SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v INSTON
[2009] SASC 89
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Anderson)
6 April 2009
EVIDENCE - ADMISSIBILITY AND RELEVANCY - SIMILAR FACTS
CRIMINAL LAW - EVIDENCE - CORROBORATION
Appeal against conviction - defendant and appellant charged with two counts of unlawful sexual intercourse with person under 12 years of age and three counts of indecent assault all with persons under the age of 12 years - jury returned majority guilty verdict in District Court trial on first count of unlawful sexual intercourse and majority not guilty verdict on second count - majority not guilty verdicts returned on counts of indecent assault - at trial relationship evidence led to explain how conduct continued and complainants submitted to conduct - whether trial Judge erred in rejecting application for severance of complaints - relationship evidence of complainants with respect to their complaints admissible - whether evidence of complainants cross-admissible - whether delay resulted in unfair trial - whether warning required - whether evidence of complainants credible and reliable - whether verdicts of jury should be set aside by reason of error of law or miscarriage of justice.
Held: purpose of evidence said to be cross-admissible was to establish a pattern of behaviour by the defendant towards his young granddaughters and a course of behaviour involving sexual touching and abuse - evidence admissible, probative and relevant to complainants’ evidence - direct evidence of complainants credible and reliable - value of evidence lies in improbability of complainants giving accounts of happenings with marked degree of similarity - trial Judge summarised disadvantages of defendant to jury - trial Judge’s observations incorporated references to the length of delay of complaints and further directed jury to give evidence careful scrutiny and that jury ought to be satisfied beyond reasonable doubt that accused guilty on each count - no prescription as to precise words to be used in Longman or delay warnings - trial Judge’s observations and warnings adequate - no miscarriage of justice to warrant intervention of appellate court.
Criminal Law Consolidation Act 1935 (SA) s 278 and s 353; Evidence Act 1929 (SA) s 34CB and s 34I(6a); Statutes Amendment (Evidence and Procedure) Act 2008 (SA) s 16, referred to.
Hoch v The Queen (1988) 165 CLR 292; Sutton v The Queen (1984) 152 CLR 528; Phillips v The Queen (2006) 225 CLR 303; R v Handy [2002] 2 SCR 908; Martin v Osborne (1936) 55 CLR 367; HML v The Queen (2008) 245 ALR 204; DPP v Boardman [1975] AC 421; Longman v The Queen (1989) 168 CLR 79; Doggett v The Queen (2001) 208 CLR 343; R v BFB (2003) 87 SASR 278; Crampton v The Queen (2000) 206 CLR 161; R v GPP (2001) 129 A Crim R 1; Gaulard v The Queen [2000] WASCA 218; Crisafio v…
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- AGLC
- R v Inston [2009] SASC 89
- Case
- [2009] SASC 89
- Decision Date
CaseChat Overview and Summary
The case of R v Inston involves an appeal against the conviction of the defendant, who was charged with two counts of unlawful sexual intercourse with a person under 12 years of age and three counts of indecent assault, all involving persons under the age of 12 years. The District Court jury returned majority guilty verdicts on the first count of unlawful sexual intercourse and majority not guilty verdicts on the second count and all counts of indecent assault. The appellant argues that the trial judge erred in several respects, including in rejecting an application for severance of complaints and in the directions given to the jury. The appellant contends that these errors resulted in a miscarriage of justice.
The legal issues the court was required to decide included whether the trial judge erred in rejecting the application for severance of complaints, whether the relationship evidence of the complainants with respect to their complaints was admissible, whether evidence of the complainants was cross-admissible, whether the delay resulted in an unfair trial, whether a warning was required, and whether the evidence of the complainants was credible and reliable. The court was also required to determine whether the verdicts of the jury should be set aside by reason of error of law or miscarriage of justice.
The court held that the evidence was admissible, probative, and relevant to the complainants' evidence. The value of the evidence lies in the improbability of the complainants giving accounts of happenings with a marked degree of similarity, unless those happenings in fact occurred. The trial judge gave careful directions to the jury regarding the question of concoction and whether the complainants had put their heads together. The trial judge also summarised the disadvantages of the defendant to the jury and directed the jury to give the evidence careful scrutiny and to be satisfied beyond reasonable doubt that the accused was guilty on each count. The trial judge's observations and warnings were adequate, and no miscarriage of justice warranted intervention by the appellate court.
The court dismissed the appeal and upheld the convictions. The trial judge's directions to the jury and the evidence adduced at trial were sufficient to support the verdicts returned by the jury. The court found no miscarriage of justice and no error of law in the trial judge's handling of the case. The appeal was dismissed, and the convictions were upheld.
The legal issues the court was required to decide included whether the trial judge erred in rejecting the application for severance of complaints, whether the relationship evidence of the complainants with respect to their complaints was admissible, whether evidence of the complainants was cross-admissible, whether the delay resulted in an unfair trial, whether a warning was required, and whether the evidence of the complainants was credible and reliable. The court was also required to determine whether the verdicts of the jury should be set aside by reason of error of law or miscarriage of justice.
The court held that the evidence was admissible, probative, and relevant to the complainants' evidence. The value of the evidence lies in the improbability of the complainants giving accounts of happenings with a marked degree of similarity, unless those happenings in fact occurred. The trial judge gave careful directions to the jury regarding the question of concoction and whether the complainants had put their heads together. The trial judge also summarised the disadvantages of the defendant to the jury and directed the jury to give the evidence careful scrutiny and to be satisfied beyond reasonable doubt that the accused was guilty on each count. The trial judge's observations and warnings were adequate, and no miscarriage of justice warranted intervention by the appellate court.
The court dismissed the appeal and upheld the convictions. The trial judge's directions to the jury and the evidence adduced at trial were sufficient to support the verdicts returned by the jury. The court found no miscarriage of justice and no error of law in the trial judge's handling of the case. The appeal was dismissed, and the convictions were upheld.
Orders
Orders of the court
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Background
Background to the litigation
He appeals against those convictions, arguing that a miscarriage of justice resulted from the refusal of the learned trial judge to order separate trials in respect of each complainant, and from certain asserted defects (or more accurately, deficiencies) in the directions given to the jury by the judge, notably in the judge’s warning to the jury as to the consequences of the long span of time between the alleged offending and the trial. It is further argued that the verdicts are unreasonable, unsafe and unsatisfactory, for reasons which include the acquittal on one count.Background In light of the nature of the appeal grounds it is necessary to descend into some detail in relation to the evidence. The elder complainant, whom I shall call “A”, was born in May 1978. She is four years older than her sister, “B”. A related that her first memory of inappropriate touching by the appellant – her mother’s father – was when she was about six years of age. It consisted of tickling, starting at her back but progressing under her clothing to her chest or beneath her underclothing. She would often be seated on the appellant’s lap when this took place. Her mother would often be present; but it never occurred in the presence of her father. In about March 1983 the sisters’ family moved to a country town. Not long after that the appellant and his wife and their youngest son followed the family to that town, moving into the house next door. According to A, the appellant’s handling of her then “seemed to go to another level”. She described an incident (count 1) when her mother told her to go to her grandparents’ home after school. She was aged ten years at the time. Only the appellant was at home. Initially she played outside. Later, when she came in for a drink, the appellant called her over “for a hug”. He put A on his knees. She described how he penetrated her vagina with his index finger, moving it in and out until she “felt excited and flushed and … different” from how she had ever previously felt. That was the first instance of penetration she could recall. Count 2, of which the appellant was acquitted, was described as having occurred in about the same period, in the same house, but in a room accommodating the appellant’s computer. The girls’ mother and grandmother were said to be present although in the dining room. A described needing to go to the lavatory which took her past the appellant, who was seated at his computer. He called her into the room, saying he wanted to show her something. She saw that he had a child’s game on the screen. He was demonstrating the game, using the mouse in his left hand. A said he then penetrated her anus with his middle finger. In cross-examination A agreed that in a “writing” relating to this incident, she had described the appellant, in the dining room, being given a cup of tea by his wife, and then taking A with him to the computer. She asserted that her evidence, rather than the writing, was correct.
Evidence
Evidence Before The Court
At the outset, it is necessary to identify the issues at trial on which the suggested cross-admissible evidence is to be tendered. This step allows the suggested relevance and probative force upon which the admissibility of the evidence depends to be assessed.[2] The question raised on this appeal concerns the cross-admissibility of evidence in circumstances where, in the one family, there are allegations of sexual offending by the defendant against different complainants. [2] Phillips v The Queen (2006) 225 CLR 303 at [26]. See also Hoch v The Queen (1988) 165 CLR 292 at 301 (Brennan and Dawson JJ); R v Handy [2002] 59 SCR 908 at [69].Circumstantial evidence Evidence proposed to be tendered as being cross-admissible may be characterised as circumstantial evidence with respect to each count. As Brennan J observed in Sutton:[3]Evidence of similar facts consisting in proof of the commission of offences other than the offence charged is therefore a particular category of circumstantial evidence which is subject to a special exclusionary rule. It is wrong to regard evidence of that kind as undifferentiated from circumstantial evidence generally and to hold, as Wells J. held, that there are no categories of circumstantial evidence.Dawson J similarly observed:[4]Similar fact evidence is, of course, only circumstantial evidence but it is circumstantial evidence of a particular kind because of the inevitable prejudice, to use the words of Wilson J., which it carries with it. Although there is no necessary requirement of law or of practice, generally where the evidence in a case is circumstantial some direction ought to be given to that jury that before they convict the accused they must be satisfied that the facts are such as to be inconsistent with any other rational conclusion than the guilt of the accused. See Reg. v. Hodge [(1838) 2 Lewin 227, at p. 228 [168 E.R. 1136] at p. 1137]; Plomp v. The Queen [(1963) 110 C.L.R. 234]; Gant v. The Queen [(1981) 147 C.L.R. 503]. Such a direction is a particular expression of the mandatory direction that guilt must be proved beyond reasonable doubt, but it is appropriate in most cases of circumstantial evidence because it serves to emphasize the special care which must be taken in those cases. [3] Sutton v The Queen (1983) 152 CLR 528 at 548.[4] Sutton v The Queen (1983) 152 CLR 528 at 563-564. In Sutton,[5] Dawson J then summarised the general approach to be taken to the reception of similar fact evidence:The law does not admit evidence tending to show only that an accused person has committed other offences as proof of the commission of a particular offence with which he is charged. This is because mere proof of the other offences can do no more than demonstrate a criminal propensity and the prejudicial nature of evidence of this kind is far greater than any relevance it might have. To admit such evidence would be to invite the jury to proceed upon suspicion rather than proof. If, however, the evidence which tends to prove the commission of other offences has a sufficient additional probative value beyond showing a disposition to commit crime or a particular type of crime, then the evidence is admissible for that reason and not because it may show a criminal propensity. The cases in which similar fact evidence may have sufficient additional relevance to make it admissible are not confined, but recognized instances occur where the evidence is relevant to prove intent or to disprove accident or mistake, to prove identity or to disprove innocent association. …The question which arises with similar fact evidence, which because of its prejudicial nature is treated as a special kind of circumstantial evidence, is not only what direction should be given to the jury but whether the evidence is admissible at all. Having regard to the various expressions which are used to lay down the test of admissibility, it seems to me that a trial judge may find assistance in arriving at the correct test in any particular case by applying the same standard as the jury must ultimately apply in dealing with circumstantial evidence. If in considering the admissibility of similar fact evidence the trial judge concludes that there is a rational view of that evidence which is inconsistent with the guilt of the accused, then he ought not admit it because in those circumstances the evidence cannot be said to have a sufficiently strong probative force. Prejudice may operate where neither logic nor experience necessarily require the answer that the evidence points to the guilt of the accused and that being so the probative force of the evidence will not outweigh or transcend its prejudicial effect. Such an approach is, I think, consistent with what this Court said in Martin v. Osborne [(1936) 55 C.L.R. 367] in considering the admissibility of similar fact evidence and is certainly consistent with the frequently expressed view that similar fact evidence is dangerous and is to be treated with greater caution than other circumstantial evidence. Of course, the question is ultimately one for the jury but if in order to rule that the evidence is admissible the trial judge must conclude (as it is clear he must) that it has a stronger degree of probative force than would lead merely to the conclusion that it is capable of being regarded, apart from propensity, as pointing to guilt, then it seems to me to follow that before admitting the evidence the trial judge himself must conclude that a reasonable jury would, if they accept the evidence, regard it as being inconsistent with innocence. This is to say no more than that to be admissible the similar fact evidence must give rise to a clear inference tending to establish an element of the offence charged and must not be reasonably explicable upon some other basis. Notwithstanding that the question is one of admissibility, it is nevertheless a matter of degree rather than deductive logic and it cannot be said that a clear inference arises unless “general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved”. See Morgan v. Babcock & Wilcox Ltd [(1929) 43 C.L.R. 163, at p. 173.] …It is not, I think, a case in which any one circumstance common to the various offences was sufficiently striking to eliminate any reasonable possibility of coincidence. Rather it was the accumulation of common circumstances which had that effect. It is, of course, possible to consider each similar fact in the context of other similar facts and conclude that, looked at together, mere coincidence is not a reasonable hypothesis but be unable to reach that conclusion viewing each set of similar facts separately. Despite some suggestion to the contrary in the Court below, Perry v. The Queen [(1982) 150 C.L.R. 580 ] did not require each set of similar facts in that case to be regarded separately in order to arrive at their probative value; it was merely that the impugned evidence, even when viewed in the context of the other evidence, did not have the required probative force. [5] Sutton v The Queen (1983) 152 CLR 528 at 562-565, 567-568.A pattern of activity
Decision
Reasons for decision
GRAY J
ANDERSON J
(dissent)
The Judge gave the jury careful directions with respect to the question of concoction and whether the complainants had put their heads together. In that respect, the Judge provided the following direction:[Counsel] for the defence submits that there is no criminal system. There is no apparent system or underlying unity. He says you should conclude that the women have got together as adults and have come to the point of making false stories about their grandfather.That submission leads to the fourth and final rule: if you thought it could be that one or both women’s accounts have been concocted or made up or prompted by the account of another, then you would not be able to put their evidence together. If you could not exclude the possibility that [A] and [B] had put their heads together to come up with similar stories, then of course you could not put their evidence together.So only if you can exclude as a reasonable possibility that they have put their heads together to concoct a story, or you could exclude the possibility of their making up a story, having heard the other’s story, could you use their evidence together.The question of possible joint concoction was adequately addressed by the Judge in the above direction. The jury had to exclude joint concoction as a reasonable possibility before they could make use of the complaints’ accounts together.Conclusion re cross-admissible The evidence established that the defendant, as a middle-aged man, was sexually attracted to his young granddaughters. His conduct toward each of the complainants occurred in circumstances where they were young family members at his home or at family gatherings where the opportunity to take advantage of his proximity arose. The complainants described the sexual abuse as having occurred in the course of an apparently innocent contact with the defendant, which placed him in close physical proximity to them. He took advantage of that proximity to engage in acts of inappropriate sexual contact, including inappropriate touching over or through clothing. The defendant’s conduct on each occasion could be described as “brazen”. In my view, the evidence of each complainant was relevant and probative with respect to the counts concerning the other complainant. There is a sufficient similarity about the conduct to evidence propensity on the part of the defendant to have committed the alleged conduct. Equally, the fact that the complainants each complained of similar conduct toward them would suggest that the occurrences were not coincidental. The value of the evidence also lies in the improbability of the complainants giving accounts of happenings having a marked degree of similarity, unless those happenings in fact occurred. To adopt the words of Lord Wilberforce in Boardman:[15]This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.[15] DPP v Boardman [1975] AC 421 at 444.
Ratio Decidendi
Legal Principle Established
Established by: GRAY J,
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