R v K, MC - [2009] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v K, MC
[2009] SASC 141
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice David)
21 May 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
Appellant convicted of sexual offences against his two daughters and another child (A) - evidence that one of the charges against A occurred in the presence of the two sisters - one of the sisters gave further evidence that on a number of occasions she had observed the appellant committing a further charged act and numerous uncharged acts on A - appellant argues that a miscarriage of justice resulted from the trial judge's failure to order a separate trial for the charges against A - in particular appellant argues that evidence of the sisters was more prejudicial than probative in relation to the charges against A.
Held: Decision not to order separate trial on A's charges correct - no error made by the trial judge in directing jury as to proper use of evidence of charged and uncharged acts and as to impermissible use - appeal dismissed.
HML v The Queen (2008) 235 CLR 334; R v IK (2004) 89 SASR 406, applied.
De Jesus v The Queen (1986) 61 ALJR 1; Gipp v The Queen (1998) 194 CLR 106; R v Nieterink (1999) 76 SASR 56, considered.

R v K, MC
[2009] SASC 141
Court of Criminal Appeal: Vanstone, Anderson and David JJ

VANSTONE J: After a trial before a judge and jury in the District Court, the appellant was convicted of sexual offences committed against his two daughters and another child, A. He now appeals on three grounds. He argues that a miscarriage of justice resulted from the trial judge’s failure to order a separate trial for the charges against the unrelated girl. He also complains of two specific directions given by the trial judge as to the use that could be made of evidence of one complainant in considering the charges concerning another.
Background
It is important to notice at the outset that there was no objection at any stage to a joint trial of the offences against the two sisters, whom I shall call B and C. On a number of occasions each was present during the commission of offences against the other, some of those being charged and others not. That alone would justify a joint trial of those charges.
In addition, it should be noted that the prosecution did not present its case on the basis that any of the evidence established a general propensity in the appellant to commit such offences. The jury was warned not to reason in that way. Rather, the argument, as to the admissibility of A’s evidence in a joint trial and the directions to the jury, focussed on particular acts, attested to, or not attested to, by one of the girls, which one or more of the others saw, or was in a position to see.
Counts 1, 2 and 3 on the Information were charges of indecent assault committed upon A when she was twelve years of age. These were said to have occurred in the period late December 1980 to early January 1981, at a time when A, who normally lived at Farr House, Fullarton, was staying with the appellant’s family. The appellant was acquitted of count 2, the girl’s evidence having departed from the allegations about that count in the prosecutor’s opening address.
Counts 4, 5 and 6 were based on the evidence of B. Two of these were indecent assault, occurring when B was twelve or thirteen years of age, and the third was unlawful sexual intercourse, said to have occurred when she was fifteen years old. Counts 4 and 5 occurred in the first half of 1981 and count 6 in the latter half of 1983.
Counts 7 to 9 were based on the evidence of C, who was 18 months younger than B. Count 7, a charge of unlawful sexual intercourse with a person under twelve, was said to have occurred in the first half of 1981, when C was aged eleven years. Count 8, a charge of indecent assault, occurred in the latter half of 1982, when C was aged twelve. Count 9 was said to have occurred in the same period, but was a charge of unlawful sexual intercourse.
The appellant was convicted unanimously of all charges apart from count 2.
Ground 1 – failure to separate the charges based on A’s evidence
In determining whether evidence of the offences against A were indeed admissible at the trial of counts 4 to 9, it is necessary to examine the evidence relating to them, and evidence bearing on them, in more detail.
Count 1 was described by A as the first touching of a sexual nature of her by the appellant. It occurred on New Years Eve 1980. On that night the three girls had stayed home, watched television and slept in the living room of the family home. The appellant and his wife, the mother of B and C, had gone out. The three girls were sleeping in sleeping bags, in a line, with A in the middle. A was awakened when the appellant entered the room. She saw him standing near to where she was sleeping. She described how he took her hand and helped her to stand up. He then hugged her around her waist, touching her bottom as he did so. She could smell that he had been drinking liquor. He then kissed her on the mouth using his tongue. He then left the room. There was no suggestion from A that either of the sisters awakened during this incident. Nor did they claim to have seen it.
However, in her evidence B said that she recalled four occasions when the appellant entered the bedroom shared by the three girls over that period, positioned himself, kneeling, on A’s bed, and placed his hands under her quilt. He would be at her bed for five to ten minutes. B described being in an upper bunk of the room and in a position to observe this. After the appellant left the room she heard A quietly sobbing. During A’s stay with the family, the appellant did not assault B in her bed, as she described him doing on many other occasions. She explained that the position of the trundle bed in which A slept, adjacent to B’s bunk bed, made it difficult for him to reach her own bed.
C did not claim to have seen any offences committed against A. Like B, C described an extensive history of offending against herself, commencing well before A’s visit to the family. C gave evidence of the appellant coming into the bedroom she shared with B when the girls were in bed, and seeing him standing on the ladder which gave access to B’s bed. She would hear rustling of bedding and heavy breathing. Sometimes as he left the bedroom, the appellant would give C “a backhander” across the face. On other occasions the appellant came to C’s bed and touched her body under her pyjamas. Often the touching of her would be rough and painful. Often she would resist him, or at least attempt to. Sometimes he would threaten to kill her if she told anyone of his activities. Both B and C gave evidence to the effect that B was the appellant’s favourite daughter and did not suffer the physical abuse and generally harsh treatment given C.
It is unnecessary to set out the facts which were alleged in proof of count 2.
Count 3 was described as occurring in the kitchen of a restaurant, which was part of a tourist venture run by the appellant and located on the property where the family resided. A said in evidence that she entered the kitchen looking for B, who worked in the restaurant. She said that she became aware of the appellant’s presence when he put his arms around her waist. He then pulled down her underpants and penetrated her vagina with his finger. She said at various stages he was either behind her or in front of her.
It was open to the jury to find that this incident was witnessed by B. B described an occasion when she had been working in the restaurant and was putting away the last of the dishes. It was about 10 or 10.30pm. She said her father escorted her into the adjacent kiosk area, which had a wooden door with glass at the top. She was told to be quiet and to watch and that he was going to show her “something special”. She was instructed to kneel or stand on a chair so that she could look through the glass into the kitchen. The appellant then left that area, going out of her view for three or four minutes. Shortly, B saw A sitting, or supporting herself, on a bench in the kitchen, with the appellant standing in between her legs, spreading them widely apart. B said she was repulsed and upset by what she saw and left her vantage point. Eventually the appellant came back to where she was and told her that she was allowed to go to bed.
A said in evidence that there were other (uncharged) occasions when the appellant sexually assaulted her, including one when he inserted his fist into her vagina. However, she could give no details about that incident, or others which she said she knew had occurred.
Admissions by appellant
It is convenient at this point to set out evidence concerning admissions said to have been made by the appellant in respect of his conduct towards A and B. A clinical psychologist, Ms Prouse, gave evidence that in the course of conversations with the appellant arising from proceedings in the Family Court, the appellant told her that while he denied any sexual contact with A, “[A] was a very clingy girl who used to sit on his lap and she used to kiss him and maybe some of the kisses were inappropriate, but that was all”.
Another clinical psychologist, Ms McNichol, told the court that she interviewed the appellant in 1997, again as a result of a reference from the Family Court. Ms McNichol told the court that A had witnessed an incident in which the appellant had been touching B’s breasts. When asked about allegations made by A, he denied them. But he also said that he had kissed her more affectionately than would be considered normal. The appellant admitted to sexual abuse of B to two of his former wives. To one former wife he admitted the sexual abuse occurred on a number of occasions over a period of eighteen months. He admitted to Ms Prouse that he sexually abused B on four or five occasions over the course of a year. He admitted to Ms McNichol that he viewed B as his girlfriend and that he touched her on her breasts and vagina. None of these admissions made to the psychologists were challenged by counsel for the appellant in cross-examination. The appellant did not give evidence upon his trial.
The arguments on appeal
Plainly, B’s evidence of observing offences committed upon A, charged or not, was relevant and admissible in respect of counts 1 to 3. I do not understand the appellant to challenge that position. The appellant seemed to accept in argument that the evidence of offending against B and C had at least some probative force in considering count 1, in that it tended to render explicable that the appellant would brazenly commit that offence in front of his two, apparently sleeping, daughters, safe in the knowledge that they were inured to such behaviour and would not expose him. However, he contended that the prejudicial effect of such evidence was significant and outweighed its probative force.
In addition, the appellant conceded that A’s evidence going to count 3 (the kitchen incident), considered along with B’s evidence of what she saw in the kitchen, was relevant to prove the sexual nature of the appellant’s relationship with B and so admissible in relation to the counts 4 to 6, in which B was the complainant.
However, the appellant contended that all the other conduct complained of by A, that is counts 1 and 2 and uncharged acts described by her, had no relevance to either B’s relationship with the appellant, or any of the charges concerning B. More emphatically it was put that, leaving aside count 1, C’s evidence had no relevance at all to A’s charges, and that A’s evidence was irrelevant to the charges based on C’s evidence.
Analysis in relation to the joint trial
It was not suggested that the charges were not properly joined in one Information, in accordance with s 278 Criminal Law Consolidation Act 1935. It was accepted that, ordinarily, allegations by multiple victims of sexual offences should not be tried together if there is no cross-admissibility: De Jesus v The Queen (1986) 61 ALJR 1.
In my view, counsel’s analysis of the matters relevant to an order for separate trials, involving a compartmentalising of charged and uncharged acts and focussing on individual counts, would be apt to lead to an over-technical and erroneous result in terms of ordering separate trials.
I say that because, once it was accepted that in the case of each girl, uncharged acts described by that girl were admissible, then there was no particular reason to discriminate subsequently between her charged and uncharged allegations when directing on the proper use of that girl’s evidence in respect of other charges. The primary use of the uncharged acts which each girl described being committed upon herself, was as to the charges in relation to that girl. The evidence of such acts went directly to the credibility of the person complaining of them. Ultimately, the evidence tends to explain the entirety of the relationship between the alleged offender and the complainant. It enables a better assessment by the jury of the truthfulness and accuracy of the complainant’s evidence: HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, per Gleeson CJ at [8]-[9], Crennan J at [480] and Kiefel J at [513]; R v IK (2004) 89 SASR 406 per Doyle CJ at [50], per Vanstone J at [143]. In this case it had the more specific uses required of it by Gipp v The Queen (1998) 194 CLR 106 and R v Nieterink (1999) 76 SASR 56 to justify its admission and these uses were put to the jury by the trial judge. It is unnecessary to enumerate those, as there was no complaint about the admission of the uncharged acts, insofar as they bore on the charges concerning that same complainant. Once it was accepted that one girl’s relationship with the appellant was relevant to conduct of the appellant with respect to another girl, then the whole of the evidence going to prove that relationship became relevant.
Count 3, the kitchen incident, provides a good example. The appellant’s conduct, his confidence and desire to position B at the kiosk door to view sexual activity between himself and A, becomes more comprehensible when considered against the background of the entirety of his relationship with B. Similarly, his confidence that he could procure A’s co-operation in presenting “something special” for viewing by B, is explicable when it is known that he had an established relationship of sexual abuse with A. Therefore, on the basis of the kitchen incident, all the evidence going to the appellant’s relationship with each of A and B was relevant and admissible in respect of count 3. But further, through that incident, the evidence of both A and B became relevant, in a more general way, to the other charges in which they were the complainants. If, for example, A’s evidence as to count 3 had the effect of reinforcing B’s credibility in relation to that count, then it also had the effect of reinforcing B’s credit generally. In that way A’s evidence was relevant to all B’s allegations. By parallel reasoning, all B’s evidence became relevant to an assessment of A’s credibility.
Since C’s evidence was directly relevant to proof of the charges based on B’s evidence, that too was admissible in any trial of the charges concerning A and B. In order to explain C’s inaction at what she observed done to her sister, the whole of her evidence, including the threats against her, became admissible. If the whole of the evidence of the appellant’s dealings with all complainants was to go before the jury, then it would have been illogical not to allow a trial by that jury of all the charges on the Information.
The question of admissibility of A’s evidence in a trial of the charges based on the evidence of B and C is also capable of resolution by reference to count 1 alone. Once A gave evidence to the effect that the charge was committed upon her in the presence of B and C, then the appellant’s relationship with B and C became relevant. A jury might have found it inexplicable that the appellant would take the risk of committing count 1 in the presence of his daughters, even if they were thought to be sleeping, unless he had reason to think that it would not matter if either child observed his actions. Once the jury learned of the entirety of his dealings with B and C, then it would be in a much better position to assess the truthfulness and reliability of A in her evidence about count 1.
It is true, as counsel for the appellant sought to argue, that had the matter rested on the first count alone, there would have been a question for the judge as to whether the prejudicial effect of the B and C material would have outweighed its probative value. (My own view is that such a question could only be properly resolved by admitting the evidence.)
In considering questions of balancing probative value against prejudicial effect, another factor comes into play. That is the issue of requiring victims of sexual abuse to give evidence about such matters more than once. Where that can be, properly, avoided, it should be. I refer to the remarks of King CJ in R v Arthur (1991) 163 LSJS 18 at 21:
There were, on the other hand, strong considerations in favour of a joint trial. There were, of course, the usual considerations of the additional expense, congestion of court lists, and inconvenience to witnesses involved in separate trials. What was most important, however, was the necessity which separate trials would impose upon the children giving evidence twice. There is a clear public policy, in my opinion, which is now generally recognised in the community, against requiring children to give evidence recounting alleged sexual incidents, on more occasions than the interests of justice strictly require.
White and Bollen JJ concurred in those reasons.
However, the matter did not rest on count 1. B’s evidence to the effect that she witnessed four incidents of indecent dealings with A by the appellant in the bedroom was critically relevant to the jury’s evaluation of A’s evidence. Again, the jury might wonder whether the appellant would risk performing such acts in the presence of B, unless they knew of his relationship with B. The need for a joint trial of the charges was, in effect, dictated by the fact that the allegations against the appellant were of criminal offending often committed in the presence of another witness. Indeed, the prosecution might have argued that a striking feature of the conduct of the appellant was his apparent desire to perform indecent acts in front of an audience of others, also abused by him.
I mention two further matters relevant to the issue of joinder. As I related, the prosecution case was not presented on the basis that the evidence of each girl was admissible by way of propensity evidence. Consequently, this court did not consider the evidence in this light. However, it is plain in my mind that, at least, the evidence of the two sisters would have been admissible on that basis. That is implicit in the concession of counsel at trial that there could be a joint trial in relation to the counts based on the evidence of B and C. So far as the evidence of A is concerned, it is sufficient to say that I think the argument in favour of admission on a propensity basis would have been a strong one.
The other matter which I mention in this context and which was not argued before us is the significance of the admissions said to have been made by the appellant. At the time this evidence was admitted, it would not have been known whether the appellant would challenge it in any way. A challenge to the fact that admissions had been made, or to the evidence of the detail of them, would have made it necessary for the jury to have the whole of the evidence going to those admissions. In particular, the evidence of the two psychologists, Ms Prouse and Ms McNichol, contained admissions said to have been made in respect of both A and B. In some cases, that of itself could be a factor indicating that a joint trial of such charges should be held. Some parallels might be drawn between such a case and the circumstances in R v McDonald (1979) 21 SASR 198 where a number of housebreaking charges, not considered to be similar fact evidence, were dealt with by one jury, because the admissions going to them were allegedly made in one police interview. It is not necessary to elaborate on this point since, as I say, it was not relied upon at trial, or during the appeal.
Ground 2 – direction as to the use of A’s evidence

The appellant argued that the trial judge erred in his directions to the jury in that he left it open to the jury to utilise all of the evidence given by A, when considering proof of count 3 and the nature of the appellant’s relationship with B. The direction was in the following terms:
You may use the evidence of the charged and uncharged acts in respect of [A] when considering [B]’s evidence that the accused arranged that she – [B] – should watch him sexually abusing [A] in the kitchen. Does the evidence that he had sexual contact with [A] while he knew [B] was watching explain that he had a very familiar sexual relationship with [B]? Does [A]’s evidence of what she says happened in the kitchen, and which [B] says she watched, shed light on the relationship which [B] had with her father?
As I have already said in relation to the first ground of appeal, in my view, all the evidence of A could be drawn upon in considering A’s evidence going to count 3. A’s evidence as to that incident, so evaluated, had relevance to the nature of the appellant’s ongoing sexual relationship with B. Obviously B’s own evidence, including about the kitchen incident, also threw light on that relationship. While it was both A’s and B’ evidence of the kitchen incident itself which was directly relevant to proof of count 3, all the evidence of both girls was available to the jury in their consideration of the credibility of each as regards proof of count 3 and generally. It would have been quite unrealistic and misleading to instruct the jury that in considering the charges based on B’s evidence, the only aspect of A’s evidence of any probative value, and which it could draw on, was the account she gave of count 3.
At the risk of repeating myself, A’s evidence bearing on count 3, had to be evaluated in the context of the entirety of A’s evidence of the appellant’s dealings with her. Her evidence then bore not only on count 3 but also on B’s relationship with the appellant.
The jury would have understood from the judge’s directions as a whole that they were not entitled to use any of the evidence to prove a propensity in the appellant to sexually assault young girls. They were specifically warned against reasoning in that manner by clear directions given by the judge.
Ground 3 – use of the proven charged and uncharged acts
As I understand this ground of appeal it complains that the judge directed the jury that they could use any proven charged or uncharged act, in relation to any complainant, in proof of the charges concerning any other complainant. The direction complained of was in the following terms:
Ladies and gentlemen, before you could use any of the uncharged acts in the way I have set out, you must first be satisfied beyond reasonable doubt that the uncharged acts occurred. Only if you are so satisfied – that is, beyond reasonable doubt – that they occurred may you use the evidence of them, and if you are so satisfied, you may use the evidence of them only in the ways in which I have directed you. In the same way, you may use evidence of acts charged in respect of any one of the girls when considering whether the prosecution has proved any of the acts charged in respect of one of the other girls only in the way in which I have just directed you. Again, you can only use evidence of the charged acts in the way in which I have directed you if you are satisfied beyond reasonable doubt that the charged acts occurred. (emphasis added)
In my mind this ground of appeal is not well founded. The words within the direction which I have italicised clearly indicate to the jury that use of any act in proof of another act is confined by the directions earlier given. The purpose of this particular direction is, plainly, to direct the jury that before using any charged or uncharged act in respect of another count, the jury would need to be satisfied of it beyond reasonable doubt.
In terms of the earlier directions given, the only one about which complaint was made was that which was the subject of ground 2.
The judge clearly told the jury that except for instances where he specifically directed the jury that it could make use of charged or uncharged conduct in relation to other charges, the charges must be separately considered.
In summary, I consider that the summing up was carefully and conservatively framed in the way in which it allowed use of one complainant’s evidence in respect of any charge based on evidence of another.
Conclusion
None of the grounds of appeal have succeeded. The appeal must be dismissed.
ANDERSON J. I agree that the appeal should be dismissed for the reasons given by Vanstone J.
DAVID J. I have read the reasons of Vanstone J and agree that the appeal should be dismissed.