R v Hare

[2007] SASC 427

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HARE

[2007] SASC 427

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice Bleby and The Honourable Justice Vanstone)

7 December 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT

Appellant convicted of two counts of indecent assault and acquitted of a third upon same 12 year old complainant - whether verdicts inconsistent.  Held:  verdicts not such as to indicate factual inconsistency and therefore not unreasonable.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION

Whether judge should have directed jury that a doubt entertained in respect of one count should be brought to account in deliberations on other counts.  Held:  no such direction required.

Consideration of directions given regarding use of evidence of each count in relation to others - whether directions inherently inconsistent - whether directions too restrictive.  Held:  directions unnecessarily restricted use of evidence but to that extent were favourable to the appellant.

Discussion of whether propensity direction necessary - such a direction not required in a case of this nature.

Criminal Law Consolidation Act 1935 (SA), s 353(1), referred to.
MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; R v Hoskins [2007] SASC 92, (2007) 169 A Crim R 325; R v Liddy (2002) 81 SASR 22; R v B, P [2006] SASC 229; R v Tedesco (2003) 85 SASR 66, applied.
R v KWG [2000] SASC 398; R v Markuleski (2001) 52 NSWLR 82, not followed.
Longman v The Queen (1989) 168 CLR 79; R v Schlaeffer (1984) 37 SASR 207; R v Armstrong (1990) 54 SASR 207; KRM v The Queen (2001) 206 CLR 221, considered.

R v HARE
[2007] SASC 427

Court of Criminal Appeal:  Nyland, Bleby and Vanstone JJ

1. NYLAND J:          I agree that the appeal should be dismissed for the reasons expressed by Vanstone J.  I have nothing further to add.

2. BLEBY J:             I agree that the appeal should be dismissed for the reasons given by Vanstone J. 

   VANSTONE J:

   Introduction

3. Jeffrey Peter Hare was tried in the District Court for three counts of indecent assault said to have been committed upon the same complainant on three different occasions.  He was convicted of the first two counts only.  He now appeals against those convictions, arguing that the verdicts are inconsistent and also complaining of the directions given to the jury as to the use that might be made of the evidence of one count in considering the others.

   Background

4. The conduct for which the appellant was convicted took place in the year 2000, when the complainant, whom I shall call “V”, was about 12 years of age. 

5. The first offence occurred during the school holidays at the end of the second term, when V and his school friend Jack, Jack’s mother and the accused were staying briefly together in a caravan park near Morgan.  That this trip took place was not disputed.  During that holiday the appellant and V went into Morgan on an errand and then visited a disused railway station, where the offence took place.  Jack’s mother gave evidence confirming the appellant’s request that V accompany him on the errand.  She said it should have taken about 30 minutes and that upon their return she had expressed displeasure at their extended absence.  She was told by the appellant to mind her own business. 

6. Count 2 occurred on a weekend of the third school term at Jack’s house.  The appellant and V were left alone there for a short time.  The conduct took place in the living room.  While neither Jack nor Jack’s mother recalled the particular occasion when the appellant and V were left alone, there was evidence confirming that such opportunities had existed.  V described in some detail how the conduct was interrupted by the sight of Jack approaching the front door of the house and the appellant’s response to that.

7. The complainant’s evidence was that the third indecent assault occurred on an occasion when he went with Jack, Jack’s mother and the appellant on a houseboat trip, departing from Chowilla Station.  They were away for five days and four nights.  The complainant gave evidence that on the second day when he and the appellant were at the rear of the houseboat, Jack was inside and his mother was at the front of the boat, the appellant asked him to sit on his lap and started rubbing his groin.  Then, later in the afternoon, they were again at the back of the boat while the others were inside and he was again asked to sit on the appellant’s lap.  On this occasion V said that the appellant put his hand in V’s pants and started rubbing his penis. 

8. In evidence as to the third count V said he thought his thirteenth birthday (9 September) occurred during this trip.  He thought that the appellant had given him a present – a box of Warhammer figurines – on that day, but he acknowledged that the present might not have come to him on the very day.  It was suggested to V in cross-examination (but not proved) that the school holidays in that year did not start until 15 September.  Jack’s mother, Mrs Chamberlain, gave evidence to the effect that the houseboat trip in fact occurred just after Christmas in that year.  Mrs Chamberlain did not recall the appellant giving V a present during the trip at all.  Nor did Jack, although he thought it was “quite possible”.  In cross-examination V conceded that the trip could have occurred at Christmas time, rather than around his birthday, and that the figurines could have been a Christmas present. 

9. Mrs Chamberlain described the houseboat as being small and as having one bedroom.

10. The allegations were not reported to the police until 5 March 2006. 

11. The accused gave evidence in his defence, denying any indecent conduct. 

    Suggestion of inconsistent verdicts

12. The first ground of appeal complains that the verdicts in relation to the first two counts “are unreasonable and cannot be supported having regard to the evidence”. The particulars refer to the inconsistency of the verdicts. The ground picks up the language of s 353(1) Criminal Law Consolidation Act 1935.  The essential complaint is, then, that the verdicts on the first two counts are unreasonable in that there is factual inconsistency between those verdicts and the acquittal.

13. The duty cast upon a court of criminal appeal in assessing such a complaint has been the subject of discussion in a number of cases including MacKenzie v The Queen (1996) 190 CLR 348, MFA v The Queen (2002) 213 CLR 606 and R v Hoskins [2007] SASC 92; (2007) 169 A Crim R 325. I take the task of this court to be, in essence, to consider whether upon the whole of the evidence, viewed in the light of the directions given, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty only of those counts for which he was convicted.

14. It is true that in terms of assessing V’s honesty there is nothing in the evidence which bears differently on count 3 as against the other counts.  However, there were matters of fact in relation to count 3 which the jury might have considered called into question V’s reliability as to the events the subject of that charge.  As mentioned, there was some uncertainty as to when the event occurred and whether the present he recalled having with him at the time was given to him by the appellant for his birthday, or at Christmas time.  The timing, of itself, was of no consequence.  What might have mattered was its capacity to cast doubt on V’s recall of the incident as a whole.  In addition, and importantly, only this incident was alleged to have taken place when other persons were in the immediate vicinity.  The jury could have contemplated that bearing in mind the proximity of other persons, V might have been mistaken as to the occasion, or the level of intimacy described.  The long gap between the event and the trial would only have served to reinforce any such doubt.

15. It is germane to note that the judge gave to the jury what has become known as a “separate consideration direction”.  In the course of that direction he stressed that the charges did not stand or fall together and that each had to be considered separately “in the light of the evidence that applies to it”.  He went on to say:

    If separate charges are tried together on the one information, as in this case, it becomes necessary to take special care to see that the method established to see whether the accused is guilty on one count is considered only on the evidence that is offered in relation to that count and not the evidence in relation to the information as a whole.

16. Having regard to all of the evidence, considered together with the directions given by the judge, my view is that the verdicts are reconcilable on a proper basis and do not indicate any factual inconsistency.  I would dismiss this ground of appeal.

    Directions to jury

17. The second ground raises the adequacy of the directions given to the jury as to the permissible use of the evidence on one count in consideration of other counts.  In particular the appellant complains that there was no direction as to the impact which a failure to find any one count proved might have on the other counts.  In addition, it was argued that there was inherent inconsistency between two of the directions, which had the effect of placing an undue restriction on use of the evidence in the appellant’s favour. 

18. In order to understand the complaints it is necessary to set out some further parts of the summing up.  The impugned directions fell within the following passage.  For ease of reference I have labelled each paragraph by letter.

    a.When you are considering whether or not you are satisfied beyond reasonable doubt that the accused is guilty of the first count, you may use the evidence of the act[s] constituting the second and third counts but only in a special and limited way.

    b.Usually in a criminal trial evidence of other alleged crimes do not come before a jury such as you.  In this case, however, you have heard evidence of three charged crimes because it is potentially helpful to you in evaluating the evidence of [the complainant].  Hearing the whole of the allegations he made may better enable you to assess his evidence.  The whole of the alleged course of events provides a context around which it is said that a particular charged incident occurred.  There is a sense in which the more evidence you have of the interaction between [V] and the accused, the better opportunity you have to evaluate [V’s] evidence and to determine to what extent, if any, you are prepared to rely on it.  In that way it can be said that the whole sequence of events throws light on the nature of the relationship between [V] and the accused.

    c.When you are considering the first count you may consider the evidence as to the second count and as to the third count in determining what, if any, weight you are prepared to place on the evidence of [V].  Evidence of the other charged acts is available to you as material which may assist you in concluding whether you think that [V’s] evidence is reliable as to the first count, being the count you are then considering.  Alternatively, it may assist the defence in showing inconsistency or unreliability or inherent improbability in his evidence, and, therefore, may raise doubt about the charge you are then considering.

    d.The evidence of the other two charged acts is before you when you are considering the first count on the following basis, and only on the following basis.  First, that evidence, if you are satisfied that any of it occurred, provides a context and setting of the alleged charged act in the first count, being the one you are considering.  That is notwithstanding the fact that the evidence of the second and third counts relates to events subsequent to the first count.  That evidence, if you are satisfied that any of it occurred, may suggest to you that the accused had a sexual attraction to [V].  That evidence may also be relevant as it may explain why [V] did not complain about the accused’s conduct after the time at which the charged acts took place.  That evidence, if you are satisfied that any of it occurred, is also relevant as it may explain why the accused expected [V] to remain silent in the fact of what he said was occurring before he ultimately reported the allegations to the police on 5 March 2006, years later.

    e.You may only use the evidence of the other charged acts in the way I have just mentioned.  You must not use it in any other way when you are considering the evidence of the act alleged to constitute the first count against the accused.  Furthermore, in the same way, when you consider the second count you must consider the evidence regarding the other charged acts in the same way and for the same purposes I have identified, and only in those ways and only for those purposes.  Similarly, when you are considering the third count.

    f.In addition, I direct you that you must not use the evidence regarding the other charged acts, if you are satisfied of the truth of some or all of that evidence, to reason that just by virtue of that, the accused is the kind of person who is likely to have committed the particular offence you are then considering and therefore did commit that offence.  It would be wrong to reason in that way.

19. Counsel did not complain of the directions contained in paragraphs a, b and c, so far as they went.  However, he contended that the judge should have gone further and warned the jury that if it was not prepared to accept V’s evidence in respect of any particular matter or count, then such a doubt should be taken into account in determining whether it was prepared to accept his evidence on other matters or counts.  Counsel suggested that this obligation fell upon a trial judge irrespective of any particular circumstances in the evidence calling into question the complainant’s reliability. Counsel relied on R v KWG [2000] SASC 398 and R v Markuleski (2001) 52 NSWLR 82. Counsel also purported to rely on R v Liddy (2002) 81 SASR 22, 64-73, but I consider that the case does not support the argument.

20. There is no general rule that requires the direction as contended for by counsel.  That is, there is no obligation upon a trial judge dealing with sexual charges resting on the evidence of a single complainant to direct the jury that any doubt which it entertains in relation to proof of one count must be carried into its consideration of other counts:  Liddy, per Mullighan J at [186]-[192] and per Williams J at [515]-[523]. Although Mullighan J referred in the passages cited to KWG and Markuleski and to the statements within those cases suggesting that such a direction was obligatory, or at least prudent, I do not read his reasons as agreeing that such a direction was necessary in the usual case.  On the contrary, his Honour expressed the view that any obligation would arise from the particular circumstances of the case.  The same view was taken in this court in R v B, P [2006] SASC 229.

21. In a particular case such a warning might be necessary to avoid a perceptible risk of miscarriage of justice:  Longman v The Queen (1989) 168 CLR 79 at 86 per Brennan, Dawson and Toohey JJ and at 95 per Deane J. Juries are perfectly capable in the great majority of cases, where the significance of any infirmity in a complainant’s evidence is obvious, to bring that infirmity to account, in relation to other charges, to the extent that it is necessary or appropriate, and to do so without need of any specific direction. That is part and parcel of the task which juries constantly undertake in evaluating the evidence of witnesses.

22. It is undesirable to burden juries with unnecessary directions.  That is particularly so where such a direction may introduce an imbalance which would need to be redressed.  Because just as an infirmity could adversely affect judgement of credibility as a whole, so an acceptance of a complainant’s account of a disputed event (and a rejection of the version of an accused person) could flow through to other counts in a way which assisted the prosecution case.  If a direction as sought upon this appeal is to be given, then it raises the question of whether a counterbalancing direction would also be required.

23. Counsel for the appellant further submitted that while paragraphs b and c of the judge’s summing up correctly instructed the jury that a regard to the whole of V’s evidence could have the effect of either bolstering or undermining his credibility, the judge then went on in paragraphs d and e to confine the use which might be made of that appraisal to circumstances in which they were “satisfied” of the other count or counts and to restrict the jury to use of the evidence against the appellant, as opposed to using it in his favour.

24. I accept that, read literally, the direction contains a contradiction of the type identified by counsel.  However, it was clearly implicit in paragraphs d and e that the judge was speaking of uses of the evidence against the appellant and that he was introducing the burden of proof for that reason.  In view of the clarity with which the whole topic was explained in paragraphs b and c, I do not think that the jury would have understood the subsequent paragraphs as denying to the appellant the full force of any perceived unreliability associated with V’s evidence.  As I observed a moment ago, juries are well able to assess the credibility of witnesses and the significance, if any, of prior inconsistent statements, lapses of memory, contradictions and the like.  That such infirmities should be given weight in the final analysis of a witness’s evidence is a matter of common sense.  I do not consider that the suggested contradiction could have deflected the jury from a proper examination of V’s credibility and reliability. 

25. Before leaving this ground I would make some further observations.  In my view the directions given in paragraphs d and e were both unnecessary and too favourable to the defence.  In drafting those directions the judge seems to have drawn upon judicial pronouncements made in cases dealing with the admissibility of, and directions upon, evidence of uncharged acts.  Here, as has been said, the other sexual conduct under consideration was charged in the indictment.  Although the two sets of principles involved have something in common, they are not identical.  In this case it was accepted at all stages that evidence on each count was admissible in proof of the other counts.  Consequently there was no warrant to restrict the jury’s use of evidence of other counts, as the judge purported to do in paragraphs d and e.  Nor was there any reason to introduce a standard of proof in relation to the jury’s consideration of that other evidence.  The jury was entitled to use the evidence relating to other counts as it saw fit (and particularly as outlined in paragraphs b and c) subject to any specific warning which was called for.  Here, as earlier observed, the judge properly warned the jury that satisfaction of guilt of one count did not dictate guilt of the remaining charges and that the elements of each count had to be separately considered. 

26. The judge went on to give the jury what has been called a “propensity warning”.  Whilst I offer no criticism of him for so doing, it is doubtful that such a warning was required.  In R v Tedesco (2003) 85 SASR 66, Doyle CJ considered this question in the context of an information containing two counts of rape on one occasion, and criminal trespass and assault on another, upon the same complainant. He gave close consideration to the judgments in R v Schlaeffer (1984) 37 SASR 207, R v Armstrong (1990) 54 SASR 207 and KRM v The Queen (2001) 206 CLR 221. Doyle CJ concluded that there was no immutable rule calling for a propensity warning in such cases. The Chief Justice said, at [19]:

    … it cannot be said, in my view, that the law of Australia requires that a propensity warning or direction be given in all cases in which the accused is charged with multiple counts involving the same victim, and evidence on each count is admissible on each other count.  In particular, it cannot be said that such a direction is always required even though the prosecution case does not rest on what I will for convenience call ‘similar fact reasoning’ or ‘improbability reasoning’. 

    In Tedesco’s case counsel argued that the jury should have been told not to reason from any finding of guilt in respect of either pair of charges that the appellant had a propensity to commit offences, sexual or otherwise, against the complainant.  The Chief Justice, with whose reasons Duggan and Gray JJ agreed, concluded that no such direction was called for.

    Conclusion

1. Neither ground of appeal is made out.  Insofar as there was any misdirection as to use of evidence of one count in respect of other counts, it was favourable to the appellant.  I would dismiss the appeal.