R v Fleming

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FLEMING
[2011] SASCFC 41
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice David and The Honourable Justice Kourakis)
10 May 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE
Appeal against conviction by verdict of jury – appellant found guilty of persistent sexual exploitation – evidence of domestic violence inadvertently led at trial – trial Judge refused application to discharge jury – trial Judge gave directions relating to evidence of domestic violence in summing up to jury – whether failure to discharge jury caused miscarriage of justice – appellant gave evidence that he suffered from a lack of memory – trial Judge posed “How does one know that one’s memory is bad if someone cannot remember something?” – whether trial Judge improperly undermined appellant’s evidence that he suffered from a lack of memory – whether a miscarriage of justice occurred – whether trial Judge misrepresented victim’s mother’s evidence regarding appellant’s denial of wrongdoing – whether a miscarriage of justice occurred.
Held: Appeal dismissed – whether there has been a miscarriage of justice depends on the particular case – failure to discharge jury did not cause a miscarriage of justice – it must be assumed that the jury followed the directions of the trial judge – trial Judge’s directions about the appellant’s memory did not amount to a miscarriage of justice – trial Judge’s directions about the victim’s mother’s evidence regarding appellant’s denial of wrongdoing did not amount to a miscarriage of justice.
Criminal Law Consolidation Act 1935 (SA) s 50, referred to.

R v FLEMING
[2011] SASCFC 41
Court of Criminal Appeal: Sulan, David and Kourakis JJ

SULAN J: I agree with the reasons of David J. I would dismiss the appeal.
DAVID J: The appellant appeals against his conviction by verdict of a jury of one count of persistent sexual exploitation contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). The alleged victim (“V”) was a five and half year old female. The prosecution case against the appellant was that at the time of the offending he had been in a relationship with V’s mother and, on a number of occasions, committed at least more than one act of sexual exploitation on V.
The appeal focuses on whether the Judge should have discharged the jury when evidence was inadvertently introduced on the topic of alleged domestic violence by the appellant. The appellant now argues that the jury should have been discharged or alternatively that the directions given by the trial Judge when he refused to discharge the jury were inadequate.
Other aspects of the appeal include the direction given by the trial Judge about the appellant’s evidence that he had a poor memory and also directions given to the jury correcting one aspect of defence counsel’s address. The appellant argues that the directions on both topics were erroneous and amounted to a miscarriage of justice.
The trial
I set out the information in full:
First Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Stephen John Fleming between the 22^nd day of June 2004 and the 14^th day of May 2007 at Salisbury North and other places, committed more than one act of sexual exploitation of [V], a person under the age of 17 years, over a period of not less than three days.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation were:
a)indecently assaulting [V] by touching her on her vagina, causing her to touch his penis, and pulling her pants down to expose her bottom;
b)having sexual intercourse with [V] by inserting his finger into her vagina; and
c)causing [V] to expose her body.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Stephen John Fleming between the 1^st day of May 2007 and the 14^th day of May 2007 at Salisbury North, had sexual intercourse with [V], a child under the age of 14 years, by inserting a finger into her vagina.
As can be seen, the second count was laid as an alternative to the first. Consequently, no verdict was taken on the second count on a verdict of guilty on count one.
There was no dispute that the trial Judge properly directed the jury that, for count one to be proved, three elements must be proved beyond reasonable doubt, namely:
1The accused must be an adult;
2V must be under the age of 17 years; and
3The accused committed more than one act of sexual exploitation of V over a period of not less than three days.
There was no dispute that the alleged acts as particularised in count one were acts of sexual exploitation for the purposes of the charge.
The prosecution at trial called three witnesses namely V, her mother (“M”) and V’s aunt (“S”).
There was also no dispute that the appellant commenced a relationship with M in June of 2003 when V was approximately five and half years old. There was undisputed evidence that, although they were in a relationship, the appellant did not permanently reside with M at any time but lived with her from time to time and regularly stayed nights. As a result of their relationship the appellant and M had two children namely a daughter (“EB”) who was born in June 2004, and a son (“EN”) who was born in May 2005.
Undisputed evidence was presented at trial that EB had special care needs. She required frequent hospitalisation and suffered from a condition whereby she required special night time feeding through a machine that facilitated feeding directly into the stomach. At the time of the offending, V shared a room with EB which, on the Crown case, was significant because it was agreed that for a period of time the appellant would come into the room at a particular time of night to undertake the feeding process of EB.
V gave evidence that on a number of occasions when the appellant came into feed EB through the machine, he would rub her vagina under the bed covers, but on top of her pyjamas. She said that this happened on most nights that he stayed and always at the same time of night when the evening feeding was to start. This took place over a long period of time.
She gave evidence of a separate occasion when she heard the appellant come into her bedroom and he grabbed her hand and made her touch something wet. The prosecution at trial argued that the jury could infer that he had placed her hand on his penis.
She gave further evidence of an occasion when she came out of the bathroom with a towel wrapped around herself and saw the appellant who ripped the towel from around her and then put his finger into her vagina.
She gave evidence of a number of occasions that she complained to her mother about what the appellant was doing to her. The complaints and the directions given by the Judge about them are not the subject of any grounds of appeal. On one occasion V, M, the appellant and EB, were in a car having gone to the beach and V told her mother that the appellant had touched her. There was then an altercation and V said that the allegations were not true. Her explanation for withdrawing them was that she did not want to go to court. On a subsequent occasion she was in the bath with EN. She was then about nine and a half and she complained to M that the appellant had touched her in the bedroom and as a result M took her to the police.
When cross-examined it was put to her that the appellant had never touched her as she had described. She denied that assertion.
M gave evidence of the undisputed background of the family arrangements concerning the appellant and their two children and V. During the course of her evidence she touched on issues of domestic violence perpetrated on her and V by the appellant. I will return to that in detail when I deal with the grounds of appeal. She also gave evidence that the appellant offered to take over the night time feeding of EB, thus supporting the evidence of V that there were times when he was alone with V and EB in V’s bedroom. She gave evidence of the complaint that was made by V about the appellant which was eventually withdrawn and also she gave evidence about the final complaint which resulted in her taking V to the police station.
The final prosecution witness was the aunt of V and the sister of M namely, S. She gave evidence of a complaint made by V to her about the appellant coming into V’s bedroom and touching her on the vagina.
The appellant gave evidence on oath denying the allegations. He denied touching V on the vagina whilst feeding EB. He denied putting his finger into her vagina. He said that he did not recall any of the conversation whilst in the car and during a drive near the beach when V made a complaint about the appellant and then withdrew it. He said when giving that evidence that he had memory problems and that he forgets a lot and said he took medication for a facial injury which he suffered three years before the trial. He also gave evidence that he has medication for schizophrenia with which he was diagnosed in 2001. However, he gave clear evidence that he did not molest V in any way.
The case was therefore left to the jury on the basis of the evidence of V being diametrically contradicted by the evidence of the appellant.
Appeal
As amended there are two grounds of appeal. I deal with each in turn.
Ground 1
Ground 1 is as follows:
1.That the learned trial Judge’s failure to discharge the jury based on the evidence of the complainant’s mother at trial has resulted in a miscarriage of justice.
1A.The introduction to the trial of the evidence of the domestic violence counsellor referring to domestic violence committed by the appellant, amounted to a miscarriage of justice.
Both Ground 1 and 1A are concerned with the introduction of evidence of domestic violence by the appellant and, it having been introduced, the failure of the trial Judge to discharge the jury and, as the argument developed, certain aspects of his directions which counsel submit are inadequate.
It is important to note that in cases involving allegations of sexual impropriety in domestic situations evidence of extraneous violence is often allowed for many reasons. Such evidence is often relevant to the question of the relationship between the parties or providing a reason or reasons as to why an alleged victim may not complain. However, in this case that type of evidence was not sought to be led by the prosecution. If it was, the basis for leading it would have to be clearly set out and the appropriate directions as to its use would have to be carefully explained to the jury. That was not the case here. Evidence suggesting extraneous violence by the appellant within the domestic situation came out inadvertently. It is important that I set out clearly those parts of the evidence which refer to domestic violence.
In her evidence in chief, after giving evidence of the final complaint that she had made to her mother, V was asked the following question:[1]
QWhat happened after you told mum.
AShe asked me to – if I would – if I wanted her to ring my counsellor Narelle and I said ‘Yes’ and then she rang her and then – I think she rang my grandparents, then the next day we went to the police and told them what had happened.
The importance of Narelle is that it came out in evidence that that person was V’s domestic violence counsellor, thus introducing into evidence the fact that she needed the assistance of such a person.
[1] T26.15-20.
During the course of the evidence of M, she made a number of references to violent behaviour on the part of the appellant. I set out that evidence in full. Early in her evidence in chief she gave the following evidence:[2]
[2]    T40.37-41.10.
QDid he stay over.
AYes.
QAre you able to say how frequent that was.
ASometimes quite frequently. Some nights maybe six times a week or the following week he might stay over once or twice. It would vary depending on his moods.
QDid it depend on anything else.
AIf there was a situation, if he got angry, got aggressive, he physically hurt me or [V], then he would disappear for three days. That was his routine. He would disappear for three days, we wouldn’t hear from him and he would just turn up.
Further on:[3]
[3]    T51.21-32.
QDid you take her to the police station.
A[V] said she will not talk to anybody but Narelle. Narelle was her counsellor from Domestic Violence Unit. I did ring her but she said she does domestic violence, she didn’t know how to deal with it, she said she needed some time. It was a very stressful weekend for us. I was able to get back onto Narelle Monday morning and she apologised, she said she just needed some time. I said ‘We’ve all had a very bad weekend, we all don’t know how to deal with this’. I then took her to the police Monday. I rang the police and they made arrangements for a female that could interview her.
During cross-examination:[4]
QAnd I suggest after [EN] was born he continued to try and help around the house.
AYes, all nice things to suck us in. It’s like a vicious circle. He would be really nice, which could maybe go for two weeks, and then suddenly he would just go mental, push me, shove me, elbow me and then he would disappear for three days, we would not see him for three days. And then he would turn up again and then the routine would start again, be really nice to us, do housework for us, clean, did beautiful work in the backyard to impress the social worker who come out, said to hide my pregnancy, did the backyard up, made it look really really nice to impress her, and then next thing you know he’d become nasty and vicious again and start again.
Shortly after that last passage of evidence and before he had completed his cross‑examination, defence counsel asked the trial Judge to discharge the jury because of mention of Narelle and domestic violence and the fact that she was a domestic violence counsellor.
[4]    T57.13-27.
At that stage the trial Judge immediately refused the application. That submission by defence counsel for a mistrial and the refusal of the application was all done in the absence of the jury. When the jury returned, defence counsel then asked the following questions:[5]
QI just want to put a few propositions to you. I want to suggest that although [the appellant] got angry at times, he never hit you.
AHe would elbow me, shove me, push.
QHe never hit [V], I suggest.
ASame things: he would elbow, shove and push and ripped the back of her ankle open with the security door, hit her with the pram when he swung it out once and hit [V] with that as well out of anger.
It is to be noted also that, at that stage, no direction was given to the jury about the introduction of evidence of violence nor was any direction sought. Defence counsel understandably did not want to highlight the matter any further.
[5] T64.6-14.
The topic then arose again just before the prosecutor gave his final address to the jury. The Judge had received a note from the jury which read “Ask [M]: where was [V’s] counsellor Narelle from?”. The next part of the note was irrelevant but it ended with the words, “Clarification of the home situation”.
After hearing submissions from counsel the trial Judge then gave this direction to the jury on that topic:[6]
I tell you that I have received your note. I have raised it with counsel. I’m going to give you some directions about some of those matters. It may be that counsel address some other topics. In particular, I tell you now that I’m going to direct you to ignore the evidence about Narelle and to ignore the evidence of [M] about any physical violence or abuse that she suffered or that [V] suffered. I’m going to direct you that they’re irrelevant to your considerations of the sexual offences charged against the accused. So you won’t need to know where [V’s] counsellor, Narelle is from, even if you could know that because you’ve asked also for clarification of the home situation.
In our system of justice, in particular our criminal courts, the court is reliant on the parties – that is, the Crown and the defence – to adduce evidence before a jury such as you. The court doesn’t adduce evidence and whatever evidence either party wants to put before us is the evidence that we’re going to have to deal with and you, the jury, will decide the case on it. So even though you might want clarification of certain things, even if you might want to hear about other matters that occur to you during the trial, unfortunately in our system, because it’s an adversarial system we’re reliant on what parties want to put before you.
The topic was finally dealt with by the trial Judge in his charge to the jury when he said:
You heard from [V] that her mother rang her counsellor, Narelle – that is, [V’s] counsellor. [M] later referred to Narelle as being her daughter’s domestic violence counsellor. You heard evidence from [M] that the accused had sometimes been aggressive, even violent towards her and sometimes towards [V]. You also heard from [M] that the accused sometimes made nasty comments to her.
I direct you to ignore all of that evidence. It is not relevant to any issue you have to decide here. I direct you that you must not reason that just because you might be satisfied or think that the accused did the things about which [M] spoke, he is, thereby, the sort of person who is more likely to have committed the sexual offences on [V] that are alleged against him. That is an impermissible method of reasoning and I direct you not to reason in that way.
[6] T104.10-35.
Mr Heffernan, for the appellant, now argues that the only way to ensure a fair trial was to discharge the jury. He argues that because the issue in the case was a straightforward contest between the credibility of V and the credibility of the appellant and that the evidence was stark and brief, any extraneous impermissibly prejudicial evidence would be highlighted. He also argues that the problem was compounded by the first direction which the trial Judge gave shortly before the prosecutor addressed the jury.[7]
[7] Set out above at [28].
He also points out a further problem. When the trial Judge made the original ruling not to discharge the jury, he did not at that stage rule that the evidence was inadmissible. They are, of course, two different considerations. The evidence may be inadmissible but its inadvertent reception could be cured by direction. As a result of failing to make a formal ruling as to its admissibility, defence counsel was then obliged to put his case on the question of violence, when if a ruling had been given there would be no need to highlight that issue. Mr Heffernan points out that this created a further aspect of prejudice.
There is a certain force in what Mr Heffernan puts. In particular, I am concerned that the first direction to the jury could give the impression that there was some sinister impermissible material which only counsel knew about which had not been introduced into the trial. That was unfortunate. However, the Judge did make the matter clear in his charge to the jury when he told them to ignore the evidence because of its irrelevance and gave a correct propensity warning.

Despite the imperfections of what occurred, I am of the view that the directions given by the learned trial Judge at the end of the day in his summing up made it clear that the impugned evidence was not relevant and should not be used to the prejudice of the appellant in any way. It is trite to say that decisions as to whether there has been a miscarriage of justice in situations such as this must depend on the particular case. It must be assumed that the jury followed the final clear directions of the Judge on that topic.
I would dismiss that ground of appeal.
Ground 2
Ground 2 is as follows:
2.The Learned Trial Judge erred in directing the jury about the applicant’s evidence in particular on the following topics:
(i) His memory.
(ii) His denials of the allegations.
Ground 2(i)
When the trial Judge was summarising the appellant’s evidence and setting out the defence case, he said the following:
Mr White, in his address to you, referred to the accused’s memory. I refer to some of the evidence that the accused gave when Mr White was questioning him:
QDo you have any memory problems.
AYes.
QWhat sort of memory problems do you have.
AI forget a lot.
QWhy is that.
AI don’t know if it’s some medication or whether it’s because I’ve had a facial injury.
QLet’s deal with the facial injury first. When did that happen.
AAbout three years ago.
QWas it after the last occasion when you were told to get out, or before.
AThat was after.
QWhat happened to your face.
AI’m actually not quite sure whether someone actually got stuck into me or whether I come off my pushbike, but I actually told the doctors that I come off my pushbike because I was riding it at the time.
QIn terms of medication that you talked about earlier, what medication was that.
AEffexor and Zyprexa.
QWhat’s that for.
ASchizophrenia.
QWhen were you diagnosed with schizophrenia.
A2001.
QHave you been on medication ever since that time.
AYes.
QHas the medication prevented schizophrenic episodes.
AYes. It just gives me sort of like shadow effects and the drugs calm me down; like there’s a shadow always on my shoulder type thing.
There was reference by Mr White to memory and schizophrenia. You heard no expert evidence about either memory or schizophrenia. You might think that memory can be a somewhat elusive concept. How does one know that one’s memory is bad if someone cannot remember something? You will have to take those matters into account and the accused’s explanation as to why it is that he has, or he thinks he has, memory problems, when you are considering his evidence.
Mr Heffernan now argues that the trial Judge has effectively dismissed the evidence that he suffered from a lack of memory and, to a certain extent, inferred that a person cannot comment on his own lack of memory especially when he posed the question “How does one know that one’s memory is bad if someone cannot remember something?”. However, at the end of the day his directions were to the effect that it is a matter for the jury as to whether the appellant had a problem with memory or not, especially in the light of the fact that there was no expert evidence called in relation to the appellant’s schizophrenia. It may have been much better if the trial Judge had not posed the above question about a person’s ability to remember whether they have a bad memory, but having done so it could not amount to a miscarriage of justice.
Ground 2(ii)
In his final address to the jury defence counsel at trial, Mr White, said the following:[8]
Members of the jury, in the end what I’m trying to get down to is the defence can only control what the defence can control, and that is [the appellant], when confronted with these things each time, in his own words and in the words he has asked me to say on his own behalf, the only time he was confronted each and every time he said ‘I didn’t do it’. What else are you supposed to say? ‘Here is a dossier of proof that I didn’t do it’, or ‘I just didn’t do it’. His immediate reaction was ‘I just didn’t do it’. The on the one occasion we know about in the car she admits to her mother ‘Oh no, that’s a lie, it’s a lie, it’s not true’.
[8] T121.25-36.
The trial Judge commented to the jury on that part of defence counsel’s address in the following terms:
Mr White also referred to the accused immediately denying these allegations every time they were raised with him. Of course, he does not give evidence of that and it is the evidence of [V] and [M]. You might think [V’s] evidence was to the effect that the accused denied the allegations but you might think that [M’s] evidence was not to that precise effect every time and she qualified those answers on at least a couple of occasions to say ‘Well, I’m not too sure that he did deny it’ and other things were said and done.
Mr Heffernan now argues that the Judge has incorrectly undermined that submission of defence counsel because what he said to the jury is inaccurate. In particular, when she was initially cross-examined by defence counsel, M agreed that every time that an allegation was made to the appellant of sexual misconduct he always denied it.[9] Later in cross-examination it was put to her that on an occasion when M was screaming at the appellant, he denied any sexual impropriety. Her answer to that question included the comment that she could not remember what his reply was. Further on in cross-examination:[10]
QThat during this drive, whenever the topic was brought up about what [V] was complaining about, he always said he didn’t do anything.
ANo, he said ‘We need to discuss this first before we go to the police, we need to talk about it first’. That’s when he explained that I would go to gaol, started threatening us, scaring [V] and scaring us.
[9] T52.24-28.
[10] T65.8-14.
Mr Heffernan now argues that those two passages of cross-examination to which the trial Judge was obviously referring hardly amount to a qualification of her earlier evidence that the appellant immediately denied the allegations every time they were raised. Those passages of evidence are slightly ambiguous. On one occasion she cannot remember if there was a reply when an allegation was made, and on the other occasion there was no denial but there was no admission either. It may have been better if the trial Judge had read those passages out before drawing the conclusion he did. Nevertheless, those comments can hardly amount to a miscarriage of justice.
I would dismiss both aspects of ground 2.
Conclusion
I would dismiss the appeal.
KOURAKIS J: I would dismiss the appeal. I agree with the reasons of David J.

[2011] SASCFC 41

10 May 2011

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