R v Hennig
[2015] SASCFC 150
•20 October 2015
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 150Court of Criminal Appeal: Kelly, Nicholson and Lovell JJ
KELLY J.
The appellant was convicted after a trial by jury of two counts of persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). I shall refer to the victims as ST and JT. ST and JT were the appellant’s step-daughters.
The appellant appeals against his conviction on three grounds. The grounds of appeal relate to the admission of, and directions to the jury regarding, evidence of the appellant’s alleged violent behaviour (grounds 1 and 2 respectively), and the learned trial Judge’s failure to order separate trials of the counts relating to ST and JT (ground 3).
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”.
JT’s evidence regarding the appellant’s abusive or angry behaviour included the incident in which the appellant smashed a window to gain re-entry into the home, and an incident during which the appellant pushed RT out of the way onto a bed during a fight.
JT also described her feelings when she complained of the sexual offending as being “scared and didn’t know what to say. I was going to tell mum but I was just too scared.”
SS also gave evidence regarding the appellant’s behaviour. It included that the appellant was verbally and physically abusive, would yell at ST and RT, pushed SS in front of ST and JT, and frequently got angry with SS. It was SS’s evidence that she decided to leave the appellant as she “didn’t want to end up having the kids there to see everything that was going on”. The catalyst for this decision was an incident in 2009 during which the appellant “got up in [JT’s] face and screamed right in her face”.
It was this evidence from ST, JT and SS that comprised the evidence of discreditable conduct on the part of the appellant.
Prior to the commencement of the trial, the appellant filed a Rule 49 Notice seeking separation of the trials in respect of the complainants, and exclusion of the evidence of alleged violent behaviour by the appellant directed at ST, JT, RT and SS. The learned trial Judge ordered that the charges involving ST and JT be heard together, but ordered a separate trial for charges of offending against RT. The Judge heard argument about the evidence of the appellant’s violent behaviour, and refused the prosecution permission to lead evidence of police attendance at the home after the appellant had allegedly behaved violently.
The appellant gave evidence at trial. The defence case was that he did not offend against ST and JT, and would never have had the opportunity as he was never alone with the complainants due to his hours of work and because there were always other people around in the crowded house.
Complaints on Appeal
The appellant’s first complaint is that the Judge erred in admitting the alleged violent behaviour of the appellant into evidence.
In the alternative, the appellant complains that the Judge failed to adequately direct the jury as to the ways in which they could and could not use the evidence of the appellant’s violent behaviour.
In the further alternative, the appellant’s third complaint is that the Judge erred in failing to order separate trials of the counts relating to ST and JT.
I will consider these complaints in turn.
Discreditable Conduct: Admissibility
The appellant’s first contention was that the probative value of the evidence of discreditable conduct on the part of the appellant is substantially outweighed by its prejudicial effect. The appellant submitted that, because there was no evidence that the appellant used any violence in perpetrating the sexual offences committed against JT and ST, the evidence of his violent conduct towards ST and JT generally was not sufficiently probative of any fact in issue such as to justify its admission. Further, the allegations of the appellant’s violent conduct were extremely prejudicial in light of the fact that within minutes of the first alleged victim, ST, being called, the jury was told that the appellant was very angry, aggressive, yelled, hit and threw things at SS, kicked and punched animals, and hit both RT and ST. The appellant complained that, given the way in which this evidence unfolded, the entirety of the trial took place against the background of violent behaviour detailed by ST, and the Judge’s direction during the summing up to the jury that it could not engage in impermissible bad character reasoning was, in all of the circumstances, insufficient to dispel the prejudicial effect of that evidence.
Analysis
It was common ground that the evidence of the appellant’s violence and verbal abuse comprised evidence of discreditable conduct, the admissibility of which fell to be determined under s 34P(2)(a) of the Evidence Act 1929 (SA) (the Evidence Act).
In my view, the evidence led on the prosecution case 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. While it is true that there are other cases in which the violent conduct of the perpetrator has been far more extreme than the allegations made in the present case, the evidence led about the appellant’s conduct in the family environment nevertheless went much further than merely demonstrating that the appellant is a man who has a bad temper.
It is true that JT, who was four and a half years younger than ST, did not give such detailed evidence about the appellant’s aggression and violence as ST. Nevertheless, in my view it is incorrect to characterise JT’s evidence as confined to simply two incidents. The tenor of the evidence given by JT, even though she described only two specific instances of violence, was similar to the description given by ST about the appellant’s behaviour. She described the relationship between the appellant and SS as they “used to fight a lot” and then he became violent. JT said:
Q.How would you describe Mr Hennig's relationship with your mother at that time.
A.They used to fight a lot. I wouldn't say it was violent or anything at that time, but most of the time there was yelling, so, yeah.
Q.You said it wasn't violent at that time. Did that change.
A.Yes.
Q.When did that change.
A.I'd say a while after, after he started yelling. One time I actually do remember that he tried to get in the house and it was actually locked and he smashed the window and then tried to open the door to get in.
Q.Try and take it step by step. When Mr Hennig started to become violent was that when you were still living in Powell Terrace in Kadina.
A.Yes.
Q.Who did you see him being violent towards.
A.My mum and my sister [RT].
Q.What did you actually see in terms of violence; what things was he doing.
A.He pushed [RT] on the bed, so pushed basically - I don't know how it started, but basically they were fighting and then he pushed her out the way and she actually fell on the bed.
Q.What about with your mother, are there any occasions where you remember Mr Hennig being violent with your mother.
A.Not at that house, no.
Q.You've mentioned an incident with a window.
A.Yep.
Q.Was that at Powell Terrace in Kadina.
A.Yes.
JT went on to describe the incident referred to above when the appellant smashed his way back into the house and they all ran away.
The evidence of SS was also important in this context. It described a family atmosphere in which the appellant would become agitated, angry and verbally abusive about small things, throw objects and become physically abusive. SS gave evidence of the appellant’s behaviour worsening over time, in that he began by yelling at ST but progressed to yelling at RT and then also JT.
It can be seen from the whole of this evidence about the appellant’s conduct that, far from being irrelevant to the ongoing sexual offending against JT and ST, the conduct was highly relevant to explain the context and dynamics within the family household during the whole of the period in which the appellant sexually offended against the two girls. As a matter of plain common sense it was relevant to explain why it was that the sexual offending went on for as long as it did without either girl complaining.
The submission made on appeal that the evidence of the non-sexual violence perpetrated by the appellant was irrelevant because it was not perpetrated at the time of the sexual offending behaviour is based on the misconception that a person’s violent behaviour in a family context can simply be put to one side if it bears no temporal relationship to the sexual offending. I reject that submission. It is not in accordance with common sense or any basic understanding and experience of human behaviour. Nor do I accept that the degree of violence in this case, being rather less extreme than in some other cases such as in R v MBJ[1] and R v MJJ; R v CJN,[2] should be determinative of its admissibility. Any violence in a family context be it verbal, physical or emotional, and here there was plainly a combination of all three aspects of violence on the part of the appellant, is relevant to explain how it could be that a man who became a member of that household was able to commit offences against two vulnerable young complainants, and how it was that he came to offend against them over an extended period. It is also a matter of common human experience that violent behaviour, be it physical or verbal, is intimidating to those around the perpetrator, more especially so when they are vulnerable young children.
[1] (2011) 110 SASR 1.
[2] (2013) 117 SASR 81.
The fact that on the evidence of SS the atmosphere of aggression and fear within the household was so pervasive that in the end it provided the trigger for her to leave the relationship to protect her children is a clear indication of the relevance of the evidence.
I would grant permission but dismiss this ground of appeal.
Discreditable Conduct: Permissible use
I turn now to deal with the alternative complaint that the trial Judge failed to adequately direct the jury as to the permissible and impermissible use of the evidence.
The trial Judge gave the following direction concerning the evidence:
Let me now say something about the topic of violence.
During the course of the trial we heard evidence from [ST] and [ST] and from their mother [SS] that the accused could be verbally and physically violent. There was evidence that the accused would yell in the faces of the girls and their mother; that he pushed [SS] with open hands; that he backhanded [ST] and [JT]; that he pushed [A’s] face into a plate of food; that he hurt a dog; that he threw a doorstop at his wife and [ST]; that he broke a pane of glass to get back in the house at Powell Terrace after an argument; that there was an occasion when he threw a hand-held phone and then pushed [RT] against a bed.
Ladies and gentlemen, you must be very careful about how you may and may not use that evidence if you accept it or any of it. If you find that one or some of those incidents occurred and that the accused did become violent when he lost his temper, then you must not reason that, simply because he became violent when he lost his temper, he is the sort of man who would commit sexual offences against his stepdaughters. You must not reason in that way. It would be illogical and unfair to do so. But you may use the evidence that he could become violent, if you find that to be the case, in this way: you may use it in assessing the evidence of [ST] and [JT] when considering why it is that, if he was sexually abusing them, they did not complain. Were they, perhaps, scared of him because they had seen him being violent?
Analysis
As I understood it, the complaint on appeal about these directions was not that the trial Judge failed to warn the jury that they could not engage in impermissible bad person reasoning on the basis of the discreditable conduct. Rather, the complaint was that the error lay in telling the jury that the evidence of discreditable conduct could be used to answer the question of why the complainants had not complained about the offending for some years, in circumstances where delay had not been raised on the defence case as an issue at the trial. In short, it was said that the jury were invited to use the discreditable conduct evidence for a purpose for which it was never required.
In the directions set out in the passages above, the trial Judge correctly directed the jury, first, how they could not use the evidence of the discreditable conduct, and secondly, how they could use that evidence. I consider that, due to the manner in which the evidence unfolded, that direction was open on the evidence. Indeed, in my view the trial Judge was required to direct the jury in accordance with s 34R of the Evidence Act as to both the permissible and impermissible use of the evidence. The fact that neither of the complainants specifically referred to the appellant’s violent conduct when giving evidence about the delay in complaining does not relieve the Judge of the obligation to direct the jury in accordance with the section. This is especially so in light of the fact that the question might well have naturally arisen in the minds of the jury as a result of the nature of the evidence given.
The Judge’s direction was to the point, succinct, and did not place any emphasis on any particular aspect of the discreditable conduct. In my view it was a careful and balanced direction in the context of the issues at trial. I would grant permission but dismiss this ground of appeal.
Separate trials
The third ground is a complaint that separate trials should have been ordered in relation to ST and JT because the extent of the appellant’s violence differed in relation to each complainant. The appellant submitted that most of the evidence of violent conduct came from ST and that JT’s more limited evidence of the violence was then given against the background of ST’s more detailed evidence, and in circumstances in which the trial Judge did not give the jury any direction as to how approach that imbalance.
It will be apparent from the summary of the evidence of ST and JT earlier herein that I do not accept the premise that the accounts given by ST and JT differed materially. While it is true that the younger complainant JT spoke of only two specific instances, for the reasons I have analysed above the tenor of her evidence, and in fact ST’s and SS’ evidence, pointed to the same conclusion, namely that the appellant was frequently aggressive and violent both verbally and physically with all members of the household and the animals.
For these reasons, I consider that there was no need for any separate direction about the discreditable conduct evidence insofar as it affected JT and ST. In my view that evidence was relevant and admissible in respect of both counts to explain why it was that the offending went on for as long as it did before either girl complained.
It follows that there was no need to give any special direction, nor was it necessary to separate the trials with respect the charges against ST and JT.
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.
NICHOLSON J. I agree with the orders proposed by Kelly J for the reasons given by her Honour.
LOVELL J. I agree with the orders proposed by Kelly J for the reasons given by her Honour.
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