R v F, C - [2017] SADC 71

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v F, C
[2017] SADC 71
Ruling of His Honour Judge Chivell
4 July 2017
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
Nine charges involving sexual offences against three complainants. Application to sever the charges to allow for a separate trial for each complainant. Whether evidence cross-admissible, having regard to issues of discreditable conduct and propensity. Evidence held cross-admissible.
Application refused.
Criminal Law Consolidation Act 1935 (SA) s 278(2a); Evidence Act 1929 (SA) s 34P(1), s 34P(2), s 34P(3); R v N, SH [2010] SASCFC 74; Sutton v The Queen (1984) 152 CLR 528; De Jesus v The Queen (1986) 68 ALR 1; R v Maiolo (No 2) (2013) 117 SASR 1; R v MJJ; R v CJN (2013) 117 SASR 81; R v C, CA [2013] SASCFC 137; R v Glover (1987) 46 SASR 310; R v Sutton (No 2) (1983) 32 SASR 553; R v M, BJ (2011) 110 SASR 1; Phillips v The Queen (2006) 225 CLR 303, referred to.

R v F, C
[2017] SADC 71

The accused is charged on one information with nine sexual offences against three children. The children are sisters, and the accused is their uncle. I will call them G, S and D. The alleged offences occurred between about 1989 and 1998.
The alleged offences consist of:
·three counts of unlawful sexual intercourse with a person under 12 years by inserting his fingers into G’s vagina;
·one count of indecent assault of a person under 12 years by touching G’s vagina;
·two counts of indecent assault of a person under 12 years by touching S’s vagina (one of which also includes touching S’s ‘bottom’);
·three counts of indecent assault of a person under 12 years by respectively touching D’s vagina, kissing D’s vagina and kissing D’s breasts.
The joinder and severance of charges of sexual offences is authorised by s 278(2a) of the Criminal Law Consolidation Act 1935 (SA). That section provides:
278—Joinder of charges
…
(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.
The use of the word ‘may’ in sub-s (b) gives me a discretion to order a separate trial, but only if evidence in relation to that count is not admissible (cross‑admissible) in relation to each other count relating to a different alleged victim.
That discretion is to be exercised judicially. In R v N, SH, the court said:[1]
In our view, the amendment of s 278 by the insertion of subsection (2a) does not alter the general proposition that if the evidence on one count is not admissible on the other count or counts, the Court will usually exercise its discretion to order separate trials, particularly in sexual cases. The section limits the Court in deciding the cross admissibility of the evidence[2] but upon the Court determining the evidence is not cross admissible the Judge, in exercising his or her discretion, must have regard to the principles referred to in Sutton and De Jesus.[3]
[1] [2010] SASCFC 74 at [44].
[2] Criminal Law Consolidation Act 1935 (SA) s 278(2a)(c).
[3] Sutton v The Queen (1984) 152 CLR 528; De Jesus v The Queen (1986) 68 ALR 1.
Discreditable Conduct
Evidence that a person has committed sexual offences other than the charged offence is evidence of ‘discreditable conduct’. Its admissibility is therefore governed by s 34P of the Evidence Act 1929 (SA).[4] That section provides:
[4] Section 34P(1) specifically refers to ‘discreditable conduct, whether or not constituting an offence’ as discreditable conduct evidence. See also R v Maiolo (No 2) [2013] SASCFC 36; (2013) 117 SASR 1 at [131] per Peek J.
34P—Evidence of discreditable conduct
(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose (impermissible use); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
…
The prosecution argues that the evidence of each complainant is admissible in relation to each other count for two categories of ‘permissible’ purposes:
(1)Non-propensity purposes
(a)the prosecution argues that the evidence will ‘explain the complete context of the offending and the relationship between the parties, including the nature and extent of the offending, the lack of complaint on the part of each complainant, and why the accused was emboldened to commit the offending’;[5]
(b)‘to show a similarity of account across the evidence of each complainant for the purpose of “improbability reasoning”, namely to allow the jury to assess the totality of the evidence with a view to concluding the improbability of the complainants each giving evidence of the same or similar offending unless those accounts are in fact true’.[6]
[5] Written submissions, [51(i)].
[6] Written submissions, [51(ii)].
These being non-propensity uses for the evidence, it may be admitted if I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused, and that this use of the evidence 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.
In R v Maiolo (No 2),[7] Peek J said:
… the combined effect of ss 34P(2)(a) and 34P(3) is to require, for evidence of discreditable conduct to be admissible, that it must have a degree of probative value which substantially outweighs any prejudicial effect it may have on the defendant and, in assessing the possibility of prejudicial effect (and hence the question of whether that possibility is substantially outweighed), 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 (ie of impermissible use).
[7] (2013) 117 SASR 1 at [54].
In R v MJJ; R v CJN,[8] Kourakis CJ described the process of weighing the probative value of the evidence as follows:
The impermissible use identified in s 34P(1) of the Evidence Act is the drawing of an inference of guilt from the fact that the accused has engaged in other conduct which has no relevant connection to the offence other than to share the epithet discreditable. Evidence of discreditable conduct of that kind may, admittedly with some imprecision, be described as evidence of a mere, or general, propensity. Section 34P(2)(b) expressly provides for the admission of discreditable conduct evidence which shows a particular propensity or disposition of the defendant. The particular propensity or disposition must be strongly probative of the offence charged, and outweigh its prejudicial effect. Discreditable conduct which has a permissible use, other than by way of demonstrating a particular propensity, need only have a probative value, whether weak, moderate or strong, which substantially outweighs its prejudicial effect.[9]
At the core of the assessment of the probative value of discreditable conduct evidence are two analytical steps. The first is to identify the particular fact which is in issue. The second is to consider how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact. Resorting to generalities such as “context”, “background” and “underlying unity” will seldom illuminate the analysis.
[8] (2013) 117 SASR 81 at [18] and [19].
[9] Evidence Act 1929 (SA), s 34P(2)(a).
Thus it is not necessary to assess the probative value of the evidence for the purpose of s 34P(2)(a) beyond making an assessment of whether it substantially outweighs the prejudicial effect of the evidence.
In R v C, CA,[10] Kourakis CJ described the probative value of ‘similarity of account’ evidence as follows:
The clearest basis for the cross-admissibility of the evidence of 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. I will refer to that basis for admissibility as the “similarity of account” basis and to evidence admitted for that purpose as “similarity of account evidence”. The strong probative force of similarity of account evidence was explained in Hoch v The Queen (Hoch). It arises out of the improbability of persons independently imagining or concocting stories with a high degree of similarity of detail. Section 34S of the Evidence Act has removed the common law condition for the admissibility of similarity of account evidence established in Hoch. It is no longer a necessary condition of admission that the trial Judge be satisfied that there is no possibility of collusion between the complainants. That is now a factual question for the jury.
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 complaints, 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.
[Citations omitted]
[10] [2013] SASCFC 137 at [57-[58].
I do not accept the submission of Ms Chapman SC, counsel for the accused, that the remarks of the Chief Justice in C, CA indicate that the similarity of account must have ‘strong probative force’. That would be inconsistent with s 34P(2)(a), and with what his Honour said in the passage quoted above. I think that his Honour meant to convey that the similarity of account evidence in C, CA was ‘strong’, and went on to explain why that was the case. The same applies to his Honour’s use of the word ‘overwhelming’ in [88] of the judgment. Again, his Honour was referring to the evidence in that case, and was not suggesting that as a criterion for admissibility.
The Evidence
The accounts of the three complainants in this case are helpfully summarised in the table attached to Ms Chapman’s written outline of submissions. I will adopt her summary for the purposes of the discussion.
As to G
Count 1 – USI - digital penetration
1.1.89 – 31.12.90
Age 5 or 6
Fulham Gardens
Sleeping in [cousin’s] room on trundle bed; woke up to uncle touching vagina; he was naked kneeling next to the bed; one or more fingers in vagina; she tried to turn; he turned her back onto back and continued.
Uncharged – USI - digital
4 – 5 times
Same as described in count 1.
Once he gave up and kissed her on forehead before he walked out of room.
Aged 6 – 11
19.1.90 – 28.1.96
Count 2 – USI - digital penetration
1.1.94 – 31.12.95
Age 10 or 11
Fulham Gardens
Sleeping on sofa bed in spare room with [D]. Uncle bending over [D] with his hand on [D’s] vagina; then [G] started fidgeting/rolling to stop him; then [G] must have fallen asleep as she woke with underwear down, uncle naked and fingers in vagina.
Count 3 – USI - digital penetration
1.1.94 – 31.12.95
Age 10 or 11
Aldinga
Sleeping in lower bunk in room with [cousin]. Pretended to be asleep. Uncle
pulled down her pyjama pants and touching her vagina and fingers inside. She wriggling and moving to try to stop him. Uncle naked. Eventually he left. [Cousin] awake.
Count 4 – IA - touch on vagina
1.1.94 – 31.12.95
Age 10 or 11
Aldinga
Same holiday as count 3. Sisters and cousins playing in room. Uncle trying to grab them. He put his hand down the front of our pants. This was the last time.
As to S
Count 5 – IA – touch bottom and vagina
1.1.92 – 31.12.93
Age 5 – 6
Fulham Gardens
Sleeping in [cousin’s] room with someone else who was on the trundle. Uncle in jocks. He lifted her top or nightie and hand down back of underwear. She moved around but he did not stop.
Count 6 – IA – touch vagina
1.1.97 – 31.12.98
Age 9 – 11
Aldinga
Sleeping on sofa bed upstairs with [cousin]. She was awake. He wearing jocks. Uncle tried to get in bed behind her. His body cupping hers. Hand down back of undies touching her vagina. He made a pushing motion from behind.
As to D
Counts 7, 8, 9 – IA x 3 – touch vagina, kiss vagina, kiss breasts
1.1.97 – 31.12.98
Age 7 - 9
Fulham Gardens
Sleeping on lounge in lounge room. Woke up to see uncle walking through lounge room door; she pretended to be asleep. He knelt next to her and pulled her undies down. His fingers touched her vagina; can’t recall if he put them inside. He started kissing her vagina then moved upwards and kissed on her breast area.
Uncharged
June 2006
Age 16
Germany
Overseas with family for World Cup. Sharing bedroom with [cousin]. Woke to blankets being pulled back. Saw uncle near end of bed. Pushed him with both hands to chest and he fell backwards onto the floor. He got up and ran out to the bathroom. He wore jocks.
The prosecution also proposes to lead evidence of a number of ‘uncharged acts’ in relation to G which she says occurred at around the same time or later than count 1, and one such act in relation to D, which she says happened much later, when she was 16 or so. It is not necessary to particularise this evidence, since the admissibility of these acts is not before me, and the evidence does not affect the cross-admissibility of the charged acts.
Ms Chapman concedes that there is a ‘degree of similarity’ in these accounts, particularly as to the setting for the alleged conduct, the ages of the complainants at the relevant time, and the sexual nature of the conduct.[11]
[11] Outline of Submissions, [11].
There are some differences in the accounts, particularly as to the precise behaviour alleged, but that, in my view, does not detract from its probative force. As Kourakis CJ said in C, CA:[12]
The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication like the fact that the complainants did not live with their fathers. The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub-conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged.
[12] At [65].
No specific prejudice is suggested by the defence. The prejudice which is inherent in discreditable conduct evidence is that the jury, or judge sitting alone, will engage in ‘bad person’ reasoning. In C, CA, Kourakis CJ explained:[13]
The mischief to which s 34P(3) of the Evidence Act is directed is the risk that the tribunal of fact, whether a judge or jury, will be distracted by the impermissible use of evidence if that use cannot be sufficiently differentiated from its permissible use. The uses referred to are forms of reasoning. Section 34P of the Evidence Act prohibits reasoning that a person who has engaged in discreditable conduct is, by reason of that bare fact alone, more likely than not to have committed the offence. Put another way, it is impermissible to reason that a person who has engaged in any form of discreditable conduct is likely to have a predisposition to commit the crime charged whether or not, as a matter of human experience, there is any probative connection between the conduct and the crime by way of predisposition or proclivity. I will refer to the impermissible reasoning as “bad person” reasoning.
[13] At [76].
In this case, the ‘similarity of account’ evidence can easily be distinguished from ‘bad person’ reasoning, and can easily be ‘kept separate and distinct’ from impermissible reasoning by directions to the jury which are commonly given, and which the jury can be presumed to understand and properly apply.[14]
[14] R v Glover (1987) 46 SASR 310 at 312 per King CJ.
Taking all these matters into account, I conclude that the requirements of s 34P(2)(a) and s 34P(3) of the Evidence Act have been met. The probative force of the similarity of account evidence substantially outweighs any prejudicial effect it may have on the accused, and its use is, and can be kept, sufficiently separate and distinct from ‘bad person’ reasoning so as to remove any appreciable risk of the evidence being used for that purpose.
The evidence is therefore cross-admissible – the evidence of each complainant is admissible in relation to each other count relating to a different alleged victim, so there is no discretion to order a separate trial pursuant to s 278(2a) of the Criminal Law Consolidation Act.
Propensity Evidence
The prosecution asserts that the evidence of each complainant is also admissible in relation to the counts involving the other complainants because it discloses that the accused has a specific propensity, or ‘disposition’ (or proclivity), to behave in a particular way. The submission is:[15]
The evidence of each complainant reveals a tendency to commit a specific type of crime, namely sexual assaults of a very similar nature on each complainant, in a brazen fashion and in particular opportunistic circumstances, against a particular class of child. The features of the offending that give rise to tendency or propensity reasoning are:
(i)The accused on each occasion exploited an opportunity to offend when the complainants were staying in the same house as him overnight. The final uncharged act in relation to [D] is an exception to this, but occurred in similar circumstances where the accused and [D] were staying in the same hotel.
(ii)The offending occurred on each occasion in the presence of another child, demonstrating a particular brazenness to the accused’s conduct. The final uncharged act in relation to [D] is an exception to this.
(iii)In relation to each complainant, the offending involved the accused touching the complainant’s vagina underneath her clothing.
(iv)The accused’s conduct towards each complainant reveals a tendency to go no further than touching or digitally penetrating the complainant’s vagina.
(v)The bulk of the offending occurred in circumstances giving rise to an inference that the accused believed the complainant was asleep, and exploited the opportunity to offend against them. The exception to this is the incident giving rise to count 4 on the Information, and uncharged acts in relation to [D] and [S].
(vi)The accused’s behaviour toward each complainant outside of the offending conduct did not involve any typical grooming behaviours.
[15] Outline of Submissions, [70].

In C, CA, Kourakis CJ explained the process whereby propensity evidence may lead to a finding of guilt as follows:[16]
The second basis for cross-admissibility is that the evidence showed the appellant to have a particular propensity to engage in the conduct described by the complainants. I should first explain further what I mean by a propensity basis for cross-admissibility. It is that the evidence disclosed a proclivity on the part of the appellant to abuse the access he had to his son’s friends for the purposes of gratifying his paedophilic desires. The reasoning in support of a finding of guilt based on the demonstration of a particular propensity differs markedly from similarity of account reasoning. I have explained the latter in [57]-[60] above. The former involves three essential steps in the circumstances of this case. The first step is to determine whether the evidence proves beyond reasonable doubt that the appellant committed sexual offences or other discreditable conduct against any one of the three complainants. If the jury are so satisfied with respect to at least one of the complainants, the second step is to determine whether the offending, in the context of the wider conduct, shows an innate behavioural proclivity to commit offences of the kind committed against the other complainants. If the jury are so satisfied, the third step is to take that particular propensity into account, together with the evidence directly bearing on the other counts, in determining whether or not the totality of the evidence has proved the offending alleged against either one, or both, of the remaining complainants.
Even though I have described the steps as sequential, it is permissible to consider the evidence given by two or more complainants together to arrive at both the intermediate and final conclusions. As Wells J explained in R v Sutton (Sutton),[17] circumstantial evidence is admissible and probative even though its full strength is only realised when it is reinforced by the combined force of the other items of circumstantial evidence.
[16] At [68]-[69].
[17] R v Sutton (No 2) (1983) 32 SASR 553, 562-563.
Of course, s 34P(2)(b) of the Evidence Act requires that the evidence have ‘strong probative value having regard to the issue or issues arising at trial’.
In R v Maiolo (No 2),[18] Peek J, when considering the meaning of the expression ‘strong probative value’ said:
In my view, the effect of these provisions is substantially to reproduce the common law prior to Pfennig or, in the apt words of Vanstone J, “to turn back the clock”.[19] However, it must be remembered that the Pfennig test (as to which it can safely be said there has been some controversy) is simply a way of assessing whether evidence does possess an appropriately strong probative value; putting that test aside, the critical task of assessing the requisite degree of probative force still remains. Thus, in Phillips v The Queen, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ stated in a joint judgment:[20]
[54] Despite that passage, and despite the reformulation of the tests stated in Pfennig v The Queen in R v O’Keefe, neither of those cases departed from a fundamental aspect of the requirements for admissibility: the need for similar fact evidence to possess some particular probative quality. The “admission of similar fact evidence ... is exceptional and requires a strong degree of probative force”. It must have “a really material bearing on the issues to be decided”. It is only admissible where its probative force “clearly transcends its merely prejudicial effect”. “[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind.” The criterion of admissibility for similar fact evidence is “the strength of its probative force”. It is necessary to find “a sufficient nexus” between the primary evidence on a particular charge and the similar fact evidence. The probative force must be “sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused”. Admissible similar fact evidence must have “some specific connection with or relation to the issues for decision in the subject case”. … [Footnotes omitted]
[18] (2013) 117 SASR 1 at [137].
[19] R v M, BJ (2011) 110 SASR 1, 11 [25].
[20] (2006) 225 CLR 303, 320-321.
Ms Chapman submitted that the evidence of each complainant, standing alone, does not establish a sexual proclivity which is strongly probative of the offending against each of the other complainants. She pointed out:
·D’s evidence could not establish a proclivity because it refers only to one incident;
·S’s evidence involves only two incidents. Even if that was enough to establish a proclivity, it would not, by itself, be strongly probative;
·since the evidence of D and S does not allege digital penetration, it could not establish a proclivity, let alone a proclivity with strong probative force, relative to G’s counts, which do involve digital penetration of the vagina.
I do not accept that it is appropriate to examine the evidence piecemeal like that, or to gauge whether each complainant’s evidence has strong probative value when considered in isolation, before it can be held to be admissible in relation to the other complainants. To do so would overlook the comments of Kourakis CJ in C, CA at [69] quoted above, that it is permissible to consider the evidence of two or more complainants together to arrive at what he called the ‘intermediate’ and ‘final’ conclusions. Quoting Wells J in Sutton,[21] his Honour said that ‘the full strength [of the probative value of the evidence] is only realised when it is reinforced by the combined force of the other items of circumstantial evidence.
[21] (1983) 32 SASR 553, 562-563.
Adopting the three-stage process outlined by Kourakis CJ in C, CA:
(1)the evidence of any one of the complainants is capable, if accepted by the jury, of proving beyond reasonable doubt that the accused committed a sexual offence against that complainant;
(2)the evidence in relation to at least one complainant, G in particular, is capable of showing an innate behavioural proclivity to commit similar offences in relation to the other complainants;
(3)the evidence may therefore be taken into account, together with the evidence directly bearing on the other counts, in determining whether or not the totality of the evidence has proved the offending alleged against either or both of the remaining complainants.
In my view, the evidence of such proclivity has strong probative force which can easily be used in a way which is separate and distinct from ‘bad person’ reasoning, provided that appropriate directions are given to the jury about the permissible use to which the evidence may be put.
The evidence is therefore cross-admissible for propensity purposes as well.
Having regard to s 278(2a)(b) of the Criminal Law Consolidation Act, the evidence being cross-admissible, I have no discretion to order separate trials.
For those reasons, the application for separate trials is refused.