R v K - [2006] SADC 4

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v K
Reasons for Ruling of His Honour Judge Tilmouth
31 January 2006
CRIMINAL LAW - EVIDENCE - RELEVANCE
Proof of System - Sexual offences - Similar facts
Accused charged with two counts of unlawful sexual intercourse. Prosecution seeks to tender semen stained handkerchief found many months later, in circumstances disclosing another offence against another complainant.
Held inadmissible as of insufficiently high probative value and in the exercise of discretion. Stay held to be an inappropriate remedy.
Harriman v The Queen (1989) 167 CLR 590; Pfennig v The Queen (1995) 185 CLR 461; R v Bridger (2003) 141 A Crim R 287, ; R v Colby [1999] NSWCCA 261,; Hoch v The Queen (1988) 165 CLR 292,; BRS v The Queen (1997) 191 CLR 275, applied.
R v HS (2004) 90 SASR 28; R v Schlaefer (1984) 37 SASR 207; B v R (1992) 175 CLR 599; Sutton v The Queen (1984) 152 CLR 528, considered.

R v K
[2006] SADC 4
The Charges

K stands charged following arraignment on two counts of unlawful sexual intercourse[1] committed on a person under the age of thirteen years, each constituted by acts of digital penetration. On the prosecution case the first occurred in early 2001 and the second in approximately Easter of that year, both at the accused’s home where the complainant “BI” was staying overnight. On each occasion there is an allegation accompanying the discrete acts charged of the accused making BI masturbate him.
[1] S49(3) criminal Law Consolidation Act 1935 (SA)
Background
Later that year, an incident occurred on 10 November with respect to another young girl “K”, leading her and BI to make complaints of sexual interference by the accused, at the Holden Hill Police Station. Soon after, on 10 December 2001, Detective Charlton seized various items from the accused’s home including nine handkerchiefs, one of them described by Dr Both, a forensic scientist, as red and grey, which later turned out on her examination to be stained by semen having a DNA profile matching the accused.
It is to be observed that there is no evidence about precisely where the handkerchief was found. It was apparently handed to Detective Charlton by the accused’s wife during a search of the premises without any description of location being proffered.
Previous Proceedings
In the course of time the accused was tried and convicted of offences relating to K; an appeal and an application for special leave to appeal, were respectively dismissed. That handkerchief was admitted in evidence during the trial of the accused with respect to the charges relating to K, being left to the jury, as “capable of supporting her story that he would often wipe his ejaculate up either with a hanky or a towel”.[2]
[2] Summing Up Judge David 24 February 2004, P22.
Her evidence at the trial on that occasion was that in one incident in a shower, which appeared to be the last involving sexual activity, the accused “took a hanky out of his pockets and wiped himself down”[3] after masturbating, so there can be no doubt that K was a potential source of any knowledge the accused would “wipe his ejaculate up with a hanky”.
[3] T 289 L9.
On his appeal to the Court of Criminal Appeal,[4] it is reported by the Chief Justice during the course of his judgment, that the accused “could not explain how K might have known that … his sperm or semen would be found … on the hanky”. The court held the trial judge’s directions about this evidence were “adequate”.[5]
[4] R v IK [2004] SASC 280
[5] [39] and [41] respectively.
There were also allegations during the trial that the accused would use towels to wipe his semen; some were seized and on inspection some were also found to contain semen matching that of the accused.[6] There was no application for joint trials, which is hardly surprising if the view were taken that the evidence in each case was not admissible in the other.[7]
[6] T 254 L24 - Prosecution opening.
[7] De Jesus v The Queen (1986) 61 ALJR 1.
The handkerchief tested positive for semen as well as blood, the blood forming an additional link with K, since she was menstruating when one of the acts relating to her were said to have taken place; however the test for blood was merely presumptive and did not go further to prove that it was deposited by the accused or that it was menstrual.
The case for admission of the handkerchief
In these proceedings the prosecution seeks to tender the same handkerchief in support of its case against the accused. Late notice of this was given to the defence and a Rule 9 Notice was submitted in response, opposing reception, so the matter proceeded as an issue antecedent to the trial. It is to be noted that this evidence is in no guise admissible in relation to count two, for there is no identical allegation of the handkerchief having been used in relation to those events.
The proposed evidence of the complainant BI in relation to the first count, is to the effect that after the events forming the basis of the charge, she masturbated the accused, he ejaculated in her hands, he then wiped them with his handkerchief, followed by his stomach and penis. BI herself refers only to a “hanky”, giving no further description such as to size, where it came from or as to where it was placed by him, and certainly not that it was red or grey in colour.
It was put by the prosecution that the handkerchief is highly probative, as it confirms the accused had on at least one later occasion used the handkerchief for the same purpose described by BI, which tends to support or confirm her account that he wiped his ejaculate with a handkerchief. In addition it was said to be highly unlikely for a thirteen year old to have made up such events, unless she had been present and actually seen them herself.
This evidence is capable of supporting the conclusion that the accused had used his handkerchief to ejaculate, or to wipe his ejaculate on occasion, however nothing is known of the circumstances of his sexual relations with his wife. It hardly presents a picture, when taken alone, of a system, habit or practice of doing so.
The premise that a thirteen year old would not be sophisticated enough to invent the story or account related to above, is perhaps speculative, but I shall presume for the purposes of the current ruling that it is highly unlikely for such a child, all other things being equal, to hold such knowledge. In any case, that would be a question for the jury to determine. Of course, if there was other evidence suggesting the child had regular access to adult films for instance, or there was some other potential source of such knowledge, matters might be viewed somewhat differently.
All the same, I accept the evidence to be led from BI, is capable of supporting the view that she held “esoteric knowledge”,[8] which could only have been acquired if the act described was seen by her for the first time, that is to say “this is an important detail which a child would be unlikely to invent.”[9] It is a truism that a person cannot know of things not seen or of which the only knowledge is gained by hearsay: Surjpaul v R.[10]
[8] See R v HS (2004) 90 SASR 28; [2004] SASC 300 at[18-30], [50-55], [159-162].
[9] R v Schlaefer (1984) 37 SASR 207 at 108.
[10] [1958] 1 WLR 1050
Evidence of Contamination or Concoction?
For that very reason, it is submitted by Ms Davey for the defence, there is a flaw in the reasoning process in the application to tender. The nub of the submission is that BI is likely to have related events sourced from K.
K’s deposition or statement was to the effect that the last incident concerning the accused took place on Sunday 10 November 2001; on that occasion he “wiped his penis with his hanky”.[11] She failed to attend school on the following Monday, but did on the Tuesday, when during the course of lesson 6 (an English lesson), the first person she talked to about the abuse was BI. Her complaint at that time was to the effect that the accused “has sexually harassed me and has touched me up…”. BI replied (in part) “I’m not letting you go home…my parents will help you out, the police will help you out, we will stick together like we have in the past” and the accused “has done the same to me too”.[12]
[11] Statement of K 29 April 2002 page 18.
[12] Statement of K 29 April 2002 page 20.
As noted, the two girls complained at one and the same time of the separate incidents relating to them, involving the accused on Wednesday 4 November. It emerges from the material presented by counsel on this application, that the two girls were class mates and the best of friends, that they were prepared to “stick together” and to support each other,[13] and in the words of a letter written by BI to K.[14]
… will help you in every way possible. Stop lieing (sic) and own up … Don’t forget you are my sister and I am your sister and am trying to help you. … But now you are here where I can help you.
[13] Committal evidence of K pages 14 and 20.
[14] Exhibit VD P1.
It is quite true as Ms Boord argued, that BI complained to another close friend NM, three or four months before late June 2001 to the effect that “I wanked [the accused] off”, although she did not relate “much of the details of how it happened”.[15] In fact there is no reference at the time of this complaint, to anything corresponding at all with the first count in respect of the handkerchief; had there been, it would completely refute any suggestion of K being the source of BI’s knowledge.
[15] Statement of NM dated 27 June 2002, taken 12 December 2002, pages 1-2.
The case for rejection of the handkerchief
It was submitted in the first place, that although the evidence might have been admissible, its probative value was not that high, given the absence of any temporal link or any specific nexus with the events to which count 1 relate, there is no reference in the statement of BI linking this specific handkerchief with her experiences, the relatively long time period between early 2001 and seizure in December that year, and the absence of any evidence at all of the circumstances in which it was found - for all that is known it could have been taken from a laundry basket where it might have been left for a matter of hours or for a matter of months.
Secondly, the circumstances linking the two girls together in their dealings with the accused, clearly demonstrate both “complainants” had a sufficient relationship to each other, had every opportunity and the motive to talk in some detail to each other about the events, to the point that the evidence “lacked the necessary degree of probative value necessary to render it admissible.”[16] Of course this expression in the joint judgment of Mason CJ, Wilson and Gaudron JJ in Hoch was made in the context of the admission of evidence of other offences than those charged, rather than in the context of leading what might be described as “real” or “original” evidence, as in the case of the handkerchief.
[16] Hoch v The Queen (1988) 165 CLR 292, 297
The accused made the further submission that in order to expose the suggestion of “esoteric knowledge” that might be implied in the mind of a thirteen year old unfamiliar with or unexposed to events such as these, it would be necessary to put to BI that the source of her knowledge was K.[17] On the contingency that she denied the suggestion, the prosecution has indicated it would seek to call K in order to refute the possibility of “contamination” or “concoction” of what otherwise might be seen as “esoteric knowledge” held by BI.
[17] The defence gave an undertaking from the Bar table that her instructions were that this course would be adopted.
The prosecution has also conceded that it would necessarily have to prove the circumstances in which K acquired her own knowledge, that is by the means of revealing another unlawful act of intercourse in about November 2001 with the accused. Defence counsel accepts this is a necessary consequence of the exploration by her of the possibility of concoction or contamination, and argues that in order to disabuse the notion that the only inference available is one of “esoteric knowledge,” she had no other forensic choice than to proceed in this way. Accordingly as Brennan J observed in B v R[18] there is somewhat of a dilemma in situations like this:
An accused, seeking to tender evidence admissible for more than one purpose, cannot restrict the purposes to which that evidence can lawfully be put. Indeed, a party may be required to tender evidence which he does not wish to tender for any purpose and, once tendered, it becomes a medium of proof of matters to which it is relevant. When evidence is properly admissible for two or more purposes, it can be used, once admitted for any or all of those purposes. [footnotes omitted].
[18] (1992) 175 CLR 599 at 607
Analysis of the Issues
It may be seen that this is not a case in which the evidence sought to be admitted, standing alone, is of such high prejudicial effect that it undoubtedly outweighs probative value. Nor, in contrast, is it of a sufficiently high degree of probative value to pass the test of admission propounded by the High Court in the trilogy of cases: Hoch[19], Harriman[20] and Pfennig,[21] , if that test is applicable.
[19] Hoch v The Queen (1988) 165 CLR 292,
[20] Harriman v The Queen (1989) 167 CLR 590.
[21] Pfennig v The Queen (1995) 185 CLR 461.
Before the court then, is evidence admissible for a limited and quite specific purpose, but which carries with it a necessary forensic consequence for the defence, which the prosecution submits is a matter of election entirely for it to make, and which if made enables the prosecution to put before the jury evidence in a form not otherwise directly admissible.
That evidence, at its best, is of some probative value and correspondingly at its worst, necessarily informs the jury that the accused has committed an identical offence, committed in similar although not “strikingly similar” circumstances, and which is on no account admissible on that basis. Whilst it remains true that the jury could and should be warned they are not to engage in impermissible propensity reasoning, namely that the evidence could not support an inference that the accused was the sort of person who would commit offences of the kind charged or that he had a propensity to commit such offences,[22] this is not a case of “similar fact” evidence as such.
[22] BRS v The Queen (1997) 191 CLR 275, at 331-332, Gipp v The Queen (1998) 194 CLR 106, R v Nieterink (1999) 76 SASR 56.
The predicament is that the introduction of the evidence of a previous identical offence will necessarily come before the jury in order to properly and effectively agitate the defence case and expose, if it can, the prospect of contamination of BI by K, with respect to the subject matter of the proposed evidence. In the circumstances it is difficult to conceive of clear direction that would point out the confined limits of permissible use of the handkerchief, whilst at the same time explaining impermissible use or modes of reasoning which a jury could readily understand.
One need only consider the content of such a direction to illustrate the point. In order to entertain the prospect of contamination, the jury would necessarily have to first accept that the accused offended against K in the way described by her and in the particular use of the handkerchief; the one flows from the other. To follow with a direction that the handkerchief was admissible only for the sole purpose of confirming or supporting the evidence of BI – but then to direct them that they may not use it for any other purpose - is self contradictory. It is to undermine one premise with another, that is by asking the jury to conclude the offence against K occurred in order to found the hypothesis that she had knowledge of the use of the handkerchief and passed that on to BI.
It would be clearly difficult to expect a jury to understand, let alone to separate the two contradictory uses to which the evidence of the handkerchief could be put. In that event as Brennan J explained in Sutton v The Queen, albeit in a slightly different context, nevertheless applicable here:
Where … evidence is not admissible towards proof of … guilt of the other offence, some steps must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.
to which I would respectfully add, “or an application to exclude should be granted”.
Furthermore in Sutton v The Queen (1984) 152 CLR 528 at 564 Dawson J expressed the view that in order to determine the admissibility of “similar fact evidence”:
The trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused.
This passage was quoted with approval by Mason CJ, Wilson and Gaudron JJ in Hoch (above at 296)[23] and subsequently endorsed by the High Court in Pfennig v The Queen.[24] In other words if the reasonable possibility of contamination arises, the subject evidence must be withheld from the jury because that risk “deprives the evidence of its significant probative value, regardless of its’ relevance.”[25] The House of Lords has also adopted the approach that when it becomes apparent on a trial that no reasonable jury could accept the evidence of two or more “complainants” as being free from collusion, the judge should at least direct the jury that it could not be relied upon as corroboration or for any other purpose adverse to the defence and that the prospect of collusion is relevant in considering the evidence of admissibility of such evidence, although in only a “very exceptional case”.[26]
[23] KRM v The Queen (2000) 206 CLR 221.
[24] (1995) 182 CLR 461 at 475, Mason CJ, Deane and Dawson JJ.
[25] R v Colby [1999] NSWCCA 261 at [107] per Mason P.
[26] R v H [1995] 2AC 596.
BRS v The Queen
In arguing for the reception of this evidence Ms Boord for the prosecution relied heavily on the decision of the High Court in BRS v The Queen.[27] The appellant in that case was a teacher charged with committing sexual acts on a pupil of about the same age as BI in this case. That pupil gave evidence of the accused masturbating on a bed using a lubricant and a towel, both kept under the bed. A school friend also gave evidence that the accused likewise encouraged him to masturbate in the bed and to the use of a lubricant and a towel, once again kept under the bed. There was no suggestion of any concoction between the two of them. The evidence was led without objection, even though the trial judge expressed misgivings about it, defence counsel indicating that it went only to the accused’s character, since good character was put in issue by the defence.
[27] (1997) 191 CLR 275.
During the course of the final address of the prosecutor, the evidence of the friend was relied upon as showing a “predilection or liking for the company of boys and for masturbating in their company”, and that the evidence of the friend regarding the lubricant and the towel, tended to support and confirm the evidence of the pupil as to the use of those items.
It was held by the High Court that the evidence of the friend was admissible to corroborate the evidence of the pupil, as to the presence of the lubricant and towel located under the bed in the bedroom. The outcome of the appeal turned on the absence of a direction warning the jury of the impermissible use of the evidence as potentially showing that the accused was the sort of person who would engage in the conduct the subject of the charges.

It seems on a close reading of BRS that although the evidence was admitted initially as rebutting the good character evidence presented by the appellant, it clearly became admissible for all legitimate purposes, including the purpose of confirming the evidence of the pupil, if the jury were prepared to accept it in that way, under proper instruction warning against misuse. In that respect BRS supports the tender of the handkerchief.
A significant point of distinction with this case, is the absence of any suggestion of concoction in BRS, and parallel aspects of the evidence of the two “complainants” not evident here, to quote the Chief Justice, “the similarity of the circumstances … is so striking that W’s evidence was strongly corroborative of H’s evidence in that particular”.[28]
[28] 191 CLR at 283
Evidence inadmissible in the manner proposed
In the result the court is confronted with a situation where the evidence sought to be admitted is unquestionably of some probative value, but not highly so. The Court is also faced with an inevitable challenge on the footing that it is susceptible of an innocent explanation by “concoction” between the two girls concerned, or to put it another way, there is another reasonable explanation other than that the accused is guilty of the offence charged: Pfennig.[29]
[29] (above at CLR 485, 510).
The situation is then that there is an explanation which the court is unable to reject beyond a reasonable doubt or alternatively is one which remains in the words of the majority in Hoch[30] as:
… clear from the evidence that the several complainants had a close relationship as well as an opportunity to concoct their accounts of the offences charged … There is no feature of the case which displaces concoction as a reasonable explanation of the several accounts. The evidence of the several complainants lack the requisite probative force necessary to render it admissible as similar fact evidence in relation to the other offences charged.
[30] 165 CLR at 297
The scope of the inquiry to be made by the trial judge in this connection was described in Hoch (above) as involving a consideration of such questions as whether there is “no real chance of conspiracy among the complainant(s)”, there is a “possibility of conspiracy”, as to “the non-existence of a cause common to the witnesses”, and was there “a real danger of concoction”. [31] As their Honours concluded:[32]
[31] 165 CLR 302 per Brennan and Dawson JJ
[32] 165 CLR at 304
There is a duty on a trial judge to exclude similar fact evidence unless he is satisfied that there is no real chance that it is the product of a cause common to the witness.
That is not to say that a trial judge should lightly conclude that there is a “real chance” of conspiracy among complainants in sexual cases, whether children or adults. Contact or antecedent friendship between complainants may be quite insufficient to found such a conclusion. But the circumstances of their contact or friendship may warrant an inquiry whether there was a real chance that they had agreed to concoct their allegations. When such circumstances appear, the judge must inquire.
In approaching that inquiry, the trial judge must be careful to acknowledge the mere possibility of collusion, concoction or “contamination” – as I would prefer to describe it in the circumstances of this case – is insufficient, so that a reasonable possibility must emerge based upon an identifiable factual foundation: R v Bridger,[33] before the question of exclusion arises
[33] (2003) 141 ACrimR 287, 228 LSJS 112 at [39].
In that regard the nature of the close and enduring relationship between the two girls BI and K, the existence of antagonistic motives against the accused, the shared moments of mutual complaint at school, the fact that they did talk to each other about these matters to the extent disclosed by their oral depositions, and that they complained in tandem, suggest the very real and live prospect of contamination in all the circumstances. Accordingly the evidence of the semen stained handkerchief, of necessity carrying with it the disclosure of another offence, is inadmissible.
Evidence subject to discretionary exclusion
During the course of her judgment in Harriman v The Queen[34] Gaudron J referred to the discretion “which inheres in a trial judge at a criminal trial to exclude evidence which is technically admissible but which would operate unfairly against the accused”. Her Honour went on to explain the discretion could properly be exercised “… to ensure the fairness of the trial” citing Lord Reading’s famous rendering of the Christie discretion to exclude evidence which “has little value in its direct bearing upon the case, and might indirectly operate seriously to the prejudice of the accused … .”[35]. A similar discretion also resides in a trial judge when the jury might attach undue weight to it or to use it for inadmissible purposes.[36]
[34] (1989) 167 CLR 590 at 619.
[35] R v Christie [1914] AC 545, 564
[36] Noor McMahon v The King [1949] AC 182, 192.
The trial is likely to be of short and narrow compass, but if this evidence is to be introduced it is likely to become the focus of attention. As the forensic issues unfold, in the way envisaged by counsel, there is a danger the jury will ask whether it has been shown that the source of BI’s knowledge might have been K, rather than whether the prosecution has made out its case beyond reasonable doubt. In that event the evidence contains the ever present capacity to irreparably divert the attention of the jury away from a “dispassionate consideration of the issues”,[37] or for the jury to deliberate, “from prejudice rather than proof.”[38]
[37] R v Duke (1979) 22 SASR 46, 48.
[38] Hock at 302.
Stay as an alternative remedy?
As a final submission, the prosecution contended that if the circumstances work incurable prejudice or procedural unfairness on the accused, the appropriate remedy was a stay. This has its problems for a number of reasons.
In the first place an order staying the proceedings could only operate with respect to count 1, leaving count 2 to be tried in a complete vacuum. Next, an order of that kind, or alternatively to dismiss proceedings as an abuse of the court’s process, is a quite exceptional remedy.[39] Another way of dealing with issues falling short of these most drastic of remedies, lay in directions of the trial judge to the jury, dealing with the problem giving rise to the application to stay, as in R v Slattery.[40]
[39] Connelly v Director of Public Prosecutions [1964] AC 1254, R v Vuckov (1986) 40 SASR 498, Holmden v Bitar (1987) 47 SASR 509, (1987) 75 ALR 522; (1987) 27 A Crim R 255
[40] [2002] NSWCCA 367.
In the event the remedy most appropriate to the situation confronted here is to exclude the evidence. That being so the need for a stay does not arise. On any view a stay would constitute an incomplete and rather blunt remedy, when there appears to be no reason why the trial cannot proceed without the evidence of the handkerchief being tendered.
Conclusion
There is an objection to the admission of evidence a semen stained handkerchief found in the accused’s house in December 2001, as supporting the evidence of BI as to allegations pertaining to the accused arising in early January 2001, with respect to only one of two counts on the indictment. It may be accepted that such evidence is relevant, however, the lack of a tangible nexus with the events pertaining to count 1, make it of relatively slight probative value.
If received, the spectre of cross-examination to the effect that the source of her knowledge was attributable or reasonably explicable through communication with K, and the consequent revelation of the incriminating circumstances in which K acquired that knowledge, means it does not pass the pre-requisite test of high probative value, and it is therefore inadmissible. Further it has the potential for an impermissible spill-over effect into count 2, on which it is plainly not admissible.
More than that, it is possible on the material, to identify a reasonable or rational hypothesis consistent with innocence, and it is difficult if not impossible to conceive of a direction adequately curing the prejudice on count 1, reconciling incompatible uses, avoiding a detrimental spin-off over to count 2, and of ensuring separate consideration of the evidence admissible solely in relation to Count 2.
Alternatively, even if the evidence is admissible notwithstanding the manner in which it will inevitably emerge, the prejudicial effect greatly outweighs the limited probative value, and it should therefore be excluded as a matter of discretion for that reason, for the reason that it would be unfair to the accused in the conduct of his defence, and/or that it would unduly distract the jury’s attention from the central issues for them to try in the case.
Order
The order of the Court therefore is that the evidence of the handkerchief seized in December 2001 from the home of the accused should not be admitted in to evidence.