R v Gary Graham Alexander No. SCCRM 95/487 Judgment No. 5557 Number of Pages 10 Criminal Law

[1996] SASC 5557

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA DOYLE CJ(1), DUGGAN(2) AND WILLIAMS(3) JJ

CWDS
Criminal law - jurisdiction, practice and procedure - judge's summing-up - Appellant charged with four counts of unlawful anal sexual intercourse; three counts relating to complainant G and the fourth alleged to have been committed on P whilst G was present - evidence of course of conduct admitted so as to establish nature of relationship between the appellant and G - whether trial judge required to direct jury on nature of relationship evidence and, in particular, to warn of impermissible use of such evidence. Held that in circumstances of this case the absence of such directions did not result in a miscarriage of justice. R v Dolan (1992) 58 SASR 501 at 503; The Queen v Arthur (1992) 163 LSJS 18 at 19, considered.

Discussion as to nature of relationship evidence. R v Ball (1911) AC 47; DPP v Boardman (1975) AC 421 at 452; Harriman v The Queen (1989) 167 CLR 590 at 630-631; The Queen v Etherington (1982) 32 SASR 230 at 235, considered.

HRNG ADELAIDE, 19 March 1996 #DATE 24:4:1996 #ADD 21:5:1996

Counsel for appellant:     Mr C Kourakis

Solicitors for appellant:    Caldicott and Co

Counsel for respondent:     Mr B Selway QC with him Mr T Cox

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed

JUDGE1 DOYLE CJ In my opinion this appeal against conviction should be dismissed. I agree with the reasons of Duggan J for doing so.

JUDGE2 DUGGAN J The appellant was presented for trial on an information alleging four offences of unlawful anal sexual intercourse. The first three counts alleged that intercourse had taken place with G, a fifteen-year-old male, and the fourth count alleged an offence against P, another fifteen-year-old male. The appellant was convicted of two offences against G and the offence alleged in relation to P. The first ground of appeal complains that the verdicts of guilty are unsafe and unsatisfactory; the remaining grounds complain of inadequate direction to the jury on the permissible and impermissible uses of evidence of offences not charged and the manner and extent to which evidence of each offence charged was relevant to other offences charged.

2. At the time of the first alleged offence in January 1994 the appellant was 37 years of age. According to the complainant G, he met the appellant in about January 1993 after being introduced by one of G's school friends. The appellant lived a few streets away from G's house. G said that he found he had interests in common with the appellant, in particular fishing, gardening and football. A friendship developed between the two and G paid frequent visits to the appellant's house.

3. G claimed that after he had known the appellant for approximately a year the appellant's mood changed and on one occasion in January 1994 when G was at the appellant's house the appellant grabbed him tightly around the waist, pulled him into a bedroom and had anal intercourse with him. G said he had the opportunity to run away but he felt intimidated and complied with the appellant's directions. According to G's evidence the appellant had intercourse with him on a regular basis after that and the remaining two counts in the information were representative of these occasions.

4. The appellant gave G a key to the appellant's house and, according to G, the offence charged in the second count took place on the first occasion on which G used the key to gain entry to the house. When first asked about this incident in examination-in-chief G expressed some doubt as to whether anal or oral sexual intercourse had taken place and the jury found the appellant not guilty on this count. The third count was based on an incident which G said took place in April 1994. He said that on this occasion the appellant showed pornographic video films depicting sexual intercourse between men. The appellant then had anal sexual intercourse with him.

5. The fourth count alleged the offence against P who had been a school friend of G. P said the incident took place on 13th July 1994. According to G he rang the appellant from a public telephone box on this occasion. He said the appellant found out that P was at the telephone box with G and the appellant asked G to bring P around to the appellant's house, which G did. Both G and P gave evidence that in the course of the visit the appellant told them to undress and, after they had done so, he had anal intercourse with P on the bed in his bedroom while G was lying naked on the bed.

6. Apart from the evidence of the two complainants the prosecution relied upon the combined effect of various items of circumstantial evidence, including the use by the appellant of a false name in his dealings with G's mother and, for a time, with G; evidence that the appellant gave G a medallion in the shape of a broken circle, the other half of the circle being kept and worn by the appellant; evidence that the appellant kept homosexual video films in his house and that G knew of them; evidence that the appellant was circumcised and that G knew of this; the fact that the appellant gave various presents to G and frequently contacted him on the telephone; evidence that the appellant gave G a key to his house; the fact that the appellant asked for and was given a photograph of G to display in his lounge room and notes written to G by the appellant.

7. The appellant gave evidence at the trial. He agreed that he was introduced to G by one of G's school friends and that he formed a friendship with G following the introduction. The appellant stated in examination-in-chief that he was a homosexual, but he denied the allegations made by G and P that he had sexual intercourse with them. He agreed that he gave G a key to his house, but stated that he did so in order to allow G to come around when he was feeling depressed and "needed some space". He said that G was permitted to walk through all areas of the house and it was argued by his counsel that this could explain G's knowledge of the video films. The appellant denied showing any of the video films to G. He denied inviting G and P to his house on the day of the alleged incident with P but he said they came around to see him after G had spoken to him on the telephone. He said that he gave the medallion to G as a symbol of their friendship. The appellant agreed he was circumcised, but said that G would have known this because he walked into the bathroom on one occasion when the appellant was having a shower.

8. The appellant was asked about the use of the false name. G gave evidence that the appellant used the name until he saw the appellant's real name on some documents in the house. G's mother said that at first the appellant used the false name whenever he called G on the telephone but later he started to use his real name. The appellant denied that he used the false name when introduced to G. He did, however, agree that he had used that name on one occasion when speaking on the telephone to G's mother. He said this was because G had told his mother that the appellant was a student at his school by that name.

9. The principal argument advanced by Mr Kourakis, for the appellant, in support of the ground of appeal that the guilty verdicts are unsafe and unsatisfactory was that G's conduct and his attitude to the continuing sexual relationship alleged by him could not be explained by his assertion that he was intimidated by threats from the appellant. Furthermore Mr Kourakis argued that there was an air of unreality about the events as deposed to by both G and P with no satisfactory explanation being given as to why they submitted to the appellant. It was argued that the claims by both complainants that they were overawed and intimidated by the appellant could not be accepted by a reasonable jury and that, as these claims were an integral part of their versions, it would be wrong to convict on a basis which did not involve such intimidation as an element.

10. I have already referred to G's claim that on the occasion of the first act of intercourse the appellant grabbed him and made him lie down on the bed. G said he did what he was told because he was frightened. He also stated that the appellant told him at this time that he loved him and that he wanted G to say that he loved the appellant. According to G's evidence the appellant made threats after the first incident that he would kill G or his mother if G told anyone about what had happened and that he would cause damage to their home. Later he threatened he would tell people at G's football club that G was a homosexual. G claimed that these threats were repeated from time to time in the course of the relationship. He told the police that he felt he had to keep in contact with the appellant because of the threats he had made. P also suggested in his evidence that he submitted to the appellant because he was intimidated by him. Mr Kourakis argued that it was highly unlikely that the two boys would have permitted the appellant to have his way with P if both boys were unwilling for that to happen.

11. It was also argued that previous statements by G to the police and in evidence at an earlier trial were inconsistent in certain respects with G's present evidence in the matter, particularly as to the time when the threats were made. Mr Kourakis also drew attention to discrepancies concerning the circumstances in which the key was handed over to G, discrepancies as between the evidence of the two complainants in relation to the events upon which the alleged offence against P were based and what he suggested were unsatisfactory features of G's evidence concerning the offence charged in the second count in respect of which the appellant was found not guilty.

12. In my view these discrepancies and others complained of by the appellant, taken by themselves, were not of a serious nature such as to cause any real concern about the reliability of the evidence of the two complainants. On the other hand the allegations of threats require careful consideration in the light of the continued relationship between the appellant and G. The course of events deposed to by both complainants in relation to the final incident with P also merits close inspection and analysis. Nevertheless after considering the matter and taking into account also the discrepancies to which I have referred, I am of the view that neither the evidence of G nor P is so unsatisfactory or inherently improbable as to lead me to the conclusion that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences upon which he was convicted. In reaching this view I have followed the course directed in M v the Queen (1994) 181 CLR
487 of making an independent assessment of the evidence. Although the High Court in that case stressed the importance of the appeal court's own assessment of the evidence, their honours recognised that proper regard should be had to the benefit which the jury possessed of seeing and hearing the witnesses. In the present case there was a particular advantage which the jury possessed in being able to assess, along with other issues relevant to credibility, the level of maturity of these two youths and the possible or likely effects on them of any intimidation which might have emanated from the appellant.

13. In all the circumstances I have concluded that this ground of appeal should be rejected.

14. Grounds 2 and 3 in the original grounds of appeal were abandoned. The remaining grounds are as follows:
    "4 That the Learned Trial Judge failed to adequately direct
    the jury against reasoning via propensity in relation to
    each complainant and each of the charges.

5 That the Learned Trial Judge failed to adequately direct
    the jury as to permissible and impermissible use that could
    be made of other acts which were alleged against the accused
    but which were not the subject of any charge before the
    jury.

6 That the Learned Trial Judge failed to adequately direct
    the jury that it would be impermissible for them to use the
    evidence of the complainant (P) in their consideration of
    the charges involving the complainant (G)."

15. No objection was taken to a joint trial of the four counts in the information and it was conceded on appeal that it was appropriate for all counts to be heard together. It was further conceded on appeal that in the light of G's version it was open to the prosecution to lead evidence of a course of conduct by the appellant which included other alleged acts of sexual intercourse between the appellant and G which were not charged. The incidents upon which the four counts in the information were based were also part of the alleged course of conduct in relation to G. True it is that the fourth count alleged an offence against P only, but on G's version he was asked by the appellant to take P to the house and at the appellant's direction G was lying naked in the bed at the time of the alleged offence against P. If this incident took place as alleged by the prosecution, then it was clearly part of the ongoing sexual relationship in which the appellant and G were involved, albeit a variation on what normally occurred. (cf The Queen v Arthur (1992) 163 LSJS 18 at 19).

16. The learned Solicitor-General argued that the evidence as to the commission of each offence was admissible as part of the proof of the other offences charged for a further reason, namely, that the events on each occasion were strikingly similar, thus qualifying as similar fact evidence. I cannot agree that the incidents were strikingly similar, but what is more important from a practical viewpoint, no such suggestion was made at trial. The prosecution did not rely on the argument and the trial judge was not asked to sum up on that basis. However, as I have pointed out, the prosecution did rely on the evidence as establishing a course of conduct and, in my view, the concession by the appellant that the evidence could be approached in this way was properly made.

17. Evidence led in circumstances such as these to establish the nature of the relationship between an accused person and an alleged victim is sometimes discussed under the heading of similar fact evidence. R v Ball (1911) AC 47, a case in which evidence of incidents other than that charged was admitted to establish "the existence of a sexual passion" between the parties is often discussed in this connection. See also DPP v Boardman (1975) AC 421 at 452 and R v Sims (1946) 1 KB 531 at 537.

18. Whatever its proper classification (see discussion by McHugh J in Harriman v The Queen (1989) 167 CLR 590 at 630-631) the probative value of this type of evidence derives from its tendency to establish the nature of the relationship between relevant parties, in the present case the relationship between the appellant and G. If a particular sexual relationship has developed between an accused and a complainant then it may provide considerable assistance in understanding the interaction between those parties on a particular occasion. In the present case, assuming acceptance of G's version, events which took place in the course of the relationship, once established, cannot be properly and fully understood without reference to the pattern of events alleged by G. The following remarks of Walters J in The Queen v Etherington (1982) 32 SASR 230 at 235 are apposite:
    "... I think the evidence of the prior indecent acts was
    admissible on the ground that it formed part of the
    circumstances of the offence charged. Without evidence of
    those acts, the evidence of the prosecutrix relating to the
    act said to constitute the alleged offence 'could not be
    truly understood and, isolated from (the evidence of the
    prior indecent acts), could only be presented as an unreal
    and not very intelligible event' (O'Leary v The King (1946)
    73 CLR 566, per Dixon J (as he then was), at p577). As it
    seems to me, the evidence in question showed what amounted
    to something of a continuous transaction, namely, the
    defilement of the prosecutrix by the appellant on a number
    of occasions since she was eight or nine years old, and it
    served to explain why she continued to submit to him and why
    he was able to commit his indecent acts upon her on the
    occasion charged. In my opinion, in the whole of the
    circumstances deposed to in the evidence of the prosecutrix,
    the appellant was not entitled to avail himself, on the
    question of admissibility, of an artificial severance of the
    earlier indecent acts from the act alleged to constitute the
    offence charged. If I may paraphrase the words of Willes J
in Reg v Rearden (1864) 4 F and F 76 (176 ER 473), it seems
    to me that in cases of this sort where a man 'acquires a
    species of influence' over a child which enables him to
    repeat his indecent acts on subsequent occasions, 'this
    seems to give a continuity to the transaction' which makes
    evidence of the earlier acts properly admissible."

19. In the present case, however, it was argued on behalf of the appellant that the jury should have been warned that if they found that an offence took place on one occasion they should not automatically conclude that an offence must have taken place on each of the other occasions charged. In particular it was argued that the jury should have been warned not to reason that if they found that offences against G had been committed it would not necessarily follow that the offence against P had been committed and vice versa.

20. The learned judge did direct the jury to consider each count separately. She said:
    "As you know, the accused has been charged with four counts
    of unlawful sexual intercourse. The first three charges
    relate to (G) and the fourth relates to (P).

Before I elaborate on those charges, I need to explain to
    you that when more than one offence is charged, it is
    necessary for the jury to consider each charge quite
    separately. It is, if you like, as if a number of trials,
    for convenience, are being heard together.

With regard to each charge, you have to ask yourselves
    whether or not the evidence that has been put before you
    proves beyond all reasonable doubt that the accused is
    guilty of that particular charge. You will ask that
    question of yourselves with respect to each charge in turn.

Because you must approach the separate charges in that way,
    it is quite proper for you to come to different conclusions
    in respect of the different charges; in other words, it is
    not a case of guilty of all or guilty of none.

I want to make myself quite clear, however, ladies and
    gentlemen. I am not suggesting that in this case you should
    come to any particular conclusion about any of these
    charges. All I am doing is reminding you that for there to
    be a conviction on any of these charges, all the ingredients
    or elements that go to make up that charge must be proved
    beyond a reasonable doubt.

Because that might happen in respect of one or more charges,
    and not in respect of the other or others, it is always open
    to a jury to bring in a verdict of guilty of one or some and
    not guilty of the others. It is entirely up to you."

21. At the conclusion of the summing-up the prosecutor invited her Honour to "direct the jury on the issue of the course of conduct, those allegations related to repeated threats and repeated acts of sexual intercourse between the accused and (G) and the use to which the jury are entitled to put those allegations". The following exchange then took place:
    "Mr Boylan (defence counsel): While I realise it is the
    case presented showing the course of conduct, the jury have
    to consider the four charges. It is my submission,
    especially now, any highlighting of that is really raising
    before them the issue of matters that aren't charged. It is

    my submission if one looks at the evidence realistically it
    is obvious that the Crown has presented this course of
    conduct. I would ask your Honour not to give any further
    direction on that.

Her Honour: I must say, Mr Nicholas (prosecutor), it seemed
    to me that I know you mentioned course of conduct very much
    in the course of the trial, you pitched the case very much
    on the four incidents and I don't want to deflect the jury
    from their proper consideration of those matters. I think
    it would be wiser to leave that matter alone. I take your
    point but even in your opening you asked them to concentrate
    on the separate matters. If I get them back and say 'Don't
    forget it is a course of conduct' they might start casting
    around to find some other piece of evidence that is not
    there. The evidence is really very much locked into the
    four counts. I would like them to concentrate on those four
    counts."

22. As counsel representing the appellant at the trial observed, it was clear throughout the trial that the prosecution was alleging that a course of conduct took place. The prosecutor explained to the jury in his opening that the counts charged were representative of that course of conduct. There was no real danger that the jury would be distracted from focusing on the four counts which were charged. The allegation that the appellant had sexual intercourse with G on numerous other occasions was made by G in his evidence but no details were given of those events. This was not a case, therefore, in which there was any risk that undue prejudice might have arisen from the reference in evidence to the other occasions; nor was there the need for the jury to be directed on the importance of separating out the details relating to a large number of incidents so as to ensure a linking of relevant evidence with particular counts. (Contrast R v Dolan (1992) 58 SASR 501 at 503). I am satisfied that the purpose of this evidence would have been understood by the jury by the time the trial judge came to sum up. I should add that in my view it would have been appropriate for her Honour to have explained to the jury the nature of relationship evidence and its particular application to the case being tried. However, I am confident that the failure to do so did not contribute to a miscarriage of justice.

23. But it was the possibility of misuse by the jury of the evidence on the counts relating to G when considering the count relating to P and vice versa which was particularly stressed by Mr Kourakis, who criticised the failure of the trial judge to warn against the impermissible use of that evidence.

24. For the reasons which I have given the evidence of the incident involving P was admissible as course of conduct evidence in relation to the proof of the offences allegedly committed on G. Clearly it would have been an impermissible use of that evidence to reason that, because the appellant committed a homosexual offence against P, it is likely that he would have committed the series of offences against G. Likewise a finding that one or more of the offences against G were committed would not allow the jury to reason by way of propensity that the accused committed the offence against P. However I am of the view that there is no real risk that the jury fell into erroneous reasoning of this nature.

25. The clear issue in the case was the credibility of both complainants. The jury were required to consider the veracity and accuracy of G's evidence of an extensive course of sexual misconduct by the appellant and, in particular, G's version of the incidents upon which the charges were based. They had also to consider the versions given by G and P concerning the alleged offence on P. Of course in assessing the evidence generally the jury had to consider the appellant's version and that involved an assessment of his credibility. The fact that both G and P gave evidence implicating the appellant in the offence alleged in relation to P gave rise to the further consideration as to whether there had been collaboration between the complainants. However the course of conduct underlying all counts and the fact that G gave evidence relevant to all counts rendered it unlikely that the jury would resort to propensity reasoning.

26. Although the factual situations differ in a number of respects, a similar situation arose in The Queen v Arthur (1992) 163 LSJS 18. In that case the accused was charged with sexual offences against three children T, M and E. It was alleged that the offences occurred in the course of the one transaction, but evidence was given of a course of conduct involving a series of previous indecencies with E. King CJ began his judgment with an observation on the course of conduct evidence. He said:
    "E gave evidence that the appellant had indecently dealt
    with her on a number of occasions prior to the date of these
    alleged offences. That evidence was clearly admissible in
    relation to the charge with respect to conduct against E.
    The learned judge took the view that the evidence of the
    previous indecent dealing, although admissible with respect
    to the charge of indecent assault on E, was not admissible
    on the charges of conduct against M. I am prepared to
    consider this ground of appeal upon the footing that the
    learned trial judge's view of the inadmissibility of this
    evidence with respect to the M charges, is correct. I am by
    no means persuaded, however, that the evidence was not
    admissible with respect to those charges. It is true that
    the relationship demonstrated by such evidence is with E
    only. Such evidence, however, may be 'admissible because it
    tends to prove why or how on the occasion in question the
    offence occurred in the circumstances alleged'. Harriman v
The Queen (1989) 167 CLR 590 per McHugh J at p631. In the
    present case the allegation is that indecent acts forming
    the subject of the three charges occurred in the same room
    on the same occasion when all three girls were present. It
    seems to me that there is a respectable argument for the
    view that the evidence of the previous indecent dealing with
    E tends to explain the occurrence of the acts alleged to
    have been committed on all three girls on that occasion. If
    the charges of conduct with respect to M were tried
    separately and the evidence of the previous indecent dealing
    with E were excluded, the jury would be left without
    evidence of the relevant background of the previous indecent
    dealing with E. They would be deprived of the opportunity
    of understanding what is alleged to have occurred in the
    bedroom on this occasion in its true context."

27. The learned former Chief Justice then dealt with an argument that the trial judge did not warn the jury as to impermissible use of the evidence. He said (at p24):
    "The learned judge it is true, did not warn the jury against
    impermissible reasoning by way of propensity arising out of
    E's evidence of prior misbehaviour on his part. Neither did
    he warn the jury that if they were satisfied that a charged
    offence was committed against one girl, they should not
    convict of an offence against the other girls on a
propensity basis. The Queen v Conley (1982) 30 SASR 226.
    There was, however, in my opinion, no occasion for such
    directions in the present case. The learned judge gave a
    clear direction that each count must be considered
    separately and he gave an adequate direction as to the
    purpose for which the evidence of the earlier occurrences
    was permitted. There was simply no risk of impermissible
    propensity reasoning in the present case. The alleged
    offences occurred on the same occasion when both alleged
    victims were present. They both deposed to each of the
    offences. There was no realistic possibility of a jury
    being satisfied about one of the offences and reasoning by
    way of propensity to the others. Moreover, the occurrence
    of the earlier incidents depended for acceptance upon the
    credibility of E. There was again no realistic possibility
    that the jury would be satisfied about the earlier
    occurrences but be in doubt about the 11th January
    occurrence and reason by way of propensity to guilt in
    relation to the 11th January incident. I do not think that
    a jury would have made sense of a propensity direction in
    the present circumstances. The learned judge was wise to
    refrain from giving it."

28. Although a direction was not given as to the permissible use of the relationship evidence in the present case, I am of the view that King CJ's observations as to the unlikely misuse of the evidence by way of propensity reasoning in the above case apply with equal force to this case. I am of the opinion that there was no realistic possibility that the jury would reason by way of propensity that if the appellant committed the offences against G he would have committed the offence against P or vice versa.

29. Although, as I have said, I am of the view that it would have been preferable in the present case for the trial judge to have given a specific direction on the use of the course of conduct evidence, I am confident that such non-direction has not produced a miscarriage of justice.

30. In my view the appeal should be dismissed.

JUDGE3 WILLIAMS J I agree.