R v Johnson

Case [2015] SASCFC 170

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v JOHNSON

[2015] SASCFC 170

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Stanley)

24 November 2015

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

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - CHILDREN - CRIMINAL CAPACITY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

Appeal against conviction. The appellant was convicted by jury of five sexual offences against his sister, VW. VW was born on 12 April 1956 and first gave a statement to police concerning these matters on 27 May 2008 when 52 years old. At the time of trial she was 58 years old.

The first count, indecent assault, was alleged to have taken place between December 1964 and January 1966, when the appellant was between 11 and 13 years old, and VW was between 8 and 10 years old. However, the evidence of the other witnesses suggested the incident likely occurred prior to December 1964, when the appellant was about 10 years old. The other four counts were alleged to have been committed within specific periods of time between 1970 and 1984, commencing from when the appellant was almost 17 years old.

VW gave evidence of uncharged indecent conduct by the appellant and gave evidence that she complained to her mother, but that her mother did not remonstrate with or punish the appellant, suggesting that it was unlikely that the appellant as a young child was impressed that the conduct complained of was seriously wrong.

VW gave general evidence in relation to the count of persistent sexual exploitation that the appellant would regularly sexually abuse her on an almost weekly basis, commencing when she was 15 or 16 years old, and that there was nothing to differentiate between one assault to the other. The Judge directed the jury that they must be agreed as to at least two specific acts of sexual exploitation which made out the offence.

There was evidence led without objection that VW complained to a number of people, including Mr Angel, as to incidents constituting the charges. The defence case was run on the basis that the alleged offences did not occur and that the complainant had made up the allegations as part of a bitter dispute concerning money and financial entitlements.

The appellant contended: that the trial miscarried as a result of the charge of indecent assault being tried with the other charges and as a result of all counts being tried together; that the Judge erred in…

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R v Johnson [2015] SASCFC 170
Case
[2015] SASCFC 170
Decision Date

CaseChat Overview and Summary

The appellant, R v Johnson, was convicted of sexual offences against a child. The appeal concerned the admissibility of certain evidence and the adequacy of jury directions. The court was required to determine whether the admission of complaint evidence was lawful and whether the trial judge provided sufficient directions to the jury regarding its use, and whether the verdict on one count was unreasonable or insupportable having regard to the evidence.

The primary legal issues before the court were the admissibility and proper use of complaint evidence in sexual offence cases, particularly in light of section 34M of the Evidence Act 1929 (SA), and whether the evidence presented was sufficient to rebut the presumption of doli incapax for a ten-year-old offender. The court also considered whether the conviction for persistent sexual exploitation of a child was supported by the evidence and the judge's directions.

The court found that while complaint evidence was admitted, no objections were recorded, and the trial judge's directions regarding its use were not explicitly detailed in the provided text. However, the court focused on the presumption of doli incapax, noting that for an offender under the age of ten, there is a presumption that they lack criminal capacity. The court held that the evidence of three uncharged acts, when considered with the parental response to the child's complaints, was insufficient to satisfy the jury beyond reasonable doubt that the appellant, aged ten at the time of the shed incident, understood his actions were wrong in the sense of attracting criminal responsibility. The court also reviewed the evidence and directions concerning count 3, the charge of persistent sexual exploitation, noting the judge's summation focused on the complainant's credibility and the likelihood of the alleged events occurring.

Ultimately, the court allowed the appeal in relation to count 1, finding the verdict unreasonable and insupportable, and ordered an acquittal. The court's decision on count 1 made it unnecessary to consider one of the grounds of appeal relating to that count. The court then proceeded to consider the application of another ground of appeal to the conviction on count 3.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Senior counsel for the appellant, who did not appear during pre-trial proceedings or at trial, asserts on appeal that inadmissible evidence of a number of complaints by VW was admitted at trial. She also asserts that no sufficient directions were given by the Judge concerning the use of such evidence.Section 34M of the Evidence Act 1929 Section 34M of the Evidence Act 1929 was enacted in 2008.[27] It deals with complaint evidence in sexual cases and provides as follows:[27] See Statutes Amendment (Evidence and Procedure) Act 2008, s 18; this provision inserted “Division 2 – Miscellaneous rules of evidence in sexual cases” which comprises ss 34L, 34M and s 34N into the Evidence Act 1929.(1)This section abolishes the common law relating to recent complaint in sexual cases.Note—See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.Examples—Evidence may be given by any person about—•when the complaint was made and to whom;•the content of the complaint;•how the complaint was solicited;•why the complaint was made to a particular person at a particular time;•why the alleged victim did not make the complaint at an earlier time.(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—(a) it is admitted—(i)to inform the jury as to how the allegation first came to light; and(ii)as evidence of the consistency of conduct of the alleged victim; and(b) it is not admitted as evidence of the truth of what was alleged; and(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).(6)In this section—complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). There was evidence by VW that she complained over the years to a number of people as to various of the incidents constituting the present counts. However, the most notable thing about this evidence is that there is not a single objection to its reception is recorded on the trial transcript. The reason for the absence of objections is found in recorded dialogue between those representing the appellant and Judges on pre-trial hearings and at trial.

Decision

Reasons for decision

SULAN AND STANLEY JJ
Upon a review of the whole of the evidence, the jury should have had a reasonable doubt that the appellant, when ten years old, actually understood that what he was doing with VW in the shearing shed was wrong in the relevant sense. His description of it as a “game”, while obviously self-serving, is a reasonable hypothesis as to the appellant’s then mental state. The whole of the evidence is not capable of negating that reasonable hypothesis or of rebutting the presumption of doli incapax. Conclusion as to count 1 The verdict of guilty on count 1 cannot stand. The appeal must be allowed and judgment of acquittal entered on count 1. This result makes it unnecessary to consider ground 8 of the appeal. Ground 9 of appeal: Application to count 3 I turn to the application of ground 9 of appeal to the conviction on count 3.The evidence relied on by the prosecution on count 3 After VW gave her evidence-in-chief concerning the day on which count 2 occurred, she gave the following evidence relevant to count 3:QAfter that day, did Ian continue to abuse you?AYes.QWas that abuse in a sexual manner?AYes.QIn any other manner?APhysically, violence.QThe sexual abuse, what form did that take?AHe would rape me repeatedly.HIS HONOUR I didn’t hear sorry.EXAMINATIONQHe would rape me repetitively, is that what you said?AYeah.QHow would he do that, what form did that take?ASexual, penile.QSo would he continue to put his penis in your vagina?AYes.QAnd how often would that happen, for example, when you were 15?AEvery week or -QAnd when you were 16?AEvery week or so.QAnd where would that happen?AAt home.QWhereabouts at home?AGenerally in my bedroom. … QYou’ve told us that when you were 15 or 16 Ian would sexually abuse you on an almost weekly basis, can you be specific about any of those occasions when you were 15 and 16 when Ian abused you?AAfter Lucindale it was just a regular occurrence pretty much. There was nothing to differentiate between one assault to the - sexual assault to the other.QBy sexual assault, were the acts the same?APretty much, yes.QAnd they were what sort of sexual act?AThey were rape.QWhich involved?AHe penetrating me with his penis.QWhen you were 17 did anything change?AI met Rick when I was 17 … This marks the conclusion of evidence as to count 3. VW then goes on to describe a change in her life due to her marriage, although she describes later offending by both the appellant and his brother.The Judge’s directions to the jury The Judge directed the jury concerning count 3 thus:[64][64] Summing Up at pages 47-50.Count 3 is the charge of persistent sexual exploitation of a child. An adult person charged with the offence of persistent sexual exploitation of a child is guilty of such an offence if, over a period of not less than three days, he commits more than one act of sexual exploitation of a particular child who was under the prescribed age. That is a mouthful but, again, look at the particulars.The particulars here are that the accused over a period of not less than three days, between 9 June 1971 and 11 April 1973, when the accused was aged 18 or 19 and the complainant 15 and 16, committed more than one act of sexual exploitation of the complainant who was a person, over the age of 13 and under the age of 17 years, by inserting his penis into her vagina.That charge of persistent sexual exploitation of a child was enacted by Parliament to provide for those cases where a child may not remember in sufficient detail when and where and the circumstances in which individual acts of sexual abuse might occur. The complainant alleges that the accused performed penile-vaginal sexual intercourse with her every week or so when she was aged 15 or 16.The offence of persistent sexual exploitation of a child permits the prosecution to allege acts of sexual exploitation that may or may not be sufficiently detailed to be brought within the umbrella of that charge. The elements of the charge of persistent sexual exploitation of a child are as follows:The first element is that the accused was an adult at the time of the alleged offending; two, the accused committed sexual acts against a particular child; three, the child was under the prescribed age; four, the accused committed more than one act of sexual exploitation; five, that the said acts were committed over a period of not less than three days. As I say, the accused denies each and every allegation of sexual exploitation.A person is an adult if he is 18 years of age or older. In this first element you should have no difficulty in being satisfied beyond reasonable doubt that the accused was aged 18 years or over at the time of the alleged sexual acts on the prosecution case.The second element is that the sexual acts were committed against a particular child. In this case, it is alleged the child is the complainant.The third element is that the child was under the prescribed age at the time the acts were committed. The prescribed age for the purpose of this offence is 17 years and it is asserted that she was aged 15 and 16.If you accept the evidence of the complainant you would have no difficulty in being satisfied that she was aged under 17 years, namely 15 and 16 years of age.The fourth element is that the accused committed more than one act of sexual exploitation against the child. ‘Sexual exploitation’ means a sexual offence. In the present case, the prosecution alleges that the accused committed the same type of act of sexual exploitation against the complainant on each occasion every week or so, namely that he penetrated her vagina with his penis.The prosecution contends that each of the accused’s acts of penetrating her vagina with his penis constituted the sexual offence of carnal knowledge to which I have already directed you at the time of the alleged offences.So before you can convict the accused of this offence you, the jury, must be agreed as to the specific acts of sexual exploitation which make out the offence. It is sufficient the prosecution proves the accused committed no less than two alleged acts of sexual exploitation and, secondly, that the proved acts each amounted to an offence of carnal knowledge.The fifth element is that the proved acts of sexual exploitation were committed over a period of not less than three days. It is not sufficient that the accused may have committed more than one act, he must have committed two or more acts over a period of not less than three days. The prosecution case here is that over a long period of time the accused committed acts of carnal knowledge against the complainant when she was 15 and 16. If you accept the prosecution case beyond reasonable doubt, then clearly he would have committed two or more acts of sexual exploitation; that is to say, carnal knowledge over a period of not less than three days. What you are asked to do as a jury is to determine the specific acts of sexual exploitation, namely specific acts of carnal knowledge, which make out the offence.Ladies and gentlemen, both parties put their submissions to you about count 3, the charge of persistent sexual exploitation of a child. They directed their submissions to whether you accepted the complainant’s evidence that this was going on every week or so effectively in her bedroom. You heard the submissions by Mr Wickens about the wardrobe being pushed across, you heard the submissions about the family members still being there, that is to say the father and the mother. He submitted that this version of the complainant was a nonsense. Just think about the likelihood of this having occurred on that regular basis as asserted by the complainant.I am sure you are clear in your own minds about the respective submissions of counsel on that count of persistent sexual exploitation. The principal question is as to whether this ever occurred at all, whether the complainant gave a truthful and reliable account of her version of those allegations. (Emphasis added)The memorandum provided to the jury by the Judge

Ratio Decidendi

Legal Principle Established

Established by: SULAN AND STANLEY JJ

The second requirement identified by Lord Lowry is that evidence limited to the mere proof of the doing of the act charged, however horrifying or objectively wrong that act may be, is insufficient to prove the child’s guilty knowledge. His Lordship observed that the cases seem to show, predictably enough, that the older the child is and the more obviously wrong the act, the easier it will generally be to prove guilty knowledge[62] and that, in that context, surrounding circumstances are relevant.[63] [62] [1996] 1 AC 1, 33; 39. [63] [1996] 1 AC 1, 39. Consideration In the present case, the prosecution relied upon three uncharged acts to establish that, at the time of the shed incident, the appellant knew what he was doing was wrong in the relevant sense. First, an incident when VW was about three years old and was sharing a bath with the appellant, when he placed his toe onto her vagina. She said this hurt and kicked out at the appellant and hurt him. He got out of the bath and complained to their mother who remonstrated with VW. Second, an incident when VW was about four or five and she was taken into the implements shed on the family property by the appellant and her older brother Neil. She described Neil removing her underpants and rubbing his penis against her vagina while the appellant held her down. VW screamed and yelled and told them to stop. VW told her mother who chastised her. Third, an incident when VW was about five or six years of age and Neil and the appellant came into her bedroom and held her on the bed. Neil rubbed his penis on her vagina, as did the appellant. At the time of these three uncharged acts, the appellant would have been about six; seven or eight; and eight or nine years of age respectively. The evidence of the three incidents is notable for the fact that, according to VW, their mother did not remonstrate with the appellant after VW complained to her but rather remonstrated with VW; the appellant was not chastised or punished as a result of these incidents. This parental response was unlikely to impress upon the mind of the appellant, a child younger than ten years at the times of the three incidents, that the conduct complained of was wrong in the relevant sense. In order to find that the appellant, being of the age of ten years at the time of the shed incident, had the requisite state of mind necessary to rebut the presumption of doli incapax, the jury had to be satisfied beyond reasonable doubt that the appellant knew that his act in the shed, namely, rubbing his penis against VW’s vagina, was wrong in the sense that it attracted criminal responsibility. In other words, as stated by Harper J in Whitty, that he understood that he was subject to punishment for the act with which he was charged. Upon a review of the whole of the evidence, the jury should have had a reasonable doubt that the appellant, when ten years old, actually understood that what he was doing with VW in the shearing shed was wrong in the relevant sense. His description of it as a “game”, while obviously self-serving, is a reasonable hypothesis as to the appellant’s then mental state. The whole of the evidence is not capable of negating that reasonable hypothesis or of rebutting the presumption of doli incapax. Conclusion as to count 1