R v Hennig

Case [2015] SASCFC 150

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HENNIG

[2015] SASCFC 150

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Lovell)

20 October 2015

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - OTHER CASES

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - DIRECTIONS TO JURY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - JOINDER OF PERSONS OR COUNTS

Appeal against conviction. The appellant was convicted after a trial by jury of two counts of persistent sexual exploitation of a child, committed against his step-daughters ST and JT. At the beginning of the trial the learned trial Judge ordered that the trial of the appellant in respect of offences alleged to have been committed against RT, ST and JT’s sister, be heard separately.

At trial evidence was given by ST, JT and the complainants’ mother, SS, to the effect that the appellant was often verbally and physically abusive to the complainants, RT, and SS.

Whether the learned trial Judge erred in admitting the evidence of the appellant’s violent behaviour. Whether the learned trial Judge erred in directing the jury as to the permissible and impermissible use of the evidence of the appellant’s violent conduct. Whether the learned trial Judge erred in refusing to separate the trials of the charges relating to ST and JT.

Appeal dismissed.

Held per Kelly J (Nicholson and Lovell JJ agreeing) (dismissing the appeal):

1.      The evidence led about the appellant’s violent conduct towards the complainants and SS was highly relevant to explain the atmosphere in which the offending occurred, and how it was able to occur over such an extended period of time without ST or JT making any complaint.

2. It was open to the jury to use the evidence of the discreditable conduct in the way the trial Judge directed. The fact that neither of the complainants specifically referred to that conduct when giving evidence about the delay in complaining did not relieve the trial Judge of the obligation to direct the jury in accordance with s 34R of the Evidence Act 1929 (SA).

3.      It was not necessary to separate the trials with respect of the complainants ST or JT or to give any separate direction about the discreditable conduct evidence insofar as it affected JT and ST.

Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) s 34P(2)(a), s 34R, referred to.
R v MJJ; R v CJN (2013) 117 SASR 81, discussed.
R v MBJ (2011) 110 SASR 1, considered.

R v HENNIG
[2015] SASCFC 150

Court of Criminal Appeal:   Kelly, Nicholson and Lovell…

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AGLC
R v Hennig [2015] SASCFC 150
Case
[2015] SASCFC 150
Decision Date

CaseChat Overview and Summary

The appeal concerned a criminal conviction for acts of sexual exploitation. The appellant, R v Hennig, was charged with offences against two complainants, ST and JT, who were children at the time of the alleged offending. The prosecution case involved allegations of ongoing sexual exploitation over several years, occurring within a family setting where the appellant was in a relationship with the complainants' mother.

The legal issues before the court were whether the trial judge had erred in admitting evidence of the appellant's violent conduct towards the complainants and their mother, and whether this evidence was properly directed to the jury. Additionally, the court considered whether the trial judge had erred in refusing to order separate trials for the charges relating to each complainant, and whether separate directions were required regarding the violent conduct evidence in relation to each complainant.

The Full Court of the Supreme Court of South Australia, comprising Kelly, Nicholson, and Lovell JJ, reasoned that the evidence of the appellant's violent conduct was highly relevant to explaining the context and atmosphere in which the offending occurred, and why the complainants may not have complained sooner. The court held that it was open to the jury to use this evidence as directed by the trial judge, and that the absence of specific references to the violent conduct by the complainants when discussing delays in complaining did not absolve the trial judge of the obligation to provide directions in accordance with section 34R of the *Evidence Act 1929* (SA). Furthermore, the court found no error in the refusal to separate the trials or in the directions given concerning the violent conduct evidence as it related to each complainant, as no miscarriage of justice had been demonstrated.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

1. The evidence led about the appellant’s violent conduct towards the complainants and SS was highly relevant to explain the atmosphere in which the offending occurred, and how it was able to occur over such an extended period of time without ST or JT making any complaint.

2. It was open to the jury to use the evidence of the discreditable conduct in the way the trial Judge directed. The fact that neither of the complainants specifically referred to that conduct when giving evidence about the delay in complaining did not relieve the trial Judge of the obligation to direct the jury in accordance with s 34R of the Evidence Act 1929 (SA).

3. It was not necessary to separate the trials with respect of the complainants ST or JT or to give any separate direction about the discreditable conduct evidence insofar as it affected JT and ST.

Background

Background to the litigation

On 15 June 2015 a single Judge of this Court refused permission to appeal in respect of grounds 1 and 2 of the appellant’s Notice to Appeal, but granted permission to appeal on ground 3. The appellant therefore comes before this Court also seeking permission to appeal on grounds 1 and 2. Background The prosecution case in relation to the count involving ST was that the appellant committed ongoing acts of sexual exploitation against ST for a period of approximately 10 years between 1 January 1999 and 1 January 2010. ST was seven or eight years of age when the offending began. The prosecution case in relation to the count involving JT was that the appellant committed acts of sexual exploitation during a period of about two years commencing when JT was about 11 years old, although the information charged a wider time period for the offending, from 31 December 2005 and 1 January 2010. ST and JT’s mother, who I will call SS, commenced a relationship with the appellant and moved into his home with her children, including ST and JT and her other daughter RT, in 1999. SS and the appellant married in 2000 and they lived together as a family. During the trial ST, JT and SS gave evidence of verbal and physical violence by the appellant in that family setting. The effect of ST’s evidence was that after the family moved into the appellant’s home and became more comfortable, the appellant started to become “very angry a lot of the time, very aggressive”. ST explicitly stated that she felt scared when the appellant yelled at her. The appellant also yelled at SS and sometimes her sisters including JT. Her evidence was that sometimes when the appellant hit SS she and her sisters tried to intervene and assist but the appellant pushed them out of the way. ST also gave evidence of an incident when the appellant threw a phone at SS, hitting her. She described an incident on another occasion during which the appellant forcefully slammed his own son’s face into a plate of hot food whilst the family was eating dinner. Both ST and JT gave evidence of an incident during which the appellant was locked out of the house after an argument and smashed a window to force his way back into the home. ST, JT, SS and RT all ran away from the home as a consequence of that incident and remained away for about two days. ST described another particular incident when she saw the appellant hit RT’s face with the back of his hand. It was also ST’s evidence that the appellant would kick and punch animals kept by the family. In her evidence ST said that this level of anger and violence was displayed by the appellant quite often, up to three times a week. Her evidence was that she wanted to fight back but was too scared. After describing the first incident of sexual touching by the appellant, ST said that she did not tell anyone what had happened because the appellant told her not to. ST gave evidence that on one occasion she started to make a complaint and was overheard by the appellant, who told her to go inside, away from the people she was talking to. She felt confused about why she should not say anything. ST described her emotional state when she eventually went to complain of the offending to SS as “scared, I felt guilty, I felt like I’d done something wrong and I couldn’t handle the pain that I had, the weight on my shoulders, the guilt that I had for what was happening”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J NICHOLSON J (dissent) LOVELL J
In any event, even if I did not consider that the trial Judge was correct in refusing to separate the trials for the offending against ST and JT, a trial Judge’s decision to separate trials is a discretionary matter. As discussed in R v Inston[3] and recently affirmed by this Court in R v F, AD,[4] it is insufficient for an appellant to argue or satisfy a court that an application for a separate trial should have succeeded; a resulting miscarriage of justice must be demonstrated. In the present case the applicant has failed to point to any such miscarriage of justice. [3] (2009) 103 SASR 265 at [86].[4] [2015] SASCFC 130 at [18].Conclusion It has not been established that there was any error in the approach of the trial Judge to the admission of the evidence of discreditable conduct, or the directions as to its permissible and impermissible use. Nor did the learned trial Judge err by refusing to separate the trials of the charges relating to ST and JT. For these reasons I would grant permission to appeal in respect of grounds 1 and 2, however I would dismiss all grounds of appeal. I agree with the orders proposed by Kelly J for the reasons given by her Honour. I agree with the orders proposed by Kelly J for the reasons given by her Honour.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J, LOVELL J

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