R v F, AD - [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 second complainant as an adult wholly concurrent with the sentence for the offending against that complainant as a child.
Held per the Court (granting permission to appeal against sentence and allowing the appeal):
1. The sentences of seven years of imprisonment for the offence of persistent sexual exploitation of a child, and of six years of imprisonment for the offence of unlawful sexual intercourse with a person under 12, were manifestly inadequate.
2. It was not appropriate for the Judge to order concurrency in respect of the sentences imposed for the offending against each complainant as an adult as to the offending against each complainant as a child.
3. Sentence imposed by the District Court set aside. Defendant resentenced to a term of imprisonment of 20 years with a non-parole period of 12 years.
Criminal Law Consolidation Act 1935 (SA) s 48, s 49, s 50, 170, s 278, s 340 and s 353; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Evidence Act 1929 (SA) s 34P and s 34R, referred to.
R v Inston (2009) 103 SASR 265; R v MJJ; R v CJN (2013) 117 SASR 81; R v C, CA [2013] SASCFC 137; Everett v The Queen (1994) 181 CLR 295; R v D (1997) 69 SASR 413; R v Harkin (2011) 109 SASR 334; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; House v King (1936) 55 CLR 499; R v Abdulla (2011) 109 SASR 258; R v O’Connor [2012] SASCFC 15; R v Fowler [2014] SASCFC 16; R v Belczacki (2012) 112 SASR 85; Attorney General (SA) v Tichy (1982) 30 SASR 84; R v Cave [2012] SASCFC 42, considered.

R v F, AD
[2015] SASCFC 130
Court of Criminal Appeal: Gray, Sulan and Lovell JJ
THE COURT.

This is an appeal against conviction. The Director of Public Prosecutions seeks permission to appeal against sentence.
Following a trial in the District Court, the appellant and defendant, AF, was convicted by jury verdict in relation to the complainant PF of the offence of persistent sexual exploitation of a child[1] and two counts of rape,[2] said to have occurred when PF was an adult. The defendant was convicted in relation to the complainant JF for the offence of unlawful sexual intercourse with a person under 12,[3] aggravated serious criminal trespass,[4] and rape said to have occurred when JF was an adult. The maximum penalty for each of the above offences at the relevant time was imprisonment for life.
[1] Criminal Law Consolidation Act 1935 (SA) section 50.
[2] Criminal Law Consolidation Act 1935 (SA) section 48.
[3] Criminal Law Consolidation Act 1935 (SA) section 49(1) as it was at the relevant time.
[4] Criminal Law Consolidation Act 1935 (SA) section 170.
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.
The defendant abused his family physically, sexually, emotionally and financially. The physical abuse inflicted by the defendant was frequent, violent and punitive, and often committed in the presence of other family members. It was often unprovoked or committed over trivial disobedience by the complainants. The abuse became more violent when the complainants tried to resist the defendant’s sexual advances. The evidence was that, on occasions, SF and PF were both present during episodes of physical and sexual abuse.
The Conviction Appeal
It was the prosecution case that the defendant subjected his wife to serious sexual abuse associated with acts of violence. SF gave evidence that the defendant was a heavy drinker who became aggressive and abusive when affected by alcohol. His sexual behaviour would change. SF described how the family was under his dictatorial control. SF described the defendant as having the unusual habit of dressing in her clothing and he would tie her up using the twine that farmers use to tie up bales of hay. SF was terrified of the defendant.
At the time of trial, PF was aged 42 years, single with no children and living with his mother SF. It was the prosecution case that, as a child, PF observed acts of violence committed by the defendant against his mother and brother. He observed that his mother was scared of the defendant and subject to his whims. He was terrified of the defendant and was subjected to physical abuse. He would submit to the defendant’s sexual advances. He put up with the abuse for years. PF described ongoing sexual abuse by the defendant when he was a young child. He recalled occasions where he was tied up with twine. The defendant would subject PF to anal intercourse and, on other occasions, would insert a carrot into PF’s anus. PF gave evidence of acts of gross indecency, including attempts by the defendant to have PF have vaginal intercourse with his mother. The prosecution contended that, having regard to the evidence of PF, there was ample basis for the jury to be satisfied beyond reasonable doubt that, over a period of not less than three days, the defendant committed more than one act of sexual exploitation of PF when PF was under the age of 17 years.
It was the prosecution case that in 1999 or 2000, when PF was 27 or 28 years of age, the defendant raped PF. The defendant dressed PF in SF’s clothing, tied PF’s hands behind his back and attempted to put his penis in PF’s mouth. Upon PF refusing, the defendant placed a toilet brush into PF’s anus.
The prosecution alleged that a further count of rape occurred at Berri on 13 April 2006 when PF was 34 years of age. The defendant directed PF to dress in his mother’s black swimsuit. He then tied PF’s hands and pushed something into PF’s anus.
At the time of trial, JF was aged 33 years. He gave evidence of the defendant sexually abusing him as a child when under the age of 12 years. JF recounted that once at Angaston the defendant had put his penis into JF’s anus. This act gave rise to the charge of unlawful sexual intercourse with a person under 12. JF gave evidence of a further incident when he was about 19 or 20 years of age. The defendant came to JF’s home at Port Pirie. JF told him to go away but the defendant did not leave. The defendant did not have permission to be at the home and was a trespasser. He pulled JF’s pants down, bent him over a bed and placed his penis in JF’s anus. This incident gave rise to the charge of aggravated serious criminal trespass and one count of rape.
The defendant did not give evidence. It was submitted that the prosecution had failed to prove any of the offences beyond reasonable doubt. It was argued that it was a reasonable possibility that the evidence of SF and PF had been cross-contaminated. Counsel for the defendant in submissions to the jury pointed to what were said to be inconsistencies and vagaries in the evidence of the complainants. Attention was drawn to the forensic disadvantage caused due to delay. It was pointed out that there was no objective support for any of the allegations and that they all were based entirely on the evidence of each complainant, and that each complainant was a significantly unsatisfactory witness. It was suggested that much of the evidence was bizarre. It was said that there were such concerns about the credibility and reliability of each complainant’s evidence that the jury could not be satisfied that any of the charges were proved beyond reasonable doubt.
Complaint as to Ruling on Separate Trials
The Judge refused an application for separate trials. As discussed in Inston[5] the grounds of appeal do not necessitate a close examination of the reasoning underlying the trial Judge’s decision not to order separate trials. A decision to order separate trials is a discretionary matter, even if it turns largely on cross-admissibility. It follows from the terms of section 353(1) of the Criminal Law Consolidation Act 1935 (SA) that the defendant must demonstrate a miscarriage of justice flowed from the fact that one jury determined all charges. It is not enough to assert, or even to satisfy the court, that the application for separate trial should have succeeded. The judge’s decision has been overtaken by the course of the trial. The question on appeal is not whether the judge’s decision was correct but rather whether a miscarriage of justice resulted.
[5] R v Inston (2009) 103 SASR 265.
There was no suggestion that the charges had not been properly joined. However, the court retains a discretion to order separate trials of any counts on an information. Section 278 of the Criminal Law Consolidation Act provides:
(1) Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2) Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
(2a) Despite subsection (2) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a)     subject to paragraph (b), those counts are to be tried together;
(b)     the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim.
(3) This section does not affect any other provision of this Act or any other Act permitting more than 1 charge to be joined in the same information.
(4)     In this section—
sexual offence means—
(a) an offence against section 48, 48A, 49, 50, 56, 58, 63B, 68 or 72; or
(b)     an attempt to commit, or an assault with intent to commit, any of those offences; or
(c)     a substantially similar offence against a corresponding previous enactment; or
(d)     an offence against the law of the Commonwealth, another State or a Territory corresponding to an offence referred to in a preceding paragraph.
Charges may be severed, even when properly joined, if a joint trial would create a substantial miscarriage of justice. The receipt of evidence on one or more of a number of counts jointly charged which is inadmissible on other counts creates such a risk.[6] The Director made specific references to subsection (2a) as set out above and, in particular, the direction that counts charging sexual offences involving different victims are to be tried together subject to the discretion contained in subsection (2a)(b). The Director referred to the case of R v MJJ; R v CJN,[7] where Kourakis CJ explained that relevant considerations when determining whether there was a miscarriage of justice were: whether there is cross-admissibility between the charges; the degree of prejudice created by inadmissible evidence; the extent to which prejudice might be removed or ameliorated by an appropriate direction; and the inconvenience involved in separate trials.[8]
[6]    R v MJJ; R v CJN (2013) 117 SASR 81, 96.
[7]    R v MJJ; R v CJN (2013) 117 SASR 81.
[8]    R v MJJ; R v CJN (2013) 117 SASR 81, 96.
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.
In the submission of the Director on appeal, the relevant test for admissibility in the present proceeding is set out in section 34P(2)(a). The probative value of the evidence had to substantially outweigh any prejudicial effect it may have on the defendant. In determining this question, 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. The Director submitted that the collective aspects of the evidence suggested a similarity that would warrant the evidence being cross-admissible. The Director pointed out that at trial the basis advanced by the prosecution as to cross-admissibility in regard to the adult offending was the improbability that the accounts could be individually imagined or fabricated and by sheer coincidence share the broad similarities which they did. Attention was drawn to four features: that there had been a history of sexual abuse against PF and JF by the defendant when each was young; the sexual abuse discontinued for a time; the rapes occurred after this hiatus; and that these rapes occurred once each was an adult. The Director submitted that if the jury excluded the possibility of collusion or contamination, the jury were entitled to reason that the similarity between the account given by PF in relation to the two incidents of rape when he was an adult and the account given by JF in relation to the incident of rape when he was an adult could only be explained by both accounts being true. The reasoning advanced by the prosecution, and accepted by the trial Judge, did not rely on a particular propensity or disposition on the part of the defendant. Thus it was the submission of the Director that, absent collusion, the relevant test was satisfied both in regard to the evidence of PF and JF such that the evidence of the adult offending was cross-admissible.
The Judge rejected the application for separate trials. He reached that conclusion having considered the issue of cross-admissibility. In his reasons on the voir dire, the Judge considered that the evidence to be led by each complainant in respect of the charges concerning each other complainant was evidence of discreditable conduct within the meaning of that term as it appears in section 34P of the Evidence Act. The Judge set out the terms of section 34P(2) and identified that that provision provided the test for admissibility. The Judge noted that it had been accepted by counsel for the defendant that discreditable acts against a particular victim were relevant and admissible in proof of the acts charged in respect of that particular victim. The Judge expressed the view that those discreditable acts were all relevant as they disclosed the nature of the relationship between the defendant and that particular victim and explained why that particular victim may have submitted and not complained.
The Judge reviewed the evidence proposed to be led from each of the complainants noting that all offences and allegations were in the context of a familial setting and involved allegations of cruelty, violence and sexual abuse of the wife and sons of the family. The Judge in his voir dire reasons drew on observations of Kourakis CJ in C, CA in identifying the following as the relevant test:[9]
The clearest basis of the cross-admissibility of the evidence of the offending against each complainant on the trial of the offending against the others is that the testimonial accounts of the complainants demonstrate the improbability that the conduct of which they complained was concocted or imagined by each of them independently of the others. ...
[9] R v C, CA [2013] SASCFC 137, [57].
The Judge then applied this test to the proposed evidence and considered that each of the counts of the complainants SF and PF had probative value as showing the improbability of independent concoction due to the similarities between their accounts, substantially outweighing any prejudicial effect that the proposed evidence may have on the defendant. The Judge considered that the proposed evidence had strong probative value having regard to the likely issues in the trial. The Judge further considered that the proposed evidence was strongly probative in relation to the particular charges involving SF or PF because it was independent evidence that corroborated the account of the particular complainant under consideration as to the bizarre and outrageous sexual conduct of the defendant towards that member of his family.
In respect of the allegations of JF concerning the abuse by the defendant when JF was an adult, the Judge concluded that there was a sufficient uniqueness in those allegations that the proposed evidence was capable of being evidence in relation to PF concerning the allegations by PF that he was sexually abused by the defendant when PF was an adult. The Judge, as a consequence, allowed this evidence of JF to be admissible in the case concerning PF and, on the same basis, the evidence of PF, as to the offending against PF when PF was an adult, to be admissible in the case concerning the offending against JF when JF was an adult.
The Judge concluded his reasons on the voir dire with the following observations:
The reason that such evidence has the strong probative force necessary for its admissibility is as stated by the Chief Justice in R v C, CA at para.58: ‘The strong probative force of similarity of account evidence in the circumstances of this case can be shortly explained. If there were separate trials of the offences against each of the complainants, the primary issue would become the reliability and credibility of the individual complainant concerned. Having sought separate trials, it is very unlikely that the appellant would raise collusion with another complainant who had made similar allegations as a reason for doubting the complainant in the charges before the court. Instead, on a trial of the charges relating to a single complainant alone, the defence is likely to advance matters peculiar to that complainant for doubting his reliability or credibility. Those matters are likely to be accorded substantially greater weight if nothing is known of the allegations made by other complainants than if it is known that other complainants have given very similar accounts of sexual offending by the accused. The rational reason for according that defence less weight, and therefore the probative force of the similarity of account evidence, lies in the improbability that several complainants, independently made, would share the substantial similarities apparent in the accounts of the complainants, given the great diversity in human behaviours and imaginations. If the similarity of account evidence excludes the hypothesis of independent concoction beyond reasonable doubt, the similarities can only be explained by collusion on the one hand, or the truth of the complaints on the other.
Thus it is that on a joint trial of offences against multiple complainants, even though the ultimate question for the jury remains whether it is satisfied beyond reasonable doubt that the appellant committed each of the offences with which he is charged, a high degree of similarity in the complainants’ accounts which excludes the hypothesis of independent concoction and leaves, as the practical forensic issue, whether the possibility of collusion has been excluded beyond reasonable doubt.’
I have had regard in making this decision to the question of whether the use of the evidence for the purposes I have permitted can be kept sufficiently separate and distinct from any impermissible use so as to remove any appreciable risk of the evidence being used impermissibly.
I am confident that with a careful direction to the jury they will be able to identify the permissible use of the evidence and refrain from using it in any impermissible sense.
Our review of the evidence suggests that the evidence of PF and JF, in respect of the defendant’s abuse of them as children, was cross-admissible. The accounts of JF and PF as to the childhood offending had a high degree of similarity, including as to the acts constituting the offending, the age of the complainant when the defendant commenced the offending and the opportunistic nature of the offending. We consider the ruling of the Judge that this evidence was not to be received as cross-admissible was an unduly favourable ruling for the defendant.
The approach taken by the Judge in his other rulings concerning the cross-admissibility of the evidence involved a careful attention to the requirements of section 34P(2) of the Evidence Act. We do not accept that the criticisms advanced by the defendant on the appeal are of substance. We consider the Judge’s rulings on admissibility to have been open to him.
Complaint as to Trial Judge’s Directions
On appeal, counsel for the defendant raised a further complaint as to the Judge’s directions to the jury on the use of the evidence of PF and JF. It was submitted that if there was permissible use of the adult offending evidence, this could not be separated from the impermissible use as related to the childhood offending. Counsel submitted that the jury were expected to consider PF’s evidence as a child to explain the offending against PF as an adult. The jury were also entitled to use PF’s evidence as to the adult offending when considering the allegations of adult offending against JF. However, the jury could not use PF’s evidence as to the childhood offending when considering JF’s evidence as to both the childhood and adult offending as against JF. Nor could the jury use PF’s evidence of adult offending when considering JF’s evidence as to the childhood offending as against JF. It was said that as the prosecution used the childhood offending to explain the adult offending, the jury would not have been able to understand the limitations on the use of the evidence. The same proposition was advanced with respect to the permissible and impermissible uses of JF’s evidence.
Counsel for the defendant submitted that the Judge failed to identify and explain the purposes for which the evidence may and may not be used as required by section 34R of the Evidence Act. Section 34R provides:
(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.
(2) If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
Counsel for the defendant submitted that the failure by the Judge to adequately address this issue in his summing up highlighted the fact that it was impossible to separate the permissible and impermissible use as required by section 34P(3).
The Director submitted that the Judge gave proper and adequate directions on the permissible use of the respective bodies of evidence in relation to the relevant counts and the impermissible uses of the respective bodies of evidence in relation to the relevant counts. Counsel for the Director highlighted the passages in the summing up which directed the jury on similarity of account reasoning. It was noted that the Judge only referred to such reasoning in respect of the adult offending and against such a background gave the following direction:
When I told you about how you can use the evidence of [JF] in relation to the allegations of [PF] and vice versa, I should have specified to you and I do now that that is only in relation to the adult offences, not the childhood offences because there is no significant similarity in relation to the childhood offences. The only similarity that arguably could be coincidence is the allegation about the adult offences after the history of an interest in him as a child from age 5-12. I should have made that clear and I do now.
The Judge in the course of his summing up addressed the use of the evidence of discreditable conduct and the cross-admissibility of evidence at some length. The Judge directed on how evidence of uncharged bad acts of the accused or evidence as to his bad character were to be used in the jury’s deliberations. The Judge described this as “general evidence of bad character”. His Honour then went onto to discuss two types of “specific evidence of bad behaviour or character” and said:
There are two lots of more specific evidence of bad behaviour or character that you have heard in this trial. One is what one complainant says about other things that had been done to that complainant and the other is whether you can use what one complainant says about what happened to him, when you are considering the case involving another complainant.
The Judge described the first type of specific evidence as background or context evidence and he explained in detail what use the jury may make of such evidence. His Honour then turned to the second type of specific evidence, labelling it coincidence evidence. His Honour first explained the nature of coincidence evidence and then dealt with its applicability to each of the complainants in turn. Before doing so he said:
This way of arguing applies or may apply, depending on your view of the facts, in relation to [PF] and [SF] and between [PF] and [JF], but not between [JF] and [SF] because I have ruled that in the case of [JF] and [SF] there are not enough similarities for the argument to be able to be used in court.
Later the Judge said:
The evidence in relation to offences against [JF] or what [JF] says happened to him is not evidence at all in the case involving allegations about [SF] and the accused and you must not use that at all in determining the case in relation to the allegations of [SF]. The only evidence that is admissible, apart from direct evidence of what happened to [SF], in relation to [SF], is the evidence of [PF] insofar as it might demonstrate the similarity that I have spoken of. And, similarly, you cannot use the evidence in relation to [JF] in the case involving [SF] and you cannot use the evidence involving [SF] in the case involving [JF].
On appeal, the defendant did not claim that the Judge’s directions as to the cross-admissibility of the evidence as between SF and JF were insufficient or would have resulted in confusion. Rather, counsel for the defendant contended that, on the Judge’s directions, the jury would not have been able to disregard the impermissible use of the evidence as between PF and JF.
The Judge addressed the cross-admissibility of the evidence of PF and JF after considering the cross-admissibility of SF and PF. At first the Judge did not specifically draw the jury’s attention to the impermissible use. However, the Judge, when describing the permissible use, only made reference to how the jury may make use of the evidence of adult offending and the similarities between the evidence of PF and JF as to the charged offending against PF and JF as adults. In these directions as to the “coincidence evidence”, the Judge made no reference to the charged acts of childhood offending as against PF or JF and only referred to the childhood offending generally as providing a contextual similarity between the two accounts of adult offending. Below is an extract of those directions:
Let me now turn to [PF] and [JF]. [PF] and [JF] both make the following allegations: that as children they were subjected to sexual abuse by their father, the accused; after a period of sexual abuse as children, the sexual activities ceased for a long period of time, when the accused no longer had the opportunity to commit the offending; after a lengthy period of time of no sexual activity, out of the blue, when they were adults, the accused sexually abused them again, in circumstances where ordinarily one might have thought that they could each successfully resist their father.
The prosecution says that they are unusual allegations, that two people should say they were sexually interfered with by their father when children, that there should be a lengthy period of time when nothing happens and then there should be a sexual assault on each of them, when an adult, and at a time when they are probably a physical match for the accused, but they succumb to him.
The prosecution says they are pretty unusual, bizarre allegations to make and it would a very big coincidence, if both [PF] and [JF] make them independently of each other. That a fully grown adult should allege that his father successfully raped him may be considered by you to be a bizarre allegation. You might, because the allegation is so bizarre, have doubts about whether the complainant, say [PF], is telling you the truth. But if [JF] independently makes the same bizarre, prima facie perhaps unbelieveable allegation, then perhaps [PF]’s allegation is not so bizarre and unbelievable after all and vice versa. It may show that [PF] and [JF] have been so badly emasculated by their family environment and years of conditioning that even while adults and probably or possibly physically stronger than their father, he still has a hold on them, such that this can occur. And that it is so strange that coincidence cannot be the explanation. They must both be telling the truth, unless there is cross-fertilisation between the two of them.
The defence says there are no real coincidences at all. Most of the activity involving [PF] involves objects placed in his anus and the use of the clothing of [SF] in a sexual manner. Most of the activity involving [JF] involves no use of objects and no assertion of tying up with twine, no assertion of use of the mother’s clothing in a sexual fashion. And the allegations by each about what happened when they were an adult are completely different, in the circumstances in which they allege the offending took place.
In any event, the defence says there is a real possibility that they both got their heads together when making the allegations and so the allegations are not independent but, rather, one brother’s allegations may have been influenced by the other brother’s allegations and vice versa and that this explains any so-called ‘coincidence’.
The prosecution argument is that it would be a real coincidence if both brothers independently have made up that after a period of being sexually assaulted as children the accused should do it to them again as adults.
When considering the truthfulness of the evidence of [PF], the fact that [JF] independently makes a very similar allegation of sexual assault, when he was an adult, makes it more believable. Similarly, when considering the allegation of [JF] that he was sexually assaulted when he was an adult, you can consider whether the case is strengthened by the fact that someone else, namely [PF], has made a similar allegation against the same person, provided the allegations are made without collaboration and putting their heads together.
The prosecution says that we all know that some males have a sexual interest in young children. It is unusual that they should have a sexual interest in the same person as an adult.
The prosecution says it is unlikely that [PF] and [JF] would both make the same allegation about adult sex coincidently, especially when it is so bizarre. It is not just coincidence. They both admit to what [PF] described as shameful and embarrassing capitulation as adults to their father’s sexual advances. Not the sort of thing that you would want known around town, that you are too weak to resist sexual advances by your old man.
The prosecution argument goes; if you should be satisfied beyond reasonable doubt that they did not collaborate or cross-infect each other in their stories, you should consider if the allegation of [PF] is made more believable by the fact that a similar allegation is made by [JF] and that the allegation of [JF] is made more believable by the similar allegation of [PF].
You may infer that the two witnesses [PF] and [JF] have given truthful evidence for that reason. If you are satisfied beyond reasonable doubt that their accounts are so similar that they cannot be explained by coincidence, in such a situation you might infer that the only reasonable explanation for the similarities is that each of the complainants is telling the truth. In other words the fact that another person tells a similar story or makes similar allegations independently boosts the credibility of the witness whose account is under investigation provided you are satisfied beyond reasonable doubt that there has been no collusion or cross-fertilisation.
Of course the defence say that the evidence that these things happened is simply not true. In particular they allege that any similarities, which is denied, is explained by collusion or unconscious influence and they point out the differences about no fetish involving clothing suggested by [JF], no objects used suggested by [JF], no clothing on the head suggested by [JF].
It is for you to determine whether [PF] and/or [JF] are telling you the truth, however you may only draw an inference from the fact they both gave similar accounts if you are satisfied beyond reasonable doubt that their accounts were not contaminated in any way. If you think that there is a possibility that their accounts may have been contaminated, perhaps by the fact that they are brothers and close to each other and see a lot of each other, then you may not draw that inference, and in that case you would have to perform the admittedly difficult task of determining issues in relation to [JF] without having regard to the fact that brother [PF] is making allegations against the accused and vice versa.
I will now direct you as to how you must not use this evidence. You must not use it to reason that if the accused did commit offences against [JF] he must, for that reason alone, or from the fact that he is a bad person, have committed the offences in relation to [PF], or vice versa.

If the Judge had left the directions at this, there may have been some force to the submissions of defence counsel. However, as extracted above, upon a prompt from the prosecution the Judge gave the following further direction:
When I told you about how you can use the evidence of [JF] in relation to the allegations of [PF] and vice versa, I should have specified to you and I do now that that is only in relation to the adult offences, not the childhood offences because there is no significant similarity in relation to the childhood offences. The only similarity that arguably could be coincidence is the allegation about the adult offences after the history of an interest in him as a child from age 5-12. I should have made that clear and I do now.
41 In our view, the Judge’s directions on the limitations of the use of the evidence were clear. However, as earlier mentioned, in our opinion, the evidence of PF and JF was cross-admissible in all respects and, as such, no miscarriage of justice has occurred.
Complaint that Verdicts were Unsafe and Unsatisfactory
On appeal, counsel for the defendant also contended that the verdicts were unsafe and unsatisfactory having regard to the contradictions in the evidence between the complainants. Attention was drawn to the contradictions in the evidence of SF when compared to the evidence of PF and JF, and the contradictions in the evidence of PF as compared to JF. It was said that the credibility and reliability of PF and JF was so undermined by these contradictions that a jury could not, in the absence of objective supporting evidence, find the charges proved beyond reasonable doubt.
Counsel for the Director argued that the inconsistencies in the evidence were well ventilated in the closing addresses and that those inconsistencies would not be enough to render the verdicts unsafe and unsound.
The jury found the defendant not guilty in respect of the charge as against SF. Consequently it is entirely plausible that the jury chose to disregard SF’s evidence in its entirety or to the extent that it was contradictory to the evidence of PF and JF. It was open to the jury to accept the evidence of JF and PF over SF. To the extent that any evidence of PF or JF was inconsistent as against each other, or in respect of the agreed facts, those inconsistencies were not substantial and in our view, it was open for a reasonable jury to convict on the evidence. The verdicts were not unreasonable and can be supported having regard to the evidence.
The appeal against conviction should be dismissed.
The Sentence Appeal
The Director submitted that both the sentence and the non-parole period were manifestly inadequate. The Judge sentenced the defendant to seven years of imprisonment in respect of each of the three counts of offending against PF and made those three sentences of seven years concurrent. The defendant was then sentenced to six years of imprisonment in respect of each of the three counts of offending against JF, with those three sentences of six years to be served concurrently. The sentence for the offending as against PF was made cumulative on the sentence for the offending against JF. The Judge concluded:
There is thus a head sentence of 13 years. I fix a non-parole period of eight years. The head sentence and the non-parole period are less than would ordinarily be the case because of your age and your health.
On appeal, the Director advanced three contentions as to why the sentences were manifestly inadequate. First it was submitted that a sentence of seven years in respect of the offence of persistent sexual exploitation was grossly inadequate. The second was that the Judge erred in making the sentences imposed in respect of each count of offending as against PF wholly concurrent. Similarly it was submitted that the Judge erred in making the sentences imposed in respect of each count of offending as against JF wholly concurrent.
Counsel for the defendant noted that permission to appeal should only be granted to the prosecution in “rare and exceptional” cases.[10] Counsel submitted this was not such a case, that there was no error of law and that the sentence imposed was not manifestly inadequate.
[10] Everett v The Queen (1994) 181 CLR 295, 299.
Relevant Principles
A grant of permission is appropriate in order to determine a matter of principle, correct an error of principle, establish or maintain adequate standards of sentence, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, or to correct a sentence which is so manifestly inadequate that it amounts to an error of principle.[11]
[11] R v Harkin (2011) 109 SASR 334, 339; R v Osenkowski (1982) 30 SASR 212, 212-3; R v Nemer (2003) 87 SASR 168, 172; House v King (1936) 55 CLR 499, 504-5.
Jurisdiction exists to correct an inadequate sentence if it is likely to undermine public confidence in the ability of the courts to contribute to deterring the commission of crimes. This assists in maintaining confidence in the administration of justice.[12]
[12] Everett v The Queen (1994) 181 CLR 295, 306.
The rule of law known as double jeopardy remains relevant to the grant of permission to appeal. However, if permission is granted and the appeal is allowed, section 340 of the Criminal Law Consolidation Act precludes the court from having regard to it when resentencing. The court’s ability to temper a sentence in recognition of double jeopardy is removed.[13]
[13] R v Harkin (2011) 109 SASR 334, 342-3, 354-5; R v Abdulla (2011) 109 SASR 258, 264, 270-3.
This Court has recognised the existence of the “residual discretion” to dismiss a prosecution appeal even if permission is granted.[14] However, this Court has subsequently questioned, without deciding, whether the residual discretion exists in this State once permission to appeal is granted.[15]
[14] R v O’Connor [2012] SASCFC 15, [21].
[15] R v Fowler [2014] SASCFC 16, [12]-[13] wherein reference was made to the fact that Bugmy v The Queen (2013) 249 CLR 571 and Munda v Western Australia (2013) 249 CLR 600 were decided in a statutory context that is different to section 353(4) of the Criminal Law Consolidation Act. In these cases, the power to interfere in a sentence was expressed in the relevant Act in discretionary terms. In contrast, section 353(4) of the Criminal Law Consolidation Act obliges the court to interfere “if a different sentence should have been passed” and the discretion exists at the permission stage pursuant to section 352(1)(a)(iii). It was said in Fowler that the relevant High Court authorities “do not provide a firm basis for implying a residual discretion to decline to interfere upon an otherwise meritorious appeal”.
Discussion
The defendant’s offending against PF was very serious. This offending involved repeated sexual abuse when PF was a child leading to the offence of persistent sexual exploitation of a child. PF was then subject to rape on two occasions when an adult. The sentencing Judge imposed a term of imprisonment of seven years in respect of each offence. In our view, the penalty imposed for the offence of persistent sexual exploitation of a child was inadequate, and manifestly so, considering the grotesque circumstances of this case. On some occasions the victim was tied up, assaulted with objects and suffered painful injuries.
As Doyle CJ observed in R v D:[16]
In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.
[16] R v D (1997) 69 SASR 413, 424.
His Honour came to this conclusion after making the following observations:[17]
It is not necessary to repeat what the court has said so often in the past about such offences. I merely add this. They are offences that cause a feeling of outrage and revulsion in the community. The penalty must reflect that feeling. They involve a serious breach of trust. As this case makes clear, such offences cause serious harm to the victim in many cases. There is every likelihood that the effects of that harm will be prolonged, and perhaps lifelong. The courts must do what they can to protect children from such conduct. Deterrence is an important part of sentencing for an offence such as this. Although reasons for the offending vary, and sometimes the offenders are persons who were themselves sexually abused as children, it seems clear that such offenders are not usually persons who are unable to control their sexual instincts. While acknowledging that the punishment of offenders is only one factor that may limit the incidence of this offence, the courts must proceed on the basis that punishment has a part to play in deterring offenders.
Offences such as the present one have an insidious effect upon the community, and that is also something to consider. They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing.
It appears that the sexual abuse of children by persons in a position of trust is quite widespread. It may not be occurring more often than it did in the past. It may well be that it is now being detected more often than it was. Be that as it may, the offences that are involved come before the courts with disturbing frequency. It is for those reasons that I consider that the court should increase, to a moderate degree, the level of penalty imposed for such offences.
[17] R v D (1997) 69 SASR 413, 423.
We consider that a sentence of 12 years of imprisonment would be appropriate. A sentence of seven years of imprisonment for each of the offences of rape was within the range of sentences that could be expected for such offending. We consider the Judge’s approach in making the sentences for these three offences wholly concurrent was not appropriate. The rape offences were committed some years later than the persistent sexual exploitation offence. We consider that the issue of questions of concurrency or partial concurrency are better addressed in this matter through the principle of totality. This principle is to be applied when the sentence in respect of the offending against JF is determined. The question that then arises is whether the overall sentence to be imposed is crushing and, if so, what reduction should be made.
The offending against JF was also very serious. The sentence of six years of imprisonment imposed in respect the offence of unlawful sexual intercourse with a person under 12 was inadequate and manifestly so. The sentence in respect of the offence of unlawful sexual intercourse with a person under 12 should have been in the order of ten years of imprisonment.
The sentences for the offences of aggravated serious criminal trespass and the rape of JF when JF was an adult were within the range of sentences for such offending. Concurrency of the sentences for aggravated serious criminal trespass and rape was appropriate. As Peek J observed in Belczacki:[18]
It is quite usual for an information to contain one count charging an offence of serious criminal trespass and a further count charging an offence subsequently committed while on the same premises. While facts will vary greatly, in some such cases the factors in favour of a degree of concurrency of sentence will need to be afforded substantial weight. To illustrate that proposition, one may envisage one end of a spectrum as a case involving an opportunistic unlawful entry made with no particular purpose, perhaps just out of curiosity, that is followed by a much more serious crime committed inside the premises, perhaps a serious assault on an occupant unexpectedly encountered. In such circumstances, the two crimes may have little overlap. However, at the other end of the spectrum may be a case where the offender enters simply for the purpose of stealing goods that may be inside and, once inside, does exactly that.
At this end of the spectrum, there are substantial factors militating in favour of at least partial concurrency. ...
[Footnotes omitted.]
However, it was not appropriate for the Judge to order concurrency in respect of these two offences with the offence of unlawful sexual intercourse with a person under 12. As discussed earlier, the issues of concurrency should be addressed when considering the application of the principle of totality.
[18] R v Belczacki (2012) 112 SASR 85, 109.
When considering sentencing for multiple offences and the difficulties in determining a just sentence, regard should be had to the following observations of Wells J in Attorney General (SA) v Tichy:[19]
... Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[19] Attorney General (SA) v Tichy (1982) 30 SASR 84, 93.
As discussed above, it is our view that making the sentences for the three offences against PF wholly concurrent gave rise to a manifestly inadequate sentence. The sentence imposed for the charge of persistent sexual exploitation should have been cumulative on the sentence or sentences imposed for the two counts of rape. The rapes occurred after a lapse in abuse for many years. It is a highly unusual situation that a perpetrator would engage in a course of abuse against a minor and then commit a violent rape against that victim when an adult after a hiatus in offending. The adult offending had a different impact upon the victim and this should be recognised. At the same time as PF was beginning to obtain independence the defendant acted to reassert his dominance. On the second occasion PF had managed to move away from the defendant. Further, while this offending was unusual, significant weight needs to be attached to deterring perpetrators from continuing to abuse those that they know to be vulnerable.
The above reasoning also applies to the offending against JF. The sentence in respect of the offence of unlawful sexual intercourse with a person under 12 should have been made cumulative upon the sentences in respect of the other offending. In our view, the Judge’s failure to do so resulted in a manifestly inadequate sentence.
Resentencing
Having regard to the foregoing, we turn to the question of the resentencing of the defendant. The defendant’s convictions followed the rejection of his pleas of not guilty by a jury. There is no occasion for any reduction on account of contrition and remorse.
The Judge noted that the defendant was 67 years of age and suffered health issues, including coronary artery disease with unstable angina. It is possible that the defendant will die in custody. This Court has had opportunity to consider the case of an elderly defendant in poor health. The observations of Doyle CJ in Cave are pertinent:[20]
Those observations are relevant to this case. I agree that personal deterrence does not call for such a long sentence. A sentence that extends beyond the likely life of an offender cannot (to that extent) deter that offender. Nor does the protection of the public require such a long sentence. Mr Cave’s age cannot overwhelm all other considerations, although it is a matter to be taken into account. In R v Ellis [2010] SASC 118; (2010) 107 SASR 94 Sulan J, with whom the other members of the Court agreed (Duggan J at [1], Kourakis J at [120]), made the following pertinent observation:
[83] Courts have often extended a degree of mercy in cases of advanced age because each year of the sentence represents a substantial proportion of the period of life which is left to an elderly offender. Although the present case involves an elderly offender, there is the additional consideration that the appellant is an offender who has escaped the consequences of his criminal conduct for decades before finally being brought before the court. Had he been convicted of his crimes soon after committing them, the appellant would have spent a significant number of years in gaol in the prime of his adult life. Instead, he had the benefit of living what may arguably have been his best years as a free man. This benefit must reduce the force of the submission that the appellant will be spending a significant proportion of, if not all, the latter years of his life in custody.
Footnote omitted
In my opinion Mr Cave’s offending disentitles him to this exercise of mercy on the part of the Court. I accept that in a sense the head sentence can be said to be artificial or hypothetical, because there is no prospect of Mr Cave surviving that long. But, on the other hand, in my opinion the Court should not, because of that, reduce the head sentence to a figure likely to be reached before Mr Cave dies. To do so would significantly erode the elements of condemnation and general deterrence that are reflected in the sentence imposed on him.
These observations are relevant. Significant weight should be given to the considerations of general deterrence and condemnation.
[20] R v Cave [2012] SASCFC 42, [32]-[33].
In respect of the offending against PF, the offence of persistent sexual exploitation of a child called for the fixing of a term of imprisonment of 12 years. Each of the rape offences call for terms of imprisonment of seven years.
In respect of the offending against JF, the offence of unlawful sexual intercourse with a person under 12 called for the fixing of a term of imprisonment of ten years. The offence of aggravated serious criminal trespass called for a term of imprisonment of four years and the offence of rape called for a term of imprisonment of seven years. The latter two sentences should be concurrent.
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.