R v Johnson
[2015] SASCFC 170
•24 November 2015
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 inadequately identifying and directing as to discreditable conduct evidence; that the complaint evidence was admitted contrary to s 34M of the Evidence Act 1929 and the Judge failed to adequately direct as to its uses; that the Judge failed to adequately direct as to the significant forensic disadvantage; that the Judge failed to adequately put the defence case; and that the verdicts were unreasonable or cannot be supported by the evidence.
Discussion of the presumption of doli incapax.
Held per Peek J (allowing the appeal in part) (Sulan and Stanley JJ agreeing):
1. The charges were properly joined pursuant to s 278 of the Criminal Law Consolidation Act. The evidence on Counts 2 to 5 was cross-admissible. The evidence on Count 1 was admissible on Counts 2 to 5. The evidence on Counts 2 to 5 was not admissible on Count 1, but the Judge gave full directions in this regard to the jury.
2. The Judge gave adequate directions as to discreditable conduct evidence and its permissible and impermissible uses.
3. Pursuant to a legitimate tactical decision by defence counsel, there was no objection to the admission of the complaint evidence at trial. No miscarriage of justice arising from the reception of that evidence is demonstrated. The Judge gave extensive directions as to the use of that evidence.
4. The directions as to forensic disadvantage were sufficient.
5. The Judge fully directed the jury as to the defence case, and gave the appropriate warnings in accordance with R v Murray (1987) 11 NSWLR 12, Robinson v The Queen (1999) 197 CLR 162 and R v Markuleski (2001) 52 NSWLR 82.
6. Upon a review of the whole of the evidence, the jury should have had a reasonable doubt that the appellant, when 10 years old, actually understood that what he was doing with VW in respect of the charge of indecent assault was seriously wrong in the sense that it attracted criminal responsibility. The evidence is not capable of rebutting the presumption of doli incapax and the verdict of guilty on Count 1 cannot stand.
7. Concerning the charge of persistent sexual exploitation, there is no means by which any alleged act, let alone the minimum two acts, could be identified and agreed upon by the jurors. The verdict of guilty on Count 3 cannot stand.
8. The verdicts on Counts 2, 4 and 5 are not unreasonable.
9. Judgment of acquittal is entered on Counts 1 and 3. The appeal is dismissed in relation to Counts 2, 4 and 5.
Per Sulan and Stanley JJ:
10. The offence of persistent sexual exploitation of a child requires proof that, over a period of not less than three days, a defendant committed more than one act of sexual exploitation. It is settled law in South Australia that, in order to establish the offence, the jury must be unanimously, or by statutory majority of 10 or more jurors, agreed on the same two or more acts. This can produce the perverse paradox that the more extensive the sexual exploitation of a child, the more difficult it can be proving the offence.
11. The provision, as it exists in South Australia, does not reflect the intention of the legislature, as indicated in the Second Reading Speech. If it is the intention of the legislature to create an offence of persistent sexual exploitation involving the maintenance of a sexual relationship with a child, then consideration should be given to amending the provision.
Criminal Law Consolidation Act 1935 ss 50, 278; Evidence Act 1929 ss 34M, 34P, 34R; Juvenile Courts Act 1971 (SA); Criminal Code 1899 (Qld) s 229B, referred to.
C v Director of Public Prosecutions [1996] 1 AC 1; KBT v The Queen (1997) 191 CLR 417; R v Little [2015] SASCFC 118; The Queen v M (1977) 16 SASR 589; The Queen v M, BJ (2011) 110 SASR 1; R v Maiolo (No 3) [2014] SASCFC 89; R v Markuleski (2001) 52 NSWLR 82; R v Murray (1987) 11 NSWLR 12; Robinson v The Queen (1999) 197 CLR 162; The Queen v S [1999] 2 Qd R 89; R v Whitty (1993) 66 A Crim R 462, discussed.
BBH v The Queen (2012) 245 CLR 499; B v R (1958) 44 Cr App R 1; R v C, CA [2013] SASCFC 137; De Jesus v The Queen (1986) 61 ALJR; 68 ALR 1; HML v The Queen (2008) 235 CLR 334; IPH v Chief Constable of South Wales [1987] Crim LR 42; KRM v The Queen (2001) 206 CLR 221; M v The Queen (1994) 181 CLR 487; R v Maiolo (No 2) (2013) 117 SASR 1; MFA v The Queen (2002) 213 CLR 606; Nguyen v The Queen (2010) 85 ALJR 8; 271 ALR 493; R v Nieterink (1999) 76 SASR 56; Roach v The Queen (2011) 242 CLR 610; SKA v The Queen (2011) 243 CLR 400; Sutton v The Queen (1984) 152 CLR 528, considered.
R v JOHNSON
[2015] SASCFC 170Criminal Court of Appeal: Sulan, Peek and Stanley JJ
SULAN AND STANLEY JJ. We agree with the reasons of Peek J and with the orders that he proposes.
There is a matter upon which we consider it desirable to comment. The offence of persistent exploitation of a child requires proof that, over a period of not less than three days, a defendant committed more than one act of sexual exploitation. The section has been the subject of judicial interpretation. It is now settled law in South Australia that, in order to establish the offence, the jury must be unanimously, or by statutory majority of 10 or more jurors, agreed on the same two or more acts. In order to establish the offence, it is necessary for the prosecution to prove that two or more identifiable acts occurred over not less than three days, and the jury must be agreed upon at least the same two or more acts.[1] If the evidence rises no higher than a general statement such as that given in this case, even though the jury may be satisfied that there occurred numerous acts of sexual exploitation over a number of years, but it is impossible to identify two or more acts so that the conclusion can be reached that the jury, either unanimously or by majority, agreed on the same two or more acts, then the defendant is entitled to an acquittal. As the reasons of Peek J demonstrate, the operation of s 50 of the CLCA can produce the perverse paradox that the more extensive the sexual exploitation of a child, the more difficult it can be proving the offence.
[1] R v M, BJ (2011) 110 SASR 1; R v Little [2015] SASCFC 118.
A similar problem was identified in Queensland. In KBT v The Queen[2] the High Court considered the equivalent Queensland provision, which this Court in R v Little[3] said was the same as s 50 of the CLCA, so far as its constituent elements and the requirement of unanimity is concerned. Prior to 1 July 1997, the Queensland provision provided:
[2] (1997) 191 CLR 417.
[3] [2015] SASCFC 15 at [11].
Maintaining a sexual relationship with a child under 16
229B.(1) Any adult who maintains an unlawful relationship of a sexual nature with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 7 years.
(1A) A person shall not be convicted of the offence defined in subsection (1) unless it is shown that the offender, as an adult, has, during the period in which it is alleged that the offender maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child, other than an offence defined in section 210(1)(e) or (f), on 3 or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions.
The plurality (Brennan CJ, Toohey, Gaudron and Gummow JJ) observed:[4]
The offence created by s 229B(1) is described in that sub-section in terms of a course of conduct and, to that extent, may be compared with offences like trafficking in drugs or keeping a disorderly house. In the case of each of those latter offences, the actus reus is the course of conduct which the offence describes. However, an examination of sub-s (1A) makes it plain that that is not the case with the offence created by s 229B(1). Rather, it is clear from the terms of sub-s (1A) that the actus reus of that offence is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions. Once it is appreciated that the actus reus of the offence is as specified in sub-s (1A) rather than maintaining an unlawful sexual relationship, it follows, as was held by the Court of Appeal, that a person cannot be convicted under s 229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts.
Before turning to the precise issue in this appeal, it is convenient to note one other matter that arises out of the identification of the actus reus of the offence created by s 229B(1). As already indicated, sub-s (1A) of s 229B requires the doing of “an act [which] constitute[s] an offence of a sexual nature ... on 3 or more occasions”, albeit that it does not require proof of “the dates or the exact circumstances of [the] occasions” on which the acts were committed. The sub-section’s dispensation with respect to proof applies only to the dates and circumstances relating to the occasions on which the acts were committed. It does not detract from the need to prove the actual commission of acts which constitute offences of a sexual nature.
It should be noted that, quite apart from any question of fairness to the accused, evidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour is not necessarily evidence of the doing of “an act defined to constitute an offence of a sexual nature ... on 3 or more occasions” for the purposes of s 229B(1A). Moreover, if the prosecution evidence in support of a charge under s 229B(1) is simply evidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour, it is difficult to see that a jury could ever be satisfied as to the commission of the same three sexual acts as required by s 229B(1A).
[4] KBT v The Queen (1997) 191 CLR 417 at 422-3.
In The Queen v S[5] the Queensland Court of Appeal (Pincus JA, McPherson JA and Muir J) commented upon the High Court decision in KBT:[6]
The case KBT v. The Queen was one in which, as both this Court and the High Court decided, it was not possible to be sure that, in returning a verdict of guilty under s.229B(1), all members of the jury had been satisfied beyond reasonable doubt that precisely the same three acts had been committed. The trial judge in that case as in this, had failed to direct on the need for unanimity about the same three acts. There, however, the evidence disclosed six different broad categories of sexual acts, varying in character, place of commission and times of day, committed repeatedly but discontinuously during a period of approximately 19 months. The present instance is one in which, having regard to the form in which the evidence was given, it is not possible to say that the jury might perhaps not have agreed or been satisfied about the same three or more identical acts. The complainant testified at the trial that the appellant’s conduct of which she gave evidence had taken place every night during the period from their return to Townsville in January 1992 until June or July of that year. A direction of the kind required in KBT v. The Queen would therefore have been meaningless, and consequently potentially confusing, to the jury in the present case.
...
... If s.229B(1) is to perform its function in most future prosecutions of this kind, legislative attention is needed to ensure that s.229B(1A), or as it now is s.229B(2), operates only as an evidentiary aid or exclusion and is not expressed in a form capable of being regarded as serving to define the offence or its actus reus under s.229B(1).
[5] [1999] 2 Qd R 89.
[6] [1999] 2 Qd R 89 at 92 and 94.
In 2002, the Queensland Parliament amended the Code. The provision the subject of the High Court determination in KBT was amended as follows:
229B Maintaining a sexual relationship with a child
(1) Any adult who maintains an unlawful sexual relationship with a child under the prescribed age commits a crime.
Maximum penalty – life imprisonment.
(2) An unlawful sexual relationship is a relationship that involves more than 1 unlawful sexual act over any period.
(3) For an adult to be convicted of the offence of maintaining an unlawful sexual relationship with a child, all the members of the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sexual acts existed.
(4) However, in relation to the unlawful sexual acts involved in an unlawful sexual relationship –
(a)the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and
(b)the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence; and
(c)all the members of the jury are not required to be satisfied about the same unlawful sexual acts.
...
In introducing the amendment in Queensland, the explanatory memorandum identified the reason for the amendment in the following terms:[7]
Clause 18 inserts a new section 229B (Maintaining a sexual relationship with a child), replacing the present provision.
The redrafted section restores the intended focus of the offence on an unlawful sexual relationship or course of conduct. The existing offence, as interpreted by the High Court, was criticised by the Queensland Court of Appeal in R v S [1999] 2 Qd R 89, as failing to meet the purpose for which it was enacted, that is, to make the “relationship” an offence, rather than the separate acts comprising it.
The requirement to prove three acts of a sexual nature has been removed, and instead the offence is established by proof of the relationship (that is, a course of conduct). The jury are not required to be agreed as to the commission of any particular act of which evidence might be given, but rather, be satisfied on the totality of the evidence that the accused maintained a relationship (that is, engaged in a course of conduct) of a sexual nature with the child over the relevant period.
An unlawful sexual relationship comprises one or more unlawful sexual acts, that would, if sufficiently particularised, constitute a sexual offence, for example, indecent dealing with a child under 16 (subsection (2) and the definitions of “offences of a sexual nature” and “unlawful sexual act” in subsection (10)).
Subsection (3) provides that for an adult to be convicted of the offence, the jury must be satisfied beyond a reasonable doubt that the evidence establishes that an unlawful sexual relationship existed. This ensures that the offence is defined in terms of a relationship, not in terms of the separate acts comprising it.
As well, subsection (4) expressly provide that the prosecution need not particularise nor must the jury be satisfied of any individual unlawful sexual act; and that the members of the jury do not have to agree about the same unlawful sexual acts. Subsection (4) ensures that the relationship does not have to be established by proof of individual acts capable of amounting to individual offences.
Subsection (5) retains the existing defence where the child is over 12, for the adult to prove that he or she believed on reasonable grounds that the child was at least the prescribed age (16 or 18).
[Underlining is ours.]
[7] Explanatory Notes, Sexual Offences (Protection of Children) Amendment Bill 2002 (Qld) at 13-14.
The amendment sought to ensure that the difficulties identified in KBT of the jury having to agree on the same three acts was overcome.
It is recognised that a difficulty faced in cases of continuous multiple sexual abuse is that, often, the complainant cannot identify any act with any degree of specificity, such as in this case. If a complainant can be specific, then the conduct itself can be the subject of a separate charge.
When introducing the South Australian provision, which came into force on 23 November 2008, the then Attorney-General in the Second Reading Speech said:[8]
The offence of persistent sexual abuse is rarely charged because it fails to overcome the very problem of particularity that it tried to remedy. Children are still unable to identify precisely each separate incident of abuse that is required to prove the offence.
The new offence has the same aim as the current offence to punish the persistent sexual abuse of a child, and not just the sexual acts that can be identified with enough particularity to be charged as specific offences in themselves.
Often, children who have subjected [sic] to long-term sexual abuse can remember in some detail when the abuse started and when it ended, so that the first and last alleged acts are often capable of being charged as specific offences, but can’t remember the detail of when and where each of the many intervening acts occurred enough to distinguish each one from the other. That is why all these acts cannot be charged as specific offences, and why, when convicted of only the acts that can be so charged, the law fails to recognise or punish the full extent of the abuse. The current offence aims to overcome this but has not worked.
The Bill proposes to replace the current offence with a new one of persistent sexual exploitation of a child. The new offence focuses on acts of sexual exploitation that comprise a course of conduct (persistent sexual exploitation) rather than a series of separately particularised offences.
Under the Bill, an act of sexual exploitation is an act of a kind that could, if it were able to be properly particularised, be the subject of a charge of a specific sexual offence. The kinds of sexual offences to which these acts should approximate are rape, unlawful sexual intercourse, indecent assault, acts of gross indecency, procuring sexual intercourse, procuring a child to commit an indecent act, sexual servitude and related offences, incest and bestiality, including an attempt to commit any of these offences or an assault with intent to commit any of them.
[8] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1473-1474 (Michael Atkinson, Attorney-General).
The Act, as interpreted in Little[9] and M, BJ,[10] requires the jury to be satisfied of the same two or more acts. Unlike the Queensland provision, which has overcome the problem identified in KBT and the South Australian cases, the provision, as it exists in South Australia, in our view, does not reflect the intention of the legislature, as indicated in the Second Reaching Speech.
[9] [2015] SASCFC 118.
[10] (2011) 110 SASR 1.
We consider that if it is the intention of the legislature to create an offence of persistent sexual exploitation involving the maintenance of a sexual relationship with a child, then consideration should be given to amending s 50 along similar lines to the Queensland provision.
PEEK J.
Appeal against convictions by a jury.
Introduction and overview
The appellant was convicted by a jury of the five counts on the Information which appears as follows:
INFORMATION
For arraignment on 26 June 2014
Information of the Director of Public Prosecutions
Ian Douglas Johnson is charged with the following offences:
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ian Douglas Johnson between the 31st day of December 1964 and the 1st day of January 1966 at Spence, indecently assaulted VW.
Second Count
Statement of Offence
Carnal Knowledge. (Section 55(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ian Douglas Johnson between the 1st day of August 1970 and the 19th day of September 1970 at Lucindale, unlawfully and carnally knew VW, a female person under the age of 17 years.
Third Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ian Douglas Johnson between the 9th day of June 1971 and the 11th day of April 1973 at Spence, over a period of not less than three days, committed more than one act of sexual exploitation of VW, a person under the age of 17 years, by inserting his penis into her vagina.
Fourth Count
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ian Douglas Johnson between the 31st December 1981 and the 13th day of April 1982 at Naracoorte, engaged in sexual intercourse with VW by inserting his penis into her vagina, without her consent and knowing that she did not consent or being recklessly indifferent to the fact that she was not consenting.
Fifth Count
Statement of Offence
Rape. (Ibid)
Particulars of Offence
Ian Douglas Johnson between the 30th day of November 1983 and the 1st day of January 1984 at Naracoorte, engaged in sexual intercourse with VW by inserting his penis into her vagina, without her consent and knowing that she did not consent or being recklessly indifferent to the fact that she was not consenting.
The complainant, VW, was born on 12 April 1956. VW first gave a statement to police concerning the matters before the Court on 27 May 2008 when she was 52 years old. She was 58 years old at the time of the trial in 2015.
At trial, VW gave evidence of the four specific incidents comprising counts 1, 2, 4 and 5. As to count 3, she gave very little detail beyond the general allegation that there were many acts of rape by way of vaginal sexual intercourse over about a two year period. VW also stated that there were a number of other “uncharged acts” of assault, both non-sexual and sexual throughout the period from prior to the incident the subject of count 1 (the shed incident) up to the time of the incident the subject of count 5.
The grounds of appeal
The appellant’s amended grounds of appeal are as follows:
1.The applicant’s trial miscarried as a result of count one being tried with other charges on the Information.
Particulars
1.1 Count one was not properly joined in accordance with the provisions of s 278(1) of the Criminal Law Consolidation Act.
1.2 Count one should have been subject to an order for a separate trial in accordance with the provisions of s 278(2) of the Criminal Law Consolidation Act.
1.3 Count one was not cross admissible on the remaining counts, nor were the remaining counts admissible on count one.
1.4 Evidence led in relation to count one upon the consideration of the question of doli incapax was prejudicial to the applicant and involved evidentiary considerations that were irrelevant and inadmissible as to the other counts.
1.5 The order made pursuant to s 17 of the Young Offenders Act was made in error with the result that count one was impermissibly tried with other counts in the District Court.
1.6 Count three was not cross admissible as specific findings of fact could not be made upon the evidence led on that court so as to be permissibly cross admissible.
1A.The charge of persistent sexual exploitation (count three) was duplicitous and ought to have been quashed.
1B.Alternatively, the Learned Judge erred as a matter of law in failing to direct the jury in relation to count three that it was necessary for unanimity in relation to the same two or more acts of sexual exploitation over more than three days constituting an element of the offence.
2. The applicant’s trial miscarried as a result of all counts being tried together.
Particulars
2.1 The charges were not properly joined in accordance with the provisions of s 278(1) of the Criminal Law Consolidation Act.
2.2 There should have been an order for a separate trials in accordance with the provisions of s 278(2) of the Criminal Law Consolidation Act.
3. Withdrawn.
4.The applicant’s trial miscarried as a consequence of the failure of the Learned Trial Judge to adequately identify evidence of discreditable conduct admitted pursuant to s 34P of the Evidence Act 1929 (SA) and provide directions to the jury regarding the purpose for which the discreditable conduct may and may not be used pursuant to s 34R of the Evidence Act 1929 (SA).
5.The applicant’s trial miscarried as a result of the impermissible admission of evidence given by the complainant contrary to s 34M of the Evidence Act 1929 (SA), namely to Angel and others.
Particulars
5.1 The evidence did not properly fall within the definition of complaint and should not have been admitted.
5.2 The evidence was not capable of, and/or sufficiently related to a particular count.
5.3 The Learned Trial Judge failed to adequately direct the jury to the permissible and impermissible use of the evidence.
6.The applicant’s trial miscarried as a result of the failure of the Learned Trial Judge to adequately direct the jury as to the significant forensic disadvantage that existed in the circumstances of the case and failed to give adequate directions to the jury explaining the nature of the forensic disadvantage and how that should be taken into account when scrutinising the evidence on each count.
7.The applicant’s trial miscarried as a consequence of the Learned Trial Judge failing to adequately put the defence case.
8.The Learned Trial Judge failed to adequately direct the jury in relation to the presumption in favour of doli incapax arising on count one.
9.The verdicts are unreasonable or cannot be supported having regard to the evidence.
Particulars
9.1 The effluxion of time, some 50 years from the date of count one, creates an inherent unreliability in the recollection of witnesses.
9.2 In the circumstances of this case, the forensic disadvantage suffered by the applicant is such as to affect the reasonableness of the verdicts.
9.3 The paucity of evidence before the jury on count three was such that a finding of guilt beyond reasonable doubt cannot be sustained. The evidence relied upon consists of a general allegation that does not meet what is required by s 50 of the Criminal Law Consolidation Act.
Grounds 1 and 2 of appeal: Joinder and severance
Section 278, Criminal Law Consolidation Act 1935 provides:
278—Joinder of charges
(1)Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2)Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
(2a)Despite subsection (2) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a) subject to paragraph (b), those counts are to be tried together;
(b) the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim.
(3)This section does not affect any other provision of this Act or any other Act permitting more than 1 charge to be joined in the same information.
(4)In this section—
sexual offence means—
(a) an offence against section 48, 48A, 49, 50, 56, 58, 63B, 68 or 72; or
(b) an attempt to commit, or an assault with intent to commit, any of those offences; or
(c) a substantially similar offence against a corresponding previous enactment; or
(d) an offence against the law of the Commonwealth, another State or a Territory corresponding to an offence referred to in a preceding paragraph.
As to legal joinder, there is clear legal and factual similarity between each count and the alleged victim of each count is the same person. The appellant submits that the time between various of the counts precludes there being a “series” here, but cites no supporting authority. I reject that submission. The charges “form, or are a part of, a series of offences of the same or a similar character” and were properly joined on the same Information pursuant to s 278 of the Criminal Law Consolidation Act 1935.
As to discretionary severance, the charges all relate to alleged sexual offences committed by the same person against the same alleged victim over a long period of time. The evidence on counts 2 to 5 was clearly cross-admissible on each of those counts. The appellant was aged at least 16 years ten months at the time of count 2 and all counts charged sexual misconduct against the same female complainant. The basis of cross-admissibility in such a case may be found on the basis of the relationship between the two persons (drawing on such cases as R v Nieterink[11] and the High Court decision in Roach v The Queen[12]) or on the basis of “sexual attraction” (drawing on such cases as the High Court decisions in HML v The Queen[13] and BBH v The Queen[14]). These matters are discussed at some length in R v Maiolo (No 2).[15]
[11] (1999) 76 SASR 56.
[12] (2011) 242 CLR 610.
[13] (2008) 235 CLR 334.
[14] (2012) 245 CLR 499.
[15] (2013) 117 SASR 1.
While the shed incident (count 1) was different in that the appellant was then considerably younger, the prosecution case was that the evidence of VW demonstrated that a violent relationship between the appellant and VW had developed even by that time.[16] The evidence relevant to count 1 was admissible on the later counts 2 to 5, but clearly the evidence on counts 2 to 5 was not admissible on the earlier count 1.
[16] This being quite irrespective of whether the appellant was or was not doli incapax and irrespective to what extent the relationship was a sexual one by the time of the shed incident.
However, this departure from full cross-admissibility does not present a difficulty concerning severance for the following reasons. First, the cases which hold that severance should usually occur in sexual cases (such as Sutton v The Queen[17] and De Jesus v The Queen[18]) address the situation of multiple complainants and not that of a number of charges against an accused in relation to the same complainant. In the latter situation, it may sometimes be the case that the appropriate decision on a severance application is that the case should proceed on all charges even if there is less than full cross admissibility on each count.
[17] (1984) 152 CLR 528.
[18] (1986) 61 ALJR 1; 68 ALR 1.
Second, in this case the Judge gave full directions to the jury concerning the fact that the evidence pertaining to counts 2 to 5 was not to be used on count 1 (although the evidence on count 1 could be used on the other counts).
Third, in any event, the position becomes moot in this case because the appeal in relation to count 1 is to be allowed for quite different reasons, thus rendering the question of joinder and severance otiose in relation to the fate of count 1.
Particulars 1.5 and 1.6 of ground 1 of appeal
As to particular 1.5 of ground 1 of appeal above, the only passage that may possibly refer to this matter in the appellant’s outline of argument is restricted to: “The offending committed as a child ought not to have been heard with the counts relating to the alleged offending as an adult.” This matter was not developed in oral argument. I see no substance in the assertion at particular 1.5.
As to particular 1.6 of ground 1 of appeal, it is determined below that the conviction on count 3 be set aside on the basis that the evidence relied upon is too sparse to found a conviction of the offence as charged in count 3. I indicate that this does not have the consequence that the fact of joinder of count 3 has led to a miscarriage of justice having occurred in relation to the other counts upon which the appellant has been convicted. This matter is further addressed below.
Grounds 1 and 2 of appeal are rejected.
Ground 4 of appeal: Discreditable conduct
Part 3 Division 3 of the Evidence Act 1929 provides:
34O—Application of Division
(1)This Division applies to the trial of a charge of an offence and prevails over any relevant common law rule of admissibility of evidence to the extent of any inconsistency.
(2)This Division does not apply to—
(a) evidence adduced pursuant to section 18; or
(b) evidence of the character, reputation, conduct or disposition of a person as a fact in issue.
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose (impermissible use); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)The court may, if it thinks fit, dispense with the requirement in subsection (4).
34Q—Use of evidence for other purposes
Evidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use.
34R—Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
34S—Certain matters excluded from consideration of admissibility
Evidence may not be excluded under this Division if the only grounds for excluding the evidence would be either (or both) of the following:
(a) there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant;
(b) the evidence may be the result of collusion or concoction.
34T—Severance
Where—
(a) 2 or more defendants are charged in the same information; and
(b) a party proposes to adduce discreditable conduct evidence; and
(c) a defendant (the applicant) applies prior to or during a trial for a separate trial or for a charge to be severed from the information,
the court, when considering the application, must give strong weight to a real possibility that the applicant may be prejudiced by—
(d) evidence proposed to be adduced by the prosecutor against another defendant which is not admissible against the applicant; or
(e) evidence proposed to be adduced by another defendant which is not admissible against the applicant; or
(f) the applicant's inability to adduce with respect to another defendant relevant evidence that would be admissible but for the operation of section 34P.
The appellant’s submissions as to ground of appeal 4
The portion of the appellant’s outline of argument relevant to this ground of appeal is as follows:
Ground 4 – Discreditable Conduct
71.The Learned Trial Judge directed the jury that the evidence of uncharged acts was available to demonstrate context, confidence to be gained from the lack of a complaint, relationship and subjugation without articulating a proper use and without relating the discreditable conduct to a particular count or counts, other than count one.
72.The proposed use of the uncharged acts as evidence to show the emboldening the Appellant as a consequence of there being no complaint seemed at odds with the complainant’s evidence that regular complaints were made to her mother, including in relation to the uncharged acts relied upon.
73.One of the uncharged acts alleged related to an incident said to have occurred when the complainant and Appellant were taking a bath when aged 3 and 6 years respectively.[19] This alleged act was incapable of being probative of anything. It should not have been left to the jury. Given that it was, the jury should have been directed in strong terms as to the lack of probative value and prejudicial effect.
74.The Learned Trial Judge failed to adequately direct the jury as to the permissible and impermissible uses of the discreditable conduct evidence admitted under s 34P of the Evidence Act as was required by s 34R of the Evidence Act. In particular, the directions failed to identify how the discreditable conduct was related to a particular count.[20] The directions were insufficient in terms of the directions that ought to have been given, namely:
a. make an assessment of the discreditable conduct in relation to each count;
b. identify the permissible purpose in relation to each count, and each count.[21]
[19] T27.
[20] R v Maiolo (No 2) (2013) 117 SASR 1; R v C, CA [2013] SASCFC 137.
[21] R v Maiolo (No 2) (2013) 117 SASR 1; R v C, CA [2013] SASCFC 137.
As to paragraph 71 of the appellant’s outline, contrary to the appellant’s assertion, the Judge did articulate for the jury proper uses of the uncharged acts and clearly related those uses to all of the counts (and not just to count 1 as asserted by the appellant). His Honour also very clearly warned against impermissible uses. His Honour initially directed:[22]
In this case, as touched upon by Mr Wickens and also by Mr Phillips, you have also heard evidence of alleged sexual acts said to have been committed by the accused against the complainant and which are not the subject of charges. In addition, you heard evidence of alleged physical violence said to have been inflicted by the accused upon the complainant which are also not the subject of charges. I have touched upon some of them already.
I will direct you tomorrow as to how you may use that evidence of uncharged acts. If you are satisfied by the prosecution that such an act or acts had actually occurred, then you must not misuse such evidence. You must never reason ‘Well, I think he might have committed that uncharged act, therefore he is the sort of person who would have been guilty of the charged acts’. Ladies and Gentlemen you must never reason that way. It is entirely improper to reason that way.
[22] Summing Up at page 8.
His Honour later proceeds to give full directions thus:[23]
[23] Summing Up at page 54.
It is a fundamental legal principle, as I have already mentioned, that the accused should be tried on evidence relating to the offence charged against him and not on evidence relating to things that he has done on another charged or uncharged occasion or occasions.
A jury is not permitted to reason that if the accused had committed another crime or engaged in some form of misconduct not covered by the particular charge you are considering, that he is the sort of person who would have committed or is likely to have committed a charged offence. I have already directed you and I repeat that such reasoning is referred to as prohibited or impermissible propensity reasoning. You must never reason that way. It is entirely improper to jump from the proposition that if the accused has committed one offence or engaged in discreditable conduct then he is the kind of person who is likely to have committed some or all of the offences with which he is charged. I am sure you will not do that, it is common sense. You must not jump to such a conclusion.
In addition to the evidence led by the prosecution in relation to the specific charges on the information, the prosecution led from the complainant evidence of other alleged acts of misconduct, sexual misconduct and alleged acts of physical violence. I refer to them all under the heading of ‘uncharged acts’. It really is vital that you understand the proper use that can be made of the evidence of uncharged acts should you be satisfied beyond reasonable doubt that the accused performed those acts or any of them.
The permissible and impermissible use to be made of uncharged acts of alleged sexual misconduct, I deal with first.
The complainant gave evidence of the alleged indecent conduct by the accused in the bath at age three. I have already discussed that with you, you will decide whether that could seriously be regarded as being sexual misconduct or not. Just think about that. He was aged about 6 – she was aged about 3.
Secondly, in the implement shed at age four or thereabouts or five, between the ages of five and 10 in her bedroom on a weekly basis and irregularly after the complainant was aged 18 years.
If you were satisfied that the accused committed any of the uncharged acts alleged by the complainant it would be wrong, as I say, for you to reason that he is the sort of person likely to have committed the charged offences. That is the impermissible propensity reasoning to which I have referred. In other words, do not reason that the accused is likely to be guilty of the charged offences simply because he committed one or more uncharged acts. The evidence of the uncharged acts is relevant for the following limited purposes.
This is as to the sexual uncharged acts. Firstly, the evidence relating to the uncharged acts of sexual misconduct may be used by you to understand the context in which the charged offences are alleged to have taken place.
On that, I have already dealt with this in relation to count No.1. You see, if, in fact, the accused had committed any of these uncharged acts, the implement shed, the alleged sexual assaults between ages five and nine rather than five and 10, then that would also be relevant to the question as to whether he knew right from wrong for the purpose of that fourth element of count 1. In addition it is relevant to place their relationship in context. Count 1 did not come out of the blue, so to speak.
Secondly, the evidence relating to the uncharged sexual acts may be relevant to explain the confidence the accused might have had in performing the charged offences, a confidence gained from her failure to complain about the alleged uncharged acts. Because she had not complained about them, he was able to continue on. That is one of the suggestions put forward by the prosecution.
Thirdly, the ongoing nature of the accused’s relationship with the complainant as asserted by her on the prosecution case might explain why she did not complain about the accused’s alleged sexual misconduct until much later.
As is plain, I hope I made it plain, the alleged uncharged sexual acts could only be relevant to a charged offence if the particular uncharged sexual act had occurred prior to the charged act. Any subsequent uncharged sexual conduct which occurred after a charged act must not be considered by you in respect of an earlier charged count.
Just think about it, it is pretty obvious when you think about it. When you consider the alleged indecent assault charge in count 1, it cannot be of any relevance to that charge that other events occurred after count 1. Any events or uncharged acts which occurred after count 1 for instance cannot be relevant to the charge in count 1.
I turn to the alleged violence. The complainant has alleged acts of violence allegedly perpetrated on her by the accused. She asserted acts involving the accused grabbing her on the throat, at one of the dinner parties attended by Lois. Now Lois denied that. After the Lucindale final; that he threatened to kill her on her 18th birthday, punched her in the face and bashed her head on the floor choking her on an occasion allegedly witnessed by Kelly Wilby in 1982, that witness having now died.
The prosecution did not and could not have led that evidence to suggest that he is the sort of person who would have committed the charged acts, that would be improper propensity reasoning. It is before you for very specific purposes and only those purposes; one, to show an alleged pattern of possessiveness accompanied by aggression and domination by the accused. Secondly, to explain the complainant’s submission to the accused’s alleged conduct. Thirdly, to explain why the accused did what he allegedly did on the occasion of a charged act that you are considering and how the complainant reacted to it.
As is plain the alleged acts of violence could only be relevant to a charged act if the particular act or acts of violence had occurred prior to the charged act. Any alleged act of violence after an alleged charged event cannot be considered by you in respect to the earlier event. The evidence of the uncharged acts presented by the prosecution generally is relevant for the limited purposes that I have mentioned.
I emphasise three things; firstly, you must not take into account any uncharged act or acts unless you are satisfied beyond reasonable doubt that the accused committed those acts or acts. Secondly, you should not reason that if you were satisfied that the accused committed the uncharged acts or any of them that he is the sort of person to be likely to commit the charged offences. Thirdly, you must not convict the accused of any charged offence unless you are satisfied of his guilt beyond reasonable doubt of that charge. Proof that the accused committed one or more of the uncharged acts or even a charged act is not a substitute for proof that he committed the particular charged offence that you are considering.
I repeat, if you are not satisfied that the uncharged act that you are considering occurred you cannot use it against the accused. You might however consider it from the accused’s point of view. Because if you do not accept the truth of a complainant’s evidence as to an uncharged act you may take that into account when you assess her credibility and reliability as a witness in respect of the charged acts. If you do not accept her on those occasions you would ask yourself how does that impact on her evidence as to the charged acts. (Emphasis added)
As to paragraph 72 of the appellant’s outline, the use of the uncharged acts as evidence to show the emboldening of the appellant was not at odds with the complainant’s evidence that she made complaint to her mother. It would have been entirely apparent to the appellant that neither of his parents were taking steps to punish him or deter him from such conduct.
As to paragraph 73 of the appellant’s outline, the incident alleged to have occurred when VW and appellant were taking a bath when aged three and six years respectively, was led in relation to the matter of doli incapax on count 1 and was not suggested to have any relevance to counts 2 to 5. The Judge in fact specifically dealt with this matter in the summing up and directed:[24]
Mr Phillips directed your attention of one alleged incident in the bath. It is a matter for you, but you might think a six-year-old and three-year-old in the bath have no idea about sexual matters. That is a matter for you.
[24] Summing Up at page 42.
And later his Honour directed:[25]
The complainant gave evidence of the alleged indecent conduct by the accused in the bath at age three. I have already discussed that with you, you will decide whether that could seriously be regarded as being sexual misconduct or not. Just think about that. He was aged about 6 – she was aged about 3.
[25] Summing Up at page 55.
As to paragraph 74 of the appellant’s outline, this conflates the separate questions of directions to the jury and the anterior question of admissibility of evidence. The complaint as to s 34R of the Evidence Act 1929 does relate to jury directions, but it merely reiterates the appellant’s complaint at paragraph 71 of the appellant’s outline, which is dealt with above. However, the latter part of paragraph 74 is plainly wrong in suggesting that the Judge should have directed the jury in terms of a process described in paragraphs (a), (b) and (c) which culminates in the making of a “an evaluation of the probative value and prejudicial effect in relation to each count”. That evaluation is a matter for the Judge to address when determining admissibility and ground 4 of appeal is concerned solely with jury directions, not with admissibility of evidence.
One should also note that the Judge gave a strong separate consideration direction which arguably was unduly favourable to the appellant (but I in no way criticise his Honour on that score). His Honour directed: [26]
You know that the accused has been charged with five counts on the information. Each of those five counts charges a separate offence. All five have been heard together by you at the same time as a matter of convenience. You must not forget the fact that they are separate counts. You must consider each of them separately on the evidence called on that count. You see an example is in count 1. In addition to the evidence of the complainant and the accused, evidence was called by the prosecution from the Flavel brothers.
Their evidence was restricted to count 1 on the Information. As far as the other counts are concerned, the prosecution case depends entirely upon the honesty and reliability of the evidence of the complainant on each of those counts. The five counts do not necessarily stand or fall together. You must, as I say, consider each count separately and only by reference to the evidence relating to that count.
[26] Summing Up at page 7.
Ground 4 of appeal is rejected.
Ground 5 of appeal: Complaint evidence
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.
By an application for directions filed on 17 October 2014 and by an application pursuant to District Court Criminal Rules 49(1)(e) and (h) filed on 27 October 2014, then counsel for the appellant (Mr Graham) sought numerous orders, including for severance, cross-examination of several witnesses on a Basha inquiry, permanent stays of counts 1 and 3 of the Information, exclusion of evidence of discreditable conduct and exclusion of various items of evidence for numerous asserted reasons (the applications). Amongst the orders sought were that the Court exclude evidence of complaint by VW to be given by four witnesses James Mills, Rodney Angel, Coral Rodder and RW, which were the subject of paragraphs 11 and 12 of the second application.
The applications initially came on before Judge Boylan on 22 October 2014 when, after some discussion, his Honour adjourned the application until 31 October 2014 for full argument. On 31 October 2014, Judge Soulio heard extensive argument on the applications from counsel for the appellant and the prosecution. Towards the end of the morning session, counsel for the prosecution indicated that there was some agreement concerning various aspects of the applications. As to paragraphs 11 and 12 of the second application, the following dialogue occurred involving counsel for the prosecution (Ms Zuckerman), counsel for the appellant (Mr Graham) and Judge Soulio:
MS ZUCKERMAN … In relation to ground 11, I can indicate that we won’t be leading evidence from the witness Coral Rudder, but in relation to the witnesses James Mills and Rodney Angel there is the potential that some of their evidence would amount to initial complaint evidence. It is a little bit difficult at this point, given the trial is now months away and these witnesses haven’t yet been proofed, to pin a definite position down about that. I have had a discussion with my friend and we think it might be appropriate that it also be left for the trial. If there has to be an argument about it, it won’t take a very long time.
HIS HONOUR I just wonder, is the same position to be taken to para 12 of the application?
MS ZUCKERMAN No, in relation to 12, I can see that we won’t lead that evidence from that witness. In relation to James Mills and Rodney Angel, they both state in their declarations that some time in the 1980’s they had conversations with the complainant about various things she says happened to her in some detail. The complainant has just recently, in her most recent declaration, tried to set out, as best she can, who she has told, what she has told in chronological order.
HIS HONOUR It’s a very difficult area, I think, in relation to complaint evidence of historical matters where there are different complaints over the years, it doesn’t seem to fit within the section at all.
MS ZUCKERMAN Yes, it is difficult and depending on what the defence case is, it may have other uses apart from complaint evidence, for example to rebut recent invention. It’s a little bit difficult, and I can indicate I’m not going to be the trial prosecutor, to make those sort of forensic decisions at this point in time.
HIS HONOUR Yes, I suppose given what appears to be a suggestion that there is a motive on the part of the complainant in relation to financial issues, which I assume have arisen much more recently, that such evidence might be admissible in rebuttal.
MS ZUCKERMAN Yes, so perhaps if I could indicate that our position in relation to James Mills and Rodney Angel is reserved at this point and if any argument needs to be had, I can indicate it would take very little time before the trial.
MR GRAHAM I don’t press your Honour to decide any of those issues in respect of complaint evidence.
MS ZUCKERMAN I don’t press your Honour to decide any of those issues in respect of complaint evidence.
MS ZUCKERMAN I hope that narrows the issues.
HIS HONOUR It does. … (Emphasis added)
The matter of recent complaint was left in that state and not further argued. The argument continued in relation to various matters for the rest of the day. The case was subsequently set down for trial to commence on 16 March 2015.
On 4 March 2015, a directions hearing was held by the trial Judge and the following dialogue occurred:
HIS HONOUR The matter is called on because there had been a suggestion there may be a difficulty with the trial which is listed for two weeks to commence on the 16th of this month. Are you able to tell us where things stand at the moment?
MR WICKENS From my perspective there is no issue with that.
HIS HONOUR Will you be counsel?
MR WICKENS I will, yes.
HIS HONOUR Are you able to let me know, I know I am grateful for you taking the matter over at short notice, do you know whether there will be voir dire matters at this stage?
MR WICKENS My reading of the file suggests that Judge Soulio ruled on a lot of the pre-trial issues prior to the matter coming to the circuit so there is a ruling I think it is from around October, November, last year, the application for exclusion of some evidence was heard by his Honour. Most of it was agreed between the defence and prosecution and I think there is one issue left for the trial Judge.
HIS HONOUR That was the question of identification I think. In any event, as far as you are presently aware, there is no obstacle to the matter proceeding on the 16th?
MR WICKENS No objection to that.
HIS HONOUR Any further need for anything?
MS RICHARDSON No. (Emphasis added)
The trial came on for hearing at Mount Gambier circuit 17 March 2015. The trial commenced without any pre-trial proceedings and was part way through the examination of the first witness when it was aborted due to a problem with a juror, of no present relevance (the aborted trial). The present trial commenced the following day and again proceeded without any pre-trial proceedings.
The prosecutor led a number of complaints by VW to a number of people concerning her sexual abuse without any objection by Mr Wickens.
During, the course of the continuing examination-in-chief of VW, the following passage appears:
QI will stop you there. Did you see a doctor or seek any medical attention on that occasion?
AYeah, I did. I went and saw Dr Vithiananthan. His name’s Dr Vithi. I didn’t go for a couple of days but my throat was so badly swollen I couldn’t hardly talk. I couldn’t eat, I couldn’t swallow anything, fluids.
QDid you tell Dr Vithiananthan about what had happened?
AYes.
QWhat did you tell him?
AThat -
HIS HONOUR Do we need to know that, do we?
MR PHILLIPS No, I will leave that.
HIS HONOUR Is now a convenient time, do you think, Mr Phillips?
MR PHILLIPS Yes.
JURY AND WITNESS LEAVE COURT 11.46 A.M.
HIS HONOUR I haven’t been interrupting, I know it is important that the full history get out, I am just a bit concerned about the number of conversations she is having with people and the detail in some ways of a self-serving statement. I am just a bit conscious of that. I know from your point of view, Mr Wickens, it is important that the full history gets out. We all need to be very conscious of that.
MR PHILLIPS It is the difficulty I have about being so long ago.
HIS HONOUR I understand that. There has been no objection about it at all, I am always a bit conscious about what might be seen to be self-serving statements.
MR WICKENS Indeed this conversation with the doctor is important on my case because the -
HIS HONOUR There is no problem. I just want to make sure we are all on the same page. (Emphasis added)
Mr Wickens went on to conduct the defence on a basis that becomes sufficiently clear from a few extracts from his cross-examination VW and his closing address.
Q You used to complain about Ian and Neil doing things all the time, didn’t you?
A Sexually?
Q No.
A No.
Q Hurting you, taking your stuff, eating your lollies, those sort of things, didn’t you?
A No.
QYou were a child who complained to your mum whenever one of the boys got something you wanted, didn’t you?
A No.
Q You would vie for your father’s affection with Ian, wouldn’t you?
A No.
QDad would come home from work on the farm, he would come into the house and sit down in the kitchen, Ian would try and go over and give him a hug or sit on his knee as a young boy and you would run in and make a fuss, wouldn’t you?
A No.
Q Because only you were allowed to sit on dad’s knee, isn’t that right?
A No.
Q That’s the type of child you were, weren’t you?
A No.
QYou were the youngest, you were the daddy’s little girl, and no-one else was going to get in the way, were they?
A No, that’s not true.
QThe complaining about Neil and Ian, it wasn’t a rare thing for your mother to hear you, was it?
A I was just told to stay away from them.
Q You were always making up stories, weren’t you?
A No.[28]
[28] T92.
…
QIsn’t it the case that your father wanted to sell one of your horses, and you kicked up such a commotion that Ian lost his horse rather than you losing one of yours?
A No.
QIsn’t that another example of how you got your own way when you just complained?
A That’s completely untrue.[29]
[29] T97.
…
QJust before the break we were talking about what I call the chookyard incident. You know what I’m talking about there?
A Yes.
QWhat I suggest to you is that the precursor to that incident was you and Ian being inside the house and you wanting Ian to give you his pencils from school. What do you say about that?
A No.
QWhat I suggest to you is that you were taking Ian’s pencils and you were breaking them, breaking the lead off of them and the colours off of them, and he was stopping you from doing that, isn’t that right?
A No.
QAnd what he did was he gathered up his pencils and he ran out the back of the house and you chased him out into the backyard, didn’t you?
A No.
QAnd you were so angry at him for not letting you use his pencils that you tried to pick up a post or a stick and hit him with it. Isn’t that right?
A No.
QIan was laughing at you and you were getting angrier and he told you to pick up a strainer post, didn’t he?
A No.
QYou were struggling with that and yelling and screaming and then your mother came along and asked what was going on, didn’t she?
A No.
Q It was then, wasn’t it, that you suggested to your mother that Ian is raping you?
A No.
Q Isn’t that right?
A No, it’s not true.
Q And that was what got you the smack from your mother, wasn’t it?
A No.
QThat was the way things went in your relationship with Ian, wasn’t it; you wanted something that he had, you would just complain long and hard, and eventually you would get it, wouldn’t you?
A No, that’s not correct at all.[30]
[30] T99.
…
A I have told the truth.
Q It wasn’t Ian who was the violent person, was it, it was you?
A Totally incorrect.
QIf you didn’t get your way, you were kicking and scratching and pulling hair, weren’t you.
A No.
Q It was you who was having the tantrums, wasn’t it?
A No.[31]
[31] T109.
…
Q You have made those rapes up, haven’t you?
A No.
QYou have made up all of the allegations of sexual offending by Ian, you’ve made them all up, haven’t you?
A No.
Q It’s all about money, isn’t it?
A It’s never been about money.
Q You didn’t get your inheritance and you are bitter about that, aren’t you?
A No.
QYou know that your parents bought a house in Naracoorte with proceeds from the farm, didn’t they?
A I believe they paid a deposit with money from the farm, yes.
Q And they sold that house eventually, didn’t they?
A The money went into Ian’s account, yes.
Q They purchased another house in Queensland, didn’t they?
A That’s true, with three loans.
QYour suggestion is that every time your mum and dad sold anything, it all went to Ian, is that right?
A That is 100% accurate.[32]
[32] T137.
…
Q You said in evidence of course that you sought medical attention, didn’t you?
A Yes.
QDon’t tell us about the actual words said between you and the doctor, but you consulted Dr Vithi about that?
A Yes.
Q You had some injuries?
A Yes.
Q You told Dr Vithi about what had occurred, didn’t you?
A Yes.
Q You asked Dr Vithi not to make any notes, you say, don’t you?
A Yes.
Q Why did you ask Dr Vithi not to make any notes about this?
AMum and dad had requested that I don’t tell anybody, that I don’t report it, that I don’t do anything about it, they would talk to him, but just - they were scared of him being charged, getting a criminal record all those sorts of things.
QSo you say it was at the behest of your mum and dad that you asked Mr Vithi not to make any notes?
A Yes.
Q You were scared during that assault, weren’t you?
A Yes, I was.
Q You’ve given evidence that you thought he was going to kill you?
A Yes.
Q These assaults were occurring with reasonable frequency, weren’t they?
AReasonably. At that stage he was seeing Kelly, so I was - for a period of 12 months I was relatively safe, not entirely, but relatively.
Q But you didn’t want Dr Vithi to write anything down -
A No.
Q - is that right?
A Yes.[33]
[33] T153.
In his closing address, Mr Wickens said:[34]
And what about the most ridiculous of all: that both Mum and Dad knew about this and did nothing? Mum was told on multiple occasions what Neil and Ian were doing, apparently, and did nothing. And you heard the evidence ‘Don’t bring anything like this up until I’ve passed away’. And Dad heard these complaints, was told by Mum on occasions, apparently, to go and do something about it, and Dad did nothing. Do you accept that Royce and Grace would allow their baby daughter to be subjected to this? Because that’s what VW would have you accept - they knew and they did nothing about it.
[34] T367.
It seems likely from the Judge’s observation above “I know from your point of view, Mr Wickens, it is important that the full history gets out” that there had been some dialogue between Judge and counsel concerning Mr Wickens’ attitude to certain evidence being led without objection. The Court drew this particular passage to the attention of counsel at the hearing of the appeal. Unfortunately, neither counsel had appeared at trial.
Mr Pearce QC considered that the above passage did indicate some other dialogue had taken place and put it in the broader perspective of the fact that the transcript of the pre-trial argument before Judge Soulio does refer to an agreement between prosecution and defence as to what would, and would not, be led by the prosecution on the topic of complaint evidence, with three of the original proposed four witnesses not being called. Mr Pearce submitted that there appeared to be “a forensic decision made at trial to want this evidence in. It’s well understandable why defence would want the evidence in at trial because it’s set up in a sense one of the main prongs of their defence.”
Mrs Shaw QC, for the appellant, did not seek to controvert Mr Pearce’s interpretation or to provide the Court with affidavit material (or any other material) suggesting that the omission of objection at trial was other than a legitimate decision of the part of counsel as to how best to present the case. There was no ground of appeal complaining of incompetency of counsel and no suggestion of that on the appeal.
The position here is similar to that in R v Maiolo (No 3) where a question arose on appeal as to the admissibility of a police interview with the alleged victim of sexual offending (exhibit P5). It was there stated:[35]
[100] … the later police interview was not to be regarded as “information provided by way of elaboration of the initial complaint” but rather as a separate step taken by police as part of an investigation and prosecution of the appellant. …
[101] Exhibit P5 was ostensibly admitted at trial pursuant to s 34M, but if objection had been taken to the admission of exhibit P5, that evidence should have been excluded (either as inadmissible or in the exercise of discretion).
[102] However, Mr Norman SC, senior counsel for the Director of Public Prosecutions, points out that exhibit P5 was admitted by consent and there was no complaint on appeal about its admission. He submits that this is explained by the fact that trial counsel for the appellant (who did not appear on the appeal) actively sought to have the interview admitted (with agreed editing) because (as frankly confirmed by counsel on appeal) he particularly wanted to cross-examine SZ on a number of the statements therein which on his case were inconsistent with the evidence SZ gave at trial. The forensic advantages of trial counsel proceeding in that way were several. A successful cross-examination as to a number of inconsistent statements made by SZ in the police interview would tend to envelop with doubt both the other juxtaposed statements made at the same time by SZ in the interview and in turn her oral evidence at trial. Further, SZ gave a visual demonstration during that interview that trial counsel additionally sought to argue was inconsistent with the medical evidence in the case.
[103] I accept Mr Norman’s submissions. This is plainly a case where counsel made a legitimate tactical decision and no miscarriage of justice can be demonstrated.
[35] [2014] SASCFC 89.
Similarly here, counsel made a legitimate tactical decision and no miscarriage of justice arising from the reception of the complaint evidence is demonstrated.
As to the complaint of inadequate directions by the Judge as to the use of complaint evidence, the fact is that the Judge gave extensive directions. Immediately after Mr Angel gave evidence, his Honour directed the jury thus:[36]
Ladies and gentlemen, before the next witness is called I just direct your attention to the evidence given by Mr Angel. In due course when I give you my directions I will be directing you about a subject or a topic called initial complaint. It sounds all a bit lawyer speaker or a bit legalistic but what I will need to do is direct you how you can use that information and how you must not use that information. The evidence was called by Mr Phillips directed to count 5 on the information, the question of whether that constitutes an initial complaint. You can imagine generally speaking people can’t give evidence about what somebody else told them or otherwise. The law allows it to be called for a specific topic and I will direct you about that in due course. It sounds all a bit legalistic but I will deal with that in due course.
[36] T178.
In his summing up to the jury, his Honour directed:[37]
Another witness, Rodney Angel, gave evidence to you on one specific topic to which I will refer to as an initial complaint allegedly made by the complainant to him in or about 1987. I will address you about that and the limited use you may make of an alleged ‘initial complaint’. But one thing I do say to you now is this; for it to be placed before you by the prosecution it must qualify as the initial complaint as to Count 5 on the Information. The prosecution did not seek to lead any other ‘complaint’ as to count 5 nor as to counts 1 to 4 inclusive. It must be the initial complaint, that is to say he must be the first person to whom VW made her complaint, as it were, about the allegations in count 5. That count 5 is the final count of rape, the one which was said to be connected with the alleged demand by the accused that the complainant ‘take your stock off the land’.
I say this to you immediately because it was addressed by counsel. The complainant herself when she was giving evidence about that incident, and this is at p.72, she was asked about the question of the alleged rape and whether the cattle could remain there after settlement. She said this at line 13: ‘I had quite a few cattle by that stage. It was just an arrangement between Dad and I for all the years that I’ve worked on the farm. After Ian raped me that time I remember ringing Dad and saying “Ian’s been here again. He’s just raped me and he’s now threatening to sell all my cattle” and Dad just saying “Don’t worry about it, it won’t happen”.
I will come back to that but if you find that her alleged complaint to her father was the initial complaint then what she said to Rodney Angel cannot be the initial complaint. I will address you about that tomorrow. Rodney Angel’s evidence might still be relevant in a couple of respects if it were not an initial complaint. It might be relevant as to the complainant’s credibility because on the defence case, she just lied about complaining to her father, that this was some recent invention after her father had died. Secondly on the prosecution case it may be relevant if it is suggested this was all made up by Mr Angel and VW in the last couple of days. It would then be of some relevance that she said that she mentioned it to Mr Angel in 1987.
[37] Summing Up at page 2.
Later his Honour further directed:[38]
I have already mentioned in passing the evidence given by Mr Rodney Angel as to his conversations with the complainant in or about 1987. That is the matter I raised with you yesterday under the topic of an initial complaint. That sort of evidence must not be misused by you, ladies and gentlemen. I will try and explain it.
A jury it would not normally be permitted to hear any evidence about what someone has said to someone else not in the presence of the accused. Just think about that: someone at the pub says something, that is not evidence that something might have occurred. It would be rank hearsay.
I need to direct you as to the very limited use you may make of such conversations if and only if it does fall within the definition of initial complaint. Yesterday, I used the expression ‘lawyer speak’. It certainly can be confusing, but the law in South Australia permits evidence of the context of an initial complaint to be given to you but only for two very specific purposes and for no other purposes.
I stress and I will stress again that the evidence of an initial complaint is not before you as to the truth of what the complainant told Mr Angel in 1987. That is to say, it is not evidence that she was in fact raped in 1983 on the occasion that she was told that her stock had to go; that is to say, count 5. It is not evidence of the truth of her allegations in count 5.
It is only before you, if you find that it was an initial complaint, for the following two purposes: firstly, to inform you how the allegations about count 5 came to light and led to the charge being laid. That is the first limited use. In this case, you might ask yourselves, again ‘Is it an initial complaint? Does it explain how it came to light? Does it explain how the allegation came to the police for charges to be laid in respect of count 5?’ You see, you might think it is of no help to you at all in respect of those two issues because, notwithstanding the alleged conversation with Mr Angel in 1987, the allegations were not brought to the police until about 2008.
The second and only other limited purpose is to assist you in testing the consistency or inconsistency of the conduct of the complainant. You might expect a complainant to complain to someone if there had been such a rape. Was the conversation in 1987, some four years after the alleged rape in 1983, in any way consistent with the complainant’s allegations? There may well be various reasons why a complainant might choose to tell one person and not another. She was a friend of Mr Angel, that may well explain why she chose to tell him.
There may be reasons as to why a person would delay telling anyone about an alleged rape. Here, the complainant said to you ‘I could not tell anybody else, I could not tell my family about various matters’. Is it, however, consistent with the alleged rape that Mr Angel was not told until 1987? It is a matter for you but you might think that Mr Angel’s evidence in the end does not assist you at all in respect of the only two limited purposes that I have directed you about. If that is the case, put it to one side. Further you may well think, as I directed you yesterday at p.72 of the evidence, that it was not the initial complaint anyway because the complainant asserted in evidence that she had told her father of that alleged incident in 1983. The prosecution has not suggested that that alleged conversation with the father was an initial complaint so put that to one side. But I suggest to you, for the reasons I have already said, you might well think that the conversation with Mr Angel was not an initial complaint, or if it was then quite frankly it does not assist you at all and you may well decide that you put to one side that evidence completely. If it was not an initial complaint you must put it to one side in any event, on the prosecution case. It may still however be relevant to the complainant’s lack of credibility on the defence case as I explained yesterday.
Again I repeat, what the complainant allegedly told Mr Angel in 1987 is not evidence of its truth. The fact that one person might say something time and time again does not increase its truthfulness or otherwise, it is not evidence of the truth. It is not evidence that alleged rape in count 5 had occurred at all. For that to be evidence the prosecution must rely entirely upon what the complainant said to you on oath in this court as to the truth and reliability of her account of the alleged event in count 5. As I say, her evidence is not bolstered at all by what she might have told Mr Angel in 1987.[39]
[38] Summing Up at page 18.
[39] Summing Up at page 18.
At trial, Des Flavel gave evidence of an incident occurring in the shearing shed involving the appellant and VW. He stated that he was with his brother Peter; that he climbed onto some wool bales and looking down saw the appellant “laying across the top of [VW] having intercourse”; that he “looked straight down in her eyes and that’s something I’ve never forgotten”. He went on to say that he stepped back and went to the other corner of the shearing shed where he saw Neil Johnson having intercourse with VW’s friend FC. He then told his brother to “get out of here” and they then left the shed.
At trial, Peter Flavel gave evidence that he recalled an incident in the shearing shed. He said that he did not see anybody having intercourse but described his brother climbing up on some wool bales then jumping down and saying “let’s get out of here”.
The appellant also gave evidence of an incident in the shearing shed. He stated that his brother Neil and Des Flavel were present as was VW. He said that either Neil or Des Flavel told him to lie on top of VW; that he refused to do so; that Des Flavel punched him and was saying to him “you’re weak, you’re weak”. The appellant said that as a result, he went over and knelt beside his sister who was lying on one of the wool bales; that she unbuttoned his shirt; and that they “just wanted me to lay on top of her for some reason”. He denied any act of intercourse with his sister in the shearing shed; that VW “seemed to think it was like a game”; and that he could not recall how the incident concluded.
The law as to doli incapax
In South Australia between 1941, when the common law was displaced by statute, and 1972, when an amendment to the Juvenile Courts Act 1971 (SA) raised the age to ten, the age of criminal responsibility of a child was eight years. Before 1941 the common law position was that a child below the age of seven could not be guilty of a felony. A child over 14 was fully responsible for committing a felony. Accordingly, in the years 1963 to 1966, a child between the age of eight and 14 was presumed to be doli incapax but the Crown could rebut the presumption.[52]
[52] The Queen v M (1977) 16 SASR 589, 590.
In The Queen v M,[53] this Court considered the test to be applied when considering rebuttal of the presumption by the prosecution. Bray CJ (with whom Bright J concurred) held that in order to prove that a child between the ages of seven and 14 was not doli incapax, the prosecution had to prove that at the relevant time, the child knew the act was wrong according to the ordinary principles of reasonable or ordinary men.[54] Sangster J considered that the test was whether the prosecution had proved that at the time the alleged act was committed the child knew the act was wrong. Thus, the Court did not consider that the test required the Crown to prove that the child knew the act was “seriously wrong”, holding that the authorities which suggested this really involved nothing more than a question of emphasis.
[53] (1977) 16 SASR 589.
[54] (1977) 16 SASR 589, 593.
In R v Whitty,[55] Harper J adopted the test framed by Bray CJ and said:[56]
It seems to me that this test is helpful in deciding whether a child between the ages of 10 and 14 knew what she was doing was wrong. If a child is capable of understanding that the act in question is such as in any well ordered society it would subject the offender to punishment, then in my opinion the child has the requisite degree of understanding.[57]
[55] (1993) 66 A Crim R 462.
[56] (1993) 66 A Crim R 462, 464.
[57] At the relevant time s 127 of the Children and Young Persons Act 1989 (Vic) established a statutory presumption that a child under the age of ten years could not commit and offence.
Later in C v Director of Public Prosecutions,[58] Lord Lowry, speaking for the House of Lords, summarised the doctrine of doli incapax as being that a child is presumed not to know the difference between right and wrong and therefore to be incapable of committing a crime because of lack of mens rea; and that “wrong” means gravely wrong, seriously wrong, evil or morally wrong.[59] His Lordship referred to the judgment of Woolf LJ in IPH v Chief Constable of South Wales[60] where it was held that that before a child under the age of 14 could be found guilty of a criminal charge, there had to be evidence before the court which satisfied it that the child appreciated what was being done was “seriously wrong and went beyond mere naughtiness or childish mischief”.
[58] [1996] 1 AC 1.
[59] [1996] 1 AC 1, 24.
[60] [1987] Crim LR 42.
In C v Director of Public Prosecutions, Lord Lowry considered that the phrase “seriously wrong” is conceptually obscure but when the phrase is contrasted with “merely naughty or mischievous”, its meaning is reasonably clear. His Lordship identified two requirements for rebutting the presumption. The first is that the prosecution must prove that the child did the act charged and that when doing that act, he knew that it was a wrong act, as distinct from an act of mere naughtiness or childish mischief; proof to the criminal standard is required. His Lordship referred to the formulation adopted by Lord Parker CJ in B v R,[61] referred to in both The Queen v M and R v Whitty, to the effect that “guilty knowledge must be proved and any evidence to that effect must be clear and beyond all possibility of doubt”.
[61] (1958) 44 Cr App R 1, 3.
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
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.
EXAMINATION
QHe 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
The Judge also supplied a long and helpful memorandum to the members of the jury for their use in the jury room. The portion relevant to count 3 largely corresponded to the oral directions above. The final passage of direct interest here is as follows;
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 if the prosecution proves:
(1) that the accused committed no less than two alleged acts of sexual exploitation and;
(2) 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 3 days.
It is not sufficient that the accused committed more than one act of sexual exploitation. He must have committed two or more acts of sexual exploitation over a period of not less than 3 days. (Emphasis in bold added)
The decisions in KBT v The Queen, The Queen v M, BJ and R v Little
In 1997, in KBT v The Queen,[65] the High Court emphasised that there must be unanimity as to the actus reus of an offence and that one must construe the statute creating the offence in order to delineate correctly that actus reus. The Court held that the statute enacted an offence whose actus reus consisted of proof of three (or more) particular acts; that being so, the Judge should have directed the jurors that they were each required to be satisfied as to the commission of the same particular three acts (or more). Thus, Brennan CJ and Toohey, Gaudron and Gummow JJ stated:[66]
… it is clear from the terms of sub-s (1A) that the actus reus of that offence is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions. Once it is appreciated that the actus reus of the offence is as specified in sub-s (1A) rather than maintaining an unlawful sexual relationship, it follows, as was held by the Court of Appeal, that a person cannot be convicted under s 229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts.
Before turning to the precise issue in this appeal, it is convenient to note one other matter that arises out of the identification of the actus reus of the offence created by s 229B(1). As already indicated, sub-s (1A) of s 229B requires the doing of “an act [which] constitute[s] an offence of a sexual nature ... on 3 or more occasions”, albeit that it does not require proof of “the dates or the exact circumstances of [the] occasions” on which the acts were committed. The sub-section's dispensation with respect to proof applies only to the dates and circumstances relating to the occasions on which the acts were committed. It does not detract from the need to prove the actual commission of acts which constitute offences of a sexual nature.
It should be noted that, quite apart from any question of fairness to the accused, evidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour is not necessarily evidence of the doing of “an act defined to constitute an offence of a sexual nature ... on 3 or more occasions” for the purposes of s 229B(1A). Moreover, if the prosecution evidence in support of a charge under s 229B(1) is simply evidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour, it is difficult to see that a jury could ever be satisfied as to the commission of the same three sexual acts as required by s 229B(1A).
… Having regard to the evidence, it is possible that individual jurors reasoned that certain categories of incident did not occur at all but that one or two did, and more than once, thus concluding that the accused did an act constituting an offence of a sexual nature on three or more occasions without directing attention to any specific act. It is, thus, impossible to say that the jurors must have been agreed as to the appellant having committed the same three acts. Indeed, it may be that, had the jury been properly instructed, they would have concluded that the nature of the evidence made it impossible to identify precise acts on which they could agree.
[65] (1997) 191 CLR 417, 422-423.
[66] (1997) 191 CLR 417, 422.
The interpretation of such legislation may, of course, vary with differences in the precise wording of particular legislation.[67] However, in the decision of this Court in The Queen v M, BJ,[68] Vanstone J (with whom Sulan and White JJ agreed) applied the decision in KBT v The Queen to ss 50(1) and (2) of the Criminal Law Consolidation Act 1935. Their Honours stated:[69]
In my view it follows from the clear wording of s 50(1) and (2) that the actus reus of the offence is more than one act of sexual exploitation of a particular child committed over a period of not less than three days. Therefore, the jury must agree that the accused person committed the same two or more acts of sexual exploitation before convicting. It is within s 50(1) that the actus reus of the offence is given. Section 50(4) is concerned, as I said, with the framing of a charge against the section and cannot derogate from s 50(1). (Emphasis added)
[67] See for examples the discussion in KRM v The Queen (2001) 206 CLR 221 and BBH v The Queen (2012) 245 CLR 499.
[68] (2011) 110 SASR 1.
[69] R v M, BJ (2011) 110 SASR 1, 28-29, [70].
In the recent decision of the Full Bench of this Court in R v Little[70] the Court stated:
[2] The appellant has appealed against his conviction on a number of grounds, but it is necessary to deal only with that ground which complains that there has been a miscarriage of justice by reason of the failure of the Judge to expressly direct the jury that there must be at least one prescribed pair of the same acts which they unanimously, or by majority, agree has been proved beyond reasonable doubt.
[3] A Full Court of five was convened because it was thought that the correctness of this Court’s decision in R v M, BJ[71] may be questioned.
[4] We would hold that the Judge erred in law in failing to direct the jury that it must agree unanimously, or by majority after four hours, that a prescribed pair of the same two acts, from the multiple acts of sexual exploitation alleged, has been proved beyond reasonable doubt. The decision of this Court in R v M, BJ[72] does not hold to the contrary and was correctly decided. Our reasons follow.
…
[10] The Judge’s directions do not expressly state whether he is addressing the jury as a single body or the individual jurors. In particular the Judge did not expressly direct the jury that before it could return a verdict of guilty, it must either unanimously, or by statutory majority, find beyond reasonable doubt that the accused had committed at least one pair of the same two acts within a period of not less than three days.
[70] [2015] SASCFC 118.
[71] (2011) 110 SASR 1.
[72] (2011) 110 SASR 1.
The Court, after considering the decision in KBT v The Queen, stated:
[19] It is clear from the reasons of Vanstone J that this Court in R v M, BJ proceeded on the basis that it was an error not to give an extended unanimity direction when directing the jury on the elements of the offence of persistent sexual exploitation. The Court held, with respect correctly, that the failure to give that direction had not occasioned a miscarriage of justice in the circumstances of that case.
Application to this Appeal
[20] The failure to give an extended unanimity direction is an error of law. The conviction must be set aside and a new trial ordered unless the proviso can be applied.
[21] AW’s testimony described eight particular acts of sexual exploitation and was evidence of very many more unspecified acts. The prosecution did not put its case on the basis that the jury could, and should, accept that every one of the sexual offences of which AW gave evidence was proved beyond reasonable doubt. Some jurors may have accepted that all of the acts were proved. However, some jurors may not have been satisfied beyond reasonable doubt of the acts which were not supported by evidence of the surrounding circumstances. Amongst those jurors, some may not have been satisfied beyond reasonable doubt about the offence which was said to be the first occasion of sexual intercourse, some may have had doubts about the occasion on which the appellant changed his testimony about his age and, others may not have been satisfied that any offending occurred in the caravan.
[22] Counsel for the Director submitted that AW’s account was supported in certain general aspects by independent evidence. So much may be accepted. However, the prosecution case as to the commission of individual acts of sexual exploitation, depended entirely on the testimony of AW. In that respect, it is of some significance that two jurors were not satisfied that the charge was proved at all.
[23] We are not satisfied on the evidence in this case that all of the members of the majority of the jury who returned the verdict of guilty had necessarily agreed that the same pair of offences had been proved beyond reasonable doubt.
Conclusion
[24] We would allow the appeal, set aside the conviction and remit the matter for retrial.
As can be seen from the above passages, the decisions in KBT, M, BJ and Little were concerned only with the sufficiency of the direction given by the Judge. However, in the present case, the appellant makes the more fundamental submission[73] that the evidence here is simply too sparse for the jurors to delineate, and agree with each other as to, any two occasions on which vaginal sexual intercourse occurred within the timeframe of count 3 on the Information.
[73] This submission was not available on the evidence in Little and was therefore not considered.
As this Court held in both The Queen v M, BJ and R v Little, “the jury must agree that the accused person committed the same two or more acts of sexual exploitation before convicting”.[74] In my view, it must be accepted that in order for the jury to do so, there must be a minimum amount of evidence adduced by the prosecution to enable jurors in the jury room to delineate two offences (at least) and to agree that those two offences were committed.
[74] The Queenv M, BJ (2011) 110 SASR 1, 28-29 [70] (Vanstone J, Sulan and White JJ agreeing).
Of course, the degree of particularity that will enable a jury to delineate two offences, and to agree that they were committed, may be quite low. As simple examples only, an association between the commission of an offence and an identifiable occasion or event preceding, accompanying, or following, may be sufficient.[75]
[75] As examples: “one offence occurred a few weeks after my birthday”; “one offence occurred on the day I first wore a particular item of clothing that my mother bought me.”
But sight must be not lost of the fact that the lower the degree of particularity permitted, the harder it is for a truly innocent person to contest a charge by using forensic tools such as establishing an alibi for himself on the occasion of an alleged offence or by challenging the complainant’s evidence by reference to facts associated with her allegation of the offence.
While, a charge of this type does permit a low degree of particularity, in the present case the evidence rises no higher than an assertion that the appellant had vaginal sexual intercourse with VW on many occasions over a period of two years. There is simply no point of identification of any act, let alone two acts, which can be delineated and agreed upon by the jurors.
The authorities of KBT v The Queen, The Queen v M, BJ and R v Little all stand for the proposition that the appellate Court must be satisfied that in a case under appellate review, “on the evidence … that all of the members of the majority of the jury who returned the verdict of guilty had necessarily agreed that the same pair of offences had been proved beyond reasonable doubt.”[76] In the present case, I am unable to reach that state of satisfaction. It was impossible for the jurors who returned the verdict of guilty to have agreed that the same pair of offences had been proved beyond reasonable doubt, simply because it was impossible for them to delineate any such pair of offences.
[76] R v Little [2015] SASCFC 118, [23].
The verdict of guilty on count 3 cannot stand. The appeal must be allowed and judgment of acquittal be entered on count 3. This result makes it unnecessary to consider grounds 1A and 1B of appeal.
Ground 9 of appeal: Application to counts 2, 4 and 5
I approach ground 9 of appeal as it applies to counts 2, 4 and 5, by weighing the competing evidence having regard to the principles adumbrated in M v The Queen,[77] and also having regard to the subsequent decisions of the High Court in MFA v The Queen,[78] Nguyen v The Queen,[79] and SKA v The Queen.[80]
[77] (1994) 181 CLR 487 including the long passage from the last paragraph on page 492 to the first paragraph on page 495 in the judgment of Mason CJ and Deane, Dawson and Toohey JJ.
[78] (2002) 213 CLR 606.
[79] (2010) 85 ALJR 8; 271 ALR 493.
[80] (2011) 243 CLR 400.
In making an assessment of the evidence, I have had regard to the transcript and exhibits, the oral submissions on the appeal, the written submissions of both parties on the appeal and the further documents furnished on the appeal which analyse and marshal the facts, including the appellant’s chronology (six pages) and the respondent’s summary of evidence (six pages). I have considered all of the evidence, including that pertaining to what the appellant refers to as the “Family Feud” (concerning disputes as to inter alia sale of livestock, testamentary and power of attorney matters, restraining orders, proprietary rights and money matters in general). In doing so, I have taken into account, in favour of the appellant, the matters flowing from the great delay in this case, including those raised in the context of ground 6 of appeal
Counsel for the appellant naturally emphasised that: the evidence of VW was unsupported by independent evidence; that the allegations were denied by the appellant on oath; and that the appellant had provided her first police statement on 27 May 2008 so that by the time of trial, 50 years had elapsed from the earliest of the alleged events. Counsel for the appellant submitted that VW’s memory was poor in a number of areas and referred to a number of inconsistencies in the evidence and other matters said to bear upon VW’s credibility and reliability. I weigh all of these matters singly and in a cumulative fashion.
I also have regard to the fact that the verdicts on counts 1 and 3 are being set aside with judgment of acquittal being entered. However, as appears above, those acquittals are in no way inconsistent with the appeal being dismissed on counts 2, 4 and 5. The verdict on count 1 is set aside not, because the evidence of VW as to the facts occurring in the shed is suspect, but rather on the basis that the whole of the evidence could not rebut the presumption of doli incapax. The verdict on count 3 is set aside, not because the evidence of VW as to the facts concerning this count is suspect, but rather on the basis that that evidence was, as a matter of law, insufficient to prove the charge that was laid.
Further, I make clear in the context of the argument that invalid joinder of counts 1 or 3 leads to miscarriage of justice in relation to counts 2, 3 or 5, that such arguments are rejected. The evidence led in support of counts 1 and 3, although insufficient to make out those counts, was, and remained, admissible on counts 2, 3 and 5 on the bases explained above, principally that of “relationship evidence”.
I also bear in mind that although the defence case, aligned with the positive evidence of the appellant, was simply that the acts said to constitute those counts did not occur, there remained a requirement of proof of the mental element required by the respective charges.[81] However, the jury were fully and correctly directed as to that required mental element in the summing up and the verdicts of guilty for each of counts 2, 4 and 5 indicate that the jury inferred from their findings that the actus reus had occurred (together with the surrounding circumstances) that the required mental element was satisfied.
[81] In the case of count 2, the mental element was simply to perform sexual intercourse with VW who was then under 17 years of age (no question of mistake as to age possibly arising in the present circumstances). In the case of counts 4 and 5, the mental element was that of the offence of rape, as to which reliance could be placed on the emphatic evidence given by VW of obvious non-consent.
I have come to the conclusion that the inconsistencies and shortcomings referred to by the appellant are not otherwise than may be explained by the advantage that the jury had in seeing and assessing the witnesses. I do not hold a doubt that both the elements of the actus reus and necessary mens rea were established and that the appellant is guilty of counts 2, 4 and 5 and I do not consider that the jury should have reasonably held such a doubt.
Ground 9 of appeal as it applies to counts 2, 4 and 5 is rejected.
Proposed orders
I propose the following orders:
1The appeal be allowed as to counts 1 and 3.
2The verdicts of guilty on counts 1 and 3 be set aside and that verdicts and judgment of acquittal be entered on counts 1 and 3.
3The appeal be dismissed on counts 2, 4 and 5.
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