R v F, AD

Case [2015] SASCFC 130

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v F, AD

[2015] SASCFC 130

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Lovell)

14 September 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL COUNTS

CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY - ADEQUACY OF WARNING - SEXUAL OFFENCES

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

Appeal against conviction and application by the Director of Public Prosecutions for permission to appeal against sentence. The defendant was convicted in relation to sexual offending against two of his sons as children and then as adults. In respect of one complainant, the defendant was convicted of the offence of persistent sexual exploitation of a child and two counts of rape, which were said to have occurred when the complainant was an adult.  The defendant was convicted in relation to the second complainant for the offence of unlawful sexual intercourse with a person under 12, and an aggravated serious criminal trespass and rape that were said to have occurred when the second complainant was an adult.  Defendant sentenced to 13 years of imprisonment, with a non-parole period of eight years.

Whether the Judge erred in refusing an application for separate trials.  Whether the Judge erred in holding that the evidence of the two complainants was cross-admissible as to the offending against them when adults. Whether the Judge gave adequate directions on the permissible and impermissible use of the evidence of the two complainants.  Whether the verdicts were unreasonable or cannot be supported having regard to the evidence.

Held per the Court (dismissing the appeal against conviction):

1.  The Judge’s rulings as to the admissibility of the evidence were open to him.

2.  The Judge’s directions on the limitations of the use of the evidence were clear. In any event, the evidence of the two complaints was cross-admissible in respect of the childhood offending as well as the adult offending.

3.  To the extent that there were any inconsistencies in the evidence, they were not substantial and it was open for a reasonable jury to convict on the evidence.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

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

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES

Whether sentence imposed manifestly inadequate.  Whether the Judge erred in making the sentences for the offences committed against the first complainant wholly concurrent.  Whether the Judge erred in making the sentences for the offending against the…

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AGLC
R v F, AD [2015] SASCFC 130
Case
[2015] SASCFC 130
Decision Date

CaseChat Overview and Summary

The appeal concerned a defendant convicted of sexual offences against his wife and two sons. The primary dispute on appeal related to the admissibility of evidence concerning allegations of adult sexual offending, which the defendant argued should not have been admitted as it was not cross-admissible with evidence of childhood abuse. The matter was heard in the District Court, with the appeal being determined by Gray, Sulan, and Lovell JJ.

The legal issues before the appellate court included whether the trial judge erred in ruling that evidence of the complainants' adult sexual abuse allegations was cross-admissible with their childhood abuse allegations. This involved an examination of section 34P of the *Evidence Act 1929* (SA), which governs the admissibility of discreditable conduct evidence. Specifically, the court had to determine if the probative value of the evidence, for a permissible use, substantially outweighed its prejudicial effect, and whether the permissible use could be sufficiently separated from any impermissible use to avoid appreciable risk of prejudice. The defendant also contended that the judge's rulings created such confusion that the jury could not properly reason through the evidence.

The appellate court dismissed the appeal against conviction. They found that the trial judge had correctly applied section 34P of the *Evidence Act 1929* (SA) in admitting the evidence of adult offending. The court reasoned that the evidence of adult offending had a sufficient degree of similarity and unity with the evidence of childhood abuse to warrant its admission for a permissible purpose, and that the probative value substantially outweighed any prejudicial effect. The court also found that the permissible use of the evidence could be kept separate from any impermissible use.

However, the appellate court granted the Director permission to appeal against the sentence imposed. They set aside the original sentence and, applying the principle of totality to avoid a "crushing" sentence, imposed a single term of imprisonment of 20 years with a non-parole period of 12 years.

Orders

Orders of the court

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Background

Background to the litigation

The Judge sentenced the defendant to one sentence for all offending of 13 years of imprisonment. A non-parole period of eight years was fixed. Background The complainants were members of the defendant’s family. One complainant was the defendant’s wife and the other two his sons. It was alleged by the prosecution that the sexual abuse of the complainants occurred against a backdrop of the defendant’s subjugation and control over his family. For that reason, it is important from the outset to address in some detail the circumstances of the defendant and his family. In 1968, the defendant married the complainant SF in Tasmania. At this time, SF had three children from a previous relationship. The children were taken into state care shortly after the defendant married SF. The first child born to the defendant and SF was fostered out to another family from a very young age. In 1971, the complainant PF was born in New South Wales. PF is the second son of the defendant and SF, and the eldest of the five sons whom remained in their care. In 1980, the complainant JF was born. JF is the youngest of the five sons, and is some nine years younger than PF. For the purposes of the trial and appeal, the defendant and SF’s eldest son, and the three sons born between PF and JF, do not form part of the evidence or grounds of appeal. The evidence established that the defendant was the head of the family. During the early stages of PF and JF’s childhood, the family lived in a number of states across Australia, including Queensland, Tasmania, Victoria, New South Wales and South Australia. The moves both interstate and intra-state were frequent, unplanned and, at times, quite spontaneous. The family often lived in poverty. Accommodation included living in caravan parks, housing trust homes, emergency accommodation and, on occasions, in tents on the beach. Financially, the family were heavily reliant upon the charity of others, such as local churches or charity groups for clothing, furniture and food. At times, to earn money for the family, SF would work as a prostitute and PF would collect cans and bottles with the defendant. On occasion, the family were homeless, living in tents in remote areas, washing in the sea and going to town for fresh water. The children were further disadvantaged by having a disrupted schooling. PF and JF attended many different schools, at times only for a week or so, before being moved again by the defendant. Consequently, PF and JF were illiterate during their childhood and were never able to establish friendships with other children at school. SF had few friends and no contact with any extended family. JF developed a significant speech impediment about which he was repeatedly teased at school. The inability of PF and JF to read, write and speak properly at a young age, together with the constant moves, made it very difficult for them to tell others about the abuse that was occurring. The prosecution alleged that the defendant deliberately subjected his family to a nomadic existence. The constant moves deprived the family of the opportunity to form close relationships with others in the community, including extended family members. The defendant purposely isolated his family in this fashion so that his acts of physical and sexual abuse could be committed without the fear of exposure.

Evidence

Evidence Before The Court

When considering the application for separate trials, the Judge considered that the evidence of PF and JF was cross-admissible with respect to the adult offending but not the childhood offending. On the appeal, the defendant complained with respect to the former ruling. It was said that the evidence of the rapes as adults was not cross-admissible. Counsel contended that the Judge erred in finding that there was an underlying unity or similarity of account between the allegations of adult rape and, pursuant to the statutory requirement set out in section 34P(2)(a) of the Evidence Act 1929 (SA), that the probative value of the evidence admitted for permissible use substantially outweighed any prejudicial effect. Section 34P provides:(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). Attention was drawn to the fact that PF’s evidence in respect of his allegations of adult offending was largely consistent with his evidence in respect of his allegations of childhood abuse, whereas JF’s allegations of adult offending were substantially different to his allegations of childhood offending. It was further contended that even if there was some permissible use to the adult allegation evidence, that permissible use could not be separated from the impermissible use as required by section 34P(3) of the Evidence Act. It was said that the Judge’s rulings caused a circumstance of such confusion that one could not be confident that the jury would be able to undertake the appropriate process of reasoning.

Decision

Reasons for decision

If the above sentences were imposed, the defendant would face a total term of imprisonment of 43 years. Such a lengthy term of imprisonment would be crushing. In the circumstances the principle of totality should be applied to avoid a crushing result. Conclusion We dismiss the appeal against conviction. We grant the Director permission to appeal against sentence and allow the appeal. We set aside the sentence imposed in the District Court. We invoke our powers under section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and impose the one penalty for all offending. We sentence the defendant to the one term of imprisonment of 20 years. We fix a non-parole period of 12 years. The sentence is to be taken to have commenced on 6 May 2013.

Ratio Decidendi

Legal Principle Established

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