R v L, Ta - [2010] SADC 35

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v L, TA
[2010] SADC 35
Reasons for Ruling of His Honour Judge Stretton
12 March 2010
CRIMINAL LAW
Application for mistrial - alleged inappropriate questioning by prosecutor - questions relevant.
Held - application refused.

R v L, TA
[2010] SADC 35

Counsel for the defence has sought a mistrial.
All are aware of the general nature of this case, the allegations of the Crown concerning the offence and the primary issues to be tried. I will not repeat them in detail now. In short, the case involves an allegation that in 1988 at a residential care unit for boys, the accused, a manager of that unit, indecently assaulted the victim by rubbing his bottom and genitals while the victim was showering.
During the cross-examination of the accused certain questions were asked which defence counsel now submit will require that a mistrial be ordered and accordingly this trial abandoned.
In the course of cross-examination[1] prosecution counsel questioned the accused on the topic of whether he would go into the bathroom when boys were showering, and if he did so what would be the reason for that, and what might he do when in the bathroom with a naked boy. He was asked, amongst other things, whether he thought it was wise to go into the bathroom whilst a boy in his care was showering naked, and the like. It is not suggested that any of those topics were objectionable. The prosecutor then asked the following questions:
[1]    At p 185 et seq.
Q.    Did you sometimes give boys massages at the unit.
A.At times I – the lads would be in the lounge room and I might have given them a neck massage or a shoulder massage, yes, but again it wouldn’t happen a lot.
Q.    How would that come about.
A.Usually, the kids sort of must have known that I could do that, I don’t know, occasionally they would ask for it.
Q.    What expertise or experience had you in massaging.
A.    None at all really.
Q.    What might have led the kids to believe that you could give massages.
A.I presumed they, they either learnt it from another kid or whatever, but again it wasn’t a regular thing.
Q.    Did other staff give massages.
A.Because we were shift work I wouldn’t have known necessarily. I can’t recall of anybody else doing that but they may have.
The question was initially a general one as to the accused’s practice, if he had one, in relation to massages. The answer to the question was that the accused would give massages but in other areas of the house, and he discussed what might occur there. The cross-examiner then asked a few more questions about that. None of these questions were objected to by defence counsel.
The topic of the massaging had arisen previously in the trial, albeit in a minor way, in two contexts. When the alleged victim gave evidence[2] of the allegations of inappropriate touching in the shower, he described the event in the following way:
A. He come into the bathroom and washed me from the ankles up to the chest, shoulder area and basically it was more like a massage than a wash and he – like I said, he’d spend more time around my groin area and butt area and stuff than he would anywhere else, to the point where it would give me an erection and stuff.
[2] At p 36.
It is of note that the alleged victim said that the indecent assault in the shower was “more like a massage” than a wash.
The next and only other prosecution witness, Lindsay Packer, a worker in the unit at the time, was asked about whether there was a practice of massaging boys and, if so, to what extent it could be legitimate. That evidence occurred at p 127 of the transcript. In summary, Mr Packer said whilst you might pat a boy on the back of the neck to comfort him if he had been in a fight, that was the limit of it.
Prosecution counsel submits that the question to the accused concerning any practice of massaging boys was legitimate cross-examination for several reasons. Firstly, that the topic of massaging was relevant to the complainant’s evidence that that was what was done to him in the course of the alleged indecent assault. Further, that it was a live issue at the trial in that the other worker at the unit was asked about the practice as a part of the prosecution case. Further, that the accused’s attitude to the legitimate touching of boys at around the time would be a permissible topic of cross-examination in a case where illegitimate touching is alleged. The prosecutor also submits that there was no material prejudice, in that no offences or inappropriate conduct with other boys was alleged.
I will not attempt to repeat defence counsel’s very comprehensive submissions. They were all made very recently and are clearly set out in the transcript. In short, he submits that the question introduced unacceptable prejudice to the accused in that it might be thought that, because of his admitted practice of occasionally massaging boys in 1988, he was to use counsel’s words “a bit of a sleaze bag” or had a propensity to indecently assault boys.
Defence counsel further submit that they have been procedurally embarrassed in that if they had known that these questions were coming they could have examined the issue and objected in the absence of the jury, but they had been prevented from doing so. Defence counsel also submitted that the Crown has impermissibly split its case and that the cross-examination was also unfair in that if the accused had denied the massaging, the Crown could have sought to put to the accused evidence he gave in a previous trial of other charges or in an unled portion of a record of interview whereby he admitted such massaging. Defence counsel submitted that the cross-examination amounted to the introduction of impermissible propensity evidence.
The starting point is that the accused is entitled to a fair trial. A fair trial is one where the accused has to meet only relevant and admissible evidence, and evidence where the probative value is not outweighed by potential prejudicial effect. Where evidence is introduced for whatever reason that results in a prejudice to an accused that cannot be cured by direction and where the Court accordingly concludes that there is a material risk of a miscarriage of justice or an unfair trial, in my view a mistrial must be ordered.
As Debelle J said in R v Andrews and Ors (No 4)[3]:
The overarching principle is that the accused are entitled to a fair trial according to law. The Court has a discretion to discharge a jury where it believes that there has been a mistrial or a miscarriage of justice: R v Gray (1977) 17 SASR 534 at 539; R v Boland [1974] VR 849. When exercising that discretion, the Court may have regard to the length of time which the trial has already occupied and any inconvenience and the cost of another trial. Much depends on the nature and degree of the prejudice to the fair trial of the accused: see R v Gallagher (1987) 29 A Crim R 33 at 40 – 41 and R v Boland (supra) at 866. Another relevant factor is whether the prejudice can be cured by a direction from the trial judge.
[3] [2005] SASC 300.
Turning to the circumstances of this matter, I note that the application has come late in an albeit short trial. That is no-one’s fault, the evidence only arose late in the trial. I bear in mind that it is also a historical alleged sexual offence, involving an alleged victim who, I think, as I observed to counsel at the time of his giving evidence, suffered some considerable humiliation and distress in recounting his allegations to this Court. If a mistrial is granted, the alleged victim will need to go through it all again. There is also an important principle, of course entirely subservient to the requirement for a fair trial, that cases proceed efficiently and in a timely way wherever practicable, in the interests of everybody.
I turn firstly to the question of relevance. Matters of particular significance here are that the central allegation in the case is of inappropriate touching in a particular way, in the shower. The prosecutor asked a question about whether or not the accused had a practice of massaging boys, and did so in the context of asking the accused about his conduct in bathrooms with boys. This was against a backdrop of the alleged victim claiming that the indecent assault in the bathroom was massage-like. In those circumstances, in my view, the question in cross-examination had relevance. Also in my view some scope should be allowed in cross-examination to examine matters which may or may not have relevance, depending upon the answer.
An additional aspect of this matter is that there was no objection to the question. Had the first general question asking the accused whether he massaged boys been objected to, then questions of relevance and the like could have been dealt with at that time. If the question had been disallowed as irrelevant, the jury could have been brought back in and simply told that the topic was not relevant and that there was no evidence on the topic. If counsel regards a question as likely to elicit material prejudicial enough to cause a mistrial, it is in my view highly desirable that it be objected to there and then. If such objection is successful not only is no answer given, but also no further questioning on the topic will occur. I do not regard that aspect as ultimately determinative, but it is part of what happened.
I turn now to the issue of prejudice. Disclosure of other offences or instances of bad character will of course enliven a discretion to discharge the jury.[4] The material here falls far short of disclosing other offences.
[4] R v Glennon (1992) 173 CLR 592 at 60; R v Koppen (1975) 11 SASR 182 at 185; Maric v The Queen (1978) 52 ALJR 631 at 634; R v Fricker (1986) 42 SASR 436 at 439.
What the question alleged was not an illegal activity, nor was it suggested that it was contrary to any departmental guideline or principle at the time. The carers stood “in loco parentis” and had a close ongoing legitimate relationship with the boys. In that respect, I do not conclude that a jury would necessarily think that the conduct, admitted by the accused in response to the question, would necessarily be regarded by a jury as inappropriate.
There is however a possibility that some might think that a shoulder massage performed at the request of a fully clothed youth in the lounge room or indeed of youths generally in the unit may have been unwise, however I do not think there is any prejudice additional to or distinct from the detriment to the accused’s interests involved in the probative force of the evidence.[5]
[5] See The Queen v Duke (1979) 22 SASR 46 per King CJ at 48.
Had it been denied, defence counsel submits that the prosecutor could have sought to put any inconsistent statement that they might have had access to, whether from a previous trial or in an unled portion of the record of interview. That may be, but a question can scarcely be objectionable on the basis that a witness may feel constrained to answer accurately due to having answered the same question on oath on a previous occasion.
I can indicate that I would almost certainly have ruled that the Crown could not put anything in a way that might indicate that there had been a previous trial of other charges or that there were suspiciously excised portions of records of interview in existence.
Had the accused denied ever having had a practice of massaging boys, and had the prosecutor sought to lead evidence of any previous inconsistent statement, then the issue of whether the prosecution was attempting to ‘split its case’ and call evidence it should have called as part of the prosecution case would have arisen.[6] That point was never reached, as the accused admitted the practice. Until an application arose to put an allegedly inconsistent previous statement, no basis to object arose.[7]
[6] See The Queen v Soma [2003] HCA 13 at [36]-[37].
[7] Ibid at [32]; R v J, JA [2009] SASC 401 at [120]; R v Tanner [2006] SASC 320 at [50].
I have considered all the matters put by defence counsel and ultimately cannot conclude that there will be material prejudice to the accused.
I therefore hold that the cross-examination was relevant, admissible and that there was no impermissible prejudice. Accordingly I reject the application for a mistrial.
I would be prepared to clearly direct the jury as to the ways that they should not use the massage evidence. In particular, I would direct them that they should not reason that the evidence indicates a propensity to inappropriately massage boys or a propensity to commit the kind of offence alleged here. If, on the other hand, defence counsel would prefer that attention not be further drawn to the issue and ask me not to give such a warning, subject to anything the prosecutor may wish to put I would be prepared to favourably consider that course.