Public Prosecutions v P [1991] 2 AC 447.

Decision

Reasons for decision

Evidence of the appellant’s health was before the sentencing Judge who noted that there were reports and evidence throughout the trial, and after the trial, in relation to the appellant’s medical condition. The Judge was of the view that the appellant’s health is not perfect, but it is not unusual for a person of his age.[41] Counsel for the respondent submitted that the evidence disclosed nothing more than the fact that the appellant is elderly and suffers from some of the conditions that one might expect a more elderly member of the community to suffer. I agree. The evidence does not indicate that imprisonment would have a gravely adverse effect on the appellant’s health. The sentencing Judge was correct.[41] Holyoak v The Queen (1995) 82 A Crim R 502.Conclusion on appeal against sentence There are cases where it is necessary to impose a sentence which may have the consequence that there is a very real prospect that a defendant will die in gaol.[42] This is such a case. The offending was grave. It continued over a prolonged period. It was associated with violence. The defendant had scant regard for the welfare of vulnerable young children placed in his care. His conduct was callous. There is little one can say in favour of the defendant. [42] Ibid.Orders I would dismiss both the appeal against conviction and sentence. KOURAKIS J: I have had the advantage of reading the draft reasons for judgment of Sulan J. I shall not repeat the factual and procedural history of this matter. For reasons that I shall briefly explain, I have concluded that the evidence of the offending against each of the complainants was admissible as proof of the offending against the others. In particular, the evidence of the offending against GR was admissible on the counts charging offences against DF, notwithstanding the contact between them whilst they were both residents of Eden Park and many years later in 2005. Similarly, the evidence of offending against DF was admissible against the appellant on the charges alleging offences committed against GR. My reasons for so holding differ from those of the trial Judge and Sulan J. In my view the admissibility of the evidence does not depend on the Judge’s factual finding that the complainants, whose evidence he heard on the voir dire, were witnesses of truth and that their accounts were not affected by concoction or any other form of contamination. Nor, to put the matter more generally, does admissibility depend on a finding made on a voir dire by a trial Judge that the prosecution have proved beyond reasonable doubt that there was no joint concoction or other form of contamination. The High Court in Hoch v The Queen[43] did not hold that the admissibility of the evidence was contingent on a finding by the Judge that the complainants did not concoct the evidence. Indeed, the Court appeared to contemplate an assessment undertaken on the witness statements alone, the purpose of which is to determine whether there is a sufficient risk of concoction to destroy the probative force of the circumstance that several complainants have made similar allegations.[43] (1988) 165 CLR 292.

Ratio Decidendi

Legal Principle Established

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