R v LKB

[2017] SASCFC 7

Supreme Court of South Australia

(Court of Criminal Appeal)

R v LKB

[2017] SASCFC 7

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Auxiliary Justice Chivell)

16 February 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND PROVISIONS - PARTICULAR LEGISLATION - OTHER JURISDICTIONS

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

Appeal against conviction. Appellant found guilty by a jury of persistent exploitation of a child contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA). Where all sexual acts alleged were capable of being particularised so as to enable their being charged as specific sexual offences. Where complainant made prior inconsistent statements. Where complainant did not come up to proof on one of the particulars of the charge.

Whether a charge against s 50 can only be laid on the basis of sexual acts which are incapable of particularisation to the extent that they could not be charged as specific sexual offences under other provisions of the Act. Whether verdict unreasonable or cannot be supported having regard to the evidence.

Held per Vanstone J (Kourakis CJ and Chivell AJ agreeing): Appeal dismissed. Charge of persistent sexual exploitation of a child may contain allegations of sexual misconduct which are capable of sufficient particularisation to found specific offences, or those which are not, or a combination of both.  The verdict was not unreasonable.

Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
R v N, SH [2010] SASCFC 74, not followed.
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Owen v South Australia (1996) 66 SASR 251; S v The Queen (1989) 168 CLR 266; S v R (1992) 58 SASR 523; R v Chiro (2015) 123 SASR 583; R v Livingstone (2011) 109 SASR 380, considered.

R v LKB
[2017] SASCFC 7

Court of Criminal Appeal:   Kourakis CJ, Vanstone J and Chivell AJ

1. KOURAKIS CJ:        I would dismiss the appeal for the reasons given by Vanstone J.

2. VANSTONE J:     After a trial in the District Court before judge and jury the appellant was found guilty of persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). He now appeals against that conviction on two grounds.

3. The first ground raises the question whether a charge pursuant to s 50 can only be laid on the basis of sexual acts which are incapable of particularisation to the extent that they could not be charged as specific sexual offences under other provisions of the Act. The second ground is a complaint that the verdict is unreasonable or cannot be supported having regard to the evidence.

4. As will be seen, I have concluded that a charge pursuant to s 50 may be based upon allegations of sexual exploitation which are incapable of particularisation, or upon allegations of sexual offences which are capable of sufficient particularisation so as to be separately charged, or a combination of both. How such allegations are charged is a matter for the Director of Public Prosecutions. Furthermore, in my opinion the verdict in this matter was not unreasonable.

   Background

5. The prosecution alleged that the offending occurred between 22 January 2000 and 31 July 2002.  The complainant, whom I shall call “V”, turned five years of age on the first mentioned date.  The alleged course of conduct was particularised in the Information in the following way:

   It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:

   (a)    inserting his finger or fingers into [V’s] vagina, on more than one occasion;

   (b)    licking [V’s] vagina, on one occasion;

   (c)    attempting to insert his penis into [V’s] vagina on one occasion; and

   (d)    touching [V] on the vagina on one occasion.

6. At trial, V gave no evidence in respect of particular (c).  In respect of the conduct underlying particular (d), the complainant alleged penetration.

   Ground 1: Interpretation of s 50

7. It may be accepted for the purposes of this ground that any of the alleged incidents could have been sufficiently particularised, so as to justify a charge for a separate sexual offence. The appellant argues that, for that reason, they could not amount to acts of sexual exploitation in terms of s 50.

8. At the close of the prosecution case defence counsel submitted that there was no case to answer.  It was put that since the only incidents led in support of the charges were able to be particularised, they were not acts of sexual exploitation.  The trial Judge ruled against that submission and the case proceeded. 

9. I now set out the relevant parts of s 50:

   50—Persistent sexual exploitation of a child

   (1)An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.

   Maximum penalty: Imprisonment for life.

   (2)For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.

   (3)If—

   (a)     at any time when an act of sexual exploitation of a child was allegedly committed the child was at least 16 years of age; and

   (b)     the defendant proves that he or she believed on reasonable grounds that the child was of or over the prescribed age at that time,

   the act of sexual exploitation is not to be regarded for the purposes of an offence against this section.

   (4)Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:

   (a)     subject to this subsection, the information must allege with sufficient particularity—

   (i)the period during which the acts of sexual exploitation allegedly occurred; and

   (ii)the alleged conduct comprising the acts of sexual exploitation;

   (b)     the information must allege a course of conduct consisting of acts of sexual exploitation but need not—

   (i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or

   (ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;

   (c)     the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—

   (i)in relation to the child who is allegedly the subject of the offence against this section; and

   (ii)during the period during which the person is alleged to have committed the offence against this section,

   must be charged in the alternative.

   (5)A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.

   (6)This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section.

   (7)In this section—

   prescribed age, in relation to a child, means—

   (a)in the case of a person who is in a position of authority in relation to the child—18 years;

   (b)in any other case—17 years;

   sexual offence means—

   (a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or

   (b)an attempt to commit, or assault with intent to commit, any of those offences; or

   (c)a substantially similar offence against a previous enactment.

   …

10. The appellant argues that the expressions “an act of sexual exploitation” and “a sexual offence”, as used in s 50(2) are mutually exclusive. In other words, subsection (2) creates a dichotomy comprising those acts which can and those acts which cannot be properly particularised. It is said that the inference that flows from the phraseology of the subsection is that, if an offence can be properly particularised, then it is not an act of sexual exploitation and may not be charged as such. The allegations made in this case each answer the definition of “sexual offence” in s 50(7) and accordingly, could only be charged as specific sexual offences provided in other sections of the Act.

11. Mr Mead SC, for the appellant, referred to several decisions of this Court touching, but not determining this issue.  In R v N, SH [2010] SASCFC 74 the Court consisting of Sulan, Anderson and David JJ said at [11] that if the conduct alleged amounted to identifiable offences, then it was appropriate to charge those offences rather than resorting to s 50. In R v Livingstone (2011) 109 SASR 380 this Court expressed the view that an ability to fully particularise an incident did not preclude the incident from forming part of the conduct comprising the acts of sexual exploitation for the purposes of the charge: [28]-[29]. Then in R v Chiro (2015) 123 SASR 583 the Court rejected a submission that where sufficient particularisation of allegations was available, the Director should charge specific sexual offences, as opposed to a s 50 offence: [6]-[14]. With the agreement of Kelly J and David AJ, I said at [9]:

    It can be accepted that (in its earlier iteration) s 50 was introduced into the CLCA for a particular purpose. But there is no indication in the section of any constraint upon the Director's power to utilise it. Indeed, s 50 contains provisions dealing with the way in which charges against the section are to be framed, and it contemplates that specific charges may be either included in the s 50 particulars or charged separately in the alternative: s 50(4). Therefore I consider that whether s 50 is to be utilised falls within the ambit of the Director's discretion, and his decision regarding that matter may not be reviewed by this Court.

    Mr Mead submitted that these authorities were of limited assistance as none dealt with a situation where the charge contained only allegations that were sufficiently particularised to enable charges of specific sexual offences to be laid.  He appeared to accept the premise that, had the Information contained a combination of allegations which were not capable of particularisation, as well as others which were, the trial Judge could properly have found a case to answer. 

12. When questioned about how s 50(4)(c) sat with his argument, Mr Mead submitted that subsection (4)(c) could be seen as supporting his argument, because Parliament contemplated that specific sexual offences might be charged in the same Information as a s 50 charge, although only as alternatives to the s 50 charge. This was consistent, he submitted, with conduct amounting to either sexual exploitation, or a sexual offence, but not both.

13. The appellant also referred to the second reading speech in respect of the Bill introducing the offence under consideration:  South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1474.  There, the Honourable MJ Atkinson, Attorney-General, said:

    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.

    Mr Mead drew attention to the following passage:

    The Bill proposes to replace the current offence with a new one of persistent sexual exploitation of a child. The new offence focusses on acts of sexual exploitation that comprise a course of conduct (persistent sexual exploitation) rather than a series of separately particularised offences.

    …

    The Bill provides that those parts of the course of conduct that can be charged as specific offences against the Act may be charged on the same information as the charge of persistent sexual exploitation of a child, as alternatives to that charge. Importantly, it prevents a person who is convicted of a charge of persistent sexual exploitation being convicted or punished for the same conduct twice.

    Mr Mead argued that although the latter passage spoke more to Parliament’s intention than to identification of the mischief at which the provision was aimed, it was nonetheless available as a tool of statutory instruction. 

14. In my opinion a consideration of the text, context and purposes of s 50 indicates that the appellant’s argument must fail.

15. The manner of drafting s 50 mingles two concepts. On the one hand there is the conduct it proscribes; which is that conduct which amounts to a “sexual offence” as defined in s 50(7). That takes in most offences found in Part 3, Division 11 of the Act, their predecessors and attempts to commit them. Then, s 50 introduces the rules of practice and procedure concerning particularisation. It creates an offence which neutralises those rules so far as acts in relation to a child which, but for the want of particulars, could be subject of a charge of a sexual offence. Naturally the interaction of those two concepts, so clearly separated in terms of content, requires close attention. However, neither the text of s 50 nor its context, support the appellant’s argument of a dichotomy as between that conduct which can and that which cannot be properly particularised. A consideration of the clear purpose of the enactment of s 50 – grounded in the cases which preceded it, notably S v The Queen (1989) 168 CLR 266 and S v R (1992) 58 SASR 523 – demonstrate that, far from aiming to hamstring prosecutions for allegations of sexual offences against children by the imposition of arbitrary rules, the Parliament intended to free such prosecutions from the more universal constraints applying to prosecutions for the whole gamut of offences.

16. The words upon which the appellant relies as establishing a dichotomy are found in s 50(2). That subsection is not structured as a definitional section in the strict sense. It provides that acts of sexual exploitation may include acts which are not able to be properly particularised. However, contrary to the appellant’s argument, the words “could, if it were able to be properly particularised” do not imply that acts which can be so particularised are excluded. The plain meaning of the wording is that the section is to widen the circumstances in which certain sexual conduct can be the subject of a charge. There is no implication that this offence may only apply to conduct which could not already be charged. The rules regulating particularisation are complex and fact sensitive. It will not always be clear at the time of charging whether conduct is sufficiently identified so as to justify a charge of a sexual offence as defined in s 50(7). It would be novel, counterproductive and entirely unsatisfactory to define the ambit of an offence by reference to whether the conduct constituting it could be properly particularised. In some cases that would not be known until a judge ruled on that question. The text of s 50(2) does not call for such an interpretation.

17. A consideration of the balance of s 50 is also against the appellant’s argument. Subsections (4)(c) and (5) each provide protections to an accused person which are only necessary and appropriate if conduct can simultaneously amount to a sexual offence and an act of sexual exploitation. Subsection (4)(c) provides that an Information may contain a charge against s 50 as well as one or more for sexual offences, or other offences. However, charges for sexual offences allegedly committed in the same timespan as the s 50 offence must be charged in the alternative. Plainly, this provision protects an accused person against being convicted twice for charges founded on the same facts. Implicitly this subsection acknowledges that a sexual offence capable of proper particularisation might be among the acts of sexual exploitation alleged as part of the s 50 charge.

18. Similarly, subsection (5) protects a person against subsequent charges for sexual offences against the same victim during the period covered by an earlier charge against s 50. Were the appellant’s argument made good, there would be no risk of double jeopardy if the accused person later faced charges for specific sexual offences within the timespan of the earlier s 50 offence.

19. As foreshadowed, reference to the purpose for which s 50 was enacted does not assist the appellant. The purpose of s 50 and its predecessor is well known. The original offence was enacted in the face of decisions which quashed convictions for sexual offences because of inexactitude in identification of the conduct to which such convictions related. It was perceived that witnesses were at a distinct disadvantage when relating events which occurred in their childhood and which were often of such a nature and frequency as to preclude adequate description.

20. The second reading speech referred to by Mr Mead reflects that mischief.  It is the description in extrinsic materials of the mischief being addressed – as opposed to the Minister’s prognostications of the way in which the provision is expected to operate – to which the court is entitled to have regard:  Owen v South Australia (1996) 66 SASR 251; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408. The purpose identified was to create an offence which facilitated the prosecution of criminal conduct which might not otherwise have answered the procedural requirements. The appellant’s construction of s 50 would give rise to both surprising and unworkable results. It would create a situation where criminal conduct was defined in terms of complex and changing procedural rules the application of which would not necessarily be ascertainable until the time of trial. Having regard to the text, context and purpose of the provision, it is clear that the reference in subsection (2) to the procedural requirement of adequate particularisation is not designed to confine the content of a s 50 charge, but rather to extend it.

21. The rules of statutory construction do not favour the conclusion for which the appellant argues. In my opinion charges against s 50 may contain allegations of sexual misconduct which are capable of sufficient particularisation to found specific offences, or those which are not, or a combination of both.

    Ground 2:  Complaint that the verdict was unreasonable

22. During the period in which the offence was alleged to have occurred V was aged from five to seven years.  At the time she gave evidence she was 21 years of age.  During the relevant period V was living with her mother and the appellant was a neighbour and friend of V’s mother.

23. Before the jury it was an agreed fact that in August 2002 V had made allegations against the appellant and had been interviewed by a police officer.  In October 2002 the appellant had been arrested and charged with one or more sexual offences against her, but those charges had not proceeded.  In November 2012 V renewed certain allegations to police.  In June 2014 she made a further statement.  The matter went to trial in July 2016.  The trial was short.  Only V, her mother and a detective gave evidence.

1. The conduct making up the charge was referred to during the trial as “the bedroom incident” (particulars (a), (b) and (c)), “the piggyback incident” and “the kitchen incident” (particular (a)), and “the beach incident” (particular (d)).

2. V said that the first incident in time, the piggyback incident, took place when she was five and during the occasion of a barbeque at her mother’s home.  She described the appellant touching her vagina both outside and inside the labia while giving her a piggyback in a nearby paddock.  Afterwards the appellant told V not to say anything to her mother or her mother would hit her with a strap.  V said that this was a common punishment of her when she was a child. 

3. V then described an incident which took place at her home when she was six or seven and when the appellant was babysitting her.  She said he put her on the kitchen bench, pulled off her underwear and touched her vagina, including “briefly” inside the labia. 

4. The bedroom incident was said to have occurred a year or so later.  V said that she was at the appellant’s home when he placed her on his bed, pulled off her underwear and performed cunnilingus on her, as well as touching and “briefly” inserting his finger or fingers into her vagina.  When questioned whether the appellant touched her with any other of his body parts, V said “No”. 

5. The final incident was said to have occurred at a beach.  It was alleged that the appellant was with V’s uncle and other family members camping at that beach.  He was said to have taken her for a walk, laid her down on some moss, taken off her underwear and touched her vagina with his fingers, including “briefly” inside the labia. 

6. As mentioned, the appellant did not give evidence at trial.  Accordingly, V’s evidence of the four incidents was not contradicted by other evidence.  In these circumstances the appellant relies on what are suggested to be inherent improbabilities in her evidence and inconsistencies between what she said at trial about the incidents and what she had said previously.

7. In support of this ground the appellant drew attention to the manner in which V claimed the memories of the offending had come to her.  V referred to “flashbacks” and memories which were revived some years after the offending.  She conceded that her memory of events was not very clear and that it was difficult to cast her mind back 14 to 16 years.  She said that the memories had been coming back to her since she was 16 years of age through nightmares, touches and smells.  Her memories came in “dribs and drabs”.  She explained that in some way she had blocked out the memories.  Counsel argued that the way in which V claimed the memories had arisen and her acknowledgment that for many years she had had no memory at all of these incidents should have given the jury “significant pause for thought”. 

8. The appellant also pointed to V’s failure to mention to police in 2002 when she was 7 years of age anything about the piggyback incident or the kitchen or bedroom incidents.  V’s first complaint to her mother was quite general.  The terms of what she said to the police in 2002 were not before the jury; although V agreed in cross‑examination that she did not set out these specific incidents.  However, in re‑examination she said she did not recall what she had said to police at that time.  Then, the appellant pointed to a contradiction between V’s evidence and that of her mother.  Her mother denied ever having hit V with a strap.  Therefore, on the face of it, there was a direct contradiction between them.

9. Counsel referred to V’s failure to tell police about the beach incident during either of the interviews in 2002 or 2014.  It was only disclosed to police on the Sunday prior to the trial.  To police V did not allege digital penetration during this incident.  In evidence she did.  When cross‑examined on the variation V said that details were hard to recall.  In my view, little flows from this discrepancy.

10. In opening, the prosecution said that the prosecution case was that during the bedroom incident the appellant performed cunnilingus on V, digitally penetrated V and attempted to insert his penis inside V’s vagina.  In evidence V said the appellant performed cunnilingus and digitally penetrated her during this incident, but she did not assert any attempted penile penetration as alleged in particular (c).  Mr Mead argued that this was the most serious allegation on the prosecution case yet V did not make it in evidence.  He conceded the difference in accounts was not put to V in cross‑examination.  This could well have been a decision made by the defence counsel for tactical reasons.  In any event, in those circumstances, arguably, little could be made of an inconsistency between what she did say, as against someone else’s assertion about what she would say. 

11. It was noted that there was a difference between the evidence of V and that of her mother as to whether “piggybacking” was mentioned in the first conversation in which there was a complaint or in the second, which followed shortly thereafter.  Further, the appellant relied on a number of inconsistencies as between V’s previous statements and her evidence in court, as well as what were suggested to be inherent improbabilities relating to the manner in which some of the unlawful touchings occurred. 

12. In my view none of the matters raised by the appellant are of such a nature as to engender real doubt as to the credibility of the complainant.  Indeed, a number of them are typical of the sort of variation which almost inevitably creeps into accounts of such events where they occur over a period and where the witness is asked to give evidence of them some years after the event.  Moreover, there was significant support for V’s evidence in the evidence of her mother.  Her mother gave evidence that after the first complaint to her she confronted the appellant with the allegations.  The appellant’s response was to admit touching V’s vagina while piggybacking her, but to claim it was accidental.  There was no challenge to the mother’s evidence on this point in cross-examination.  That “admission” tended to support V’s memory as reliable.  The jury was entitled to view the appellant’s recollection of what he asserted to be an accidental touching as rather surprising in view of the lapse of about two years since the event occurred.  Why would he have reason to remember it if it were innocent?

13. In addition, the asserted omissions and inconsistencies – many of which were acknowledged by the prosecuting counsel in admissions of fact – were referred to at some length by counsel and by the trial Judge in his summing up.  For instance the Judge, in addressing the jury, repeatedly highlighted the discrepancy between particular (c) on the Information alleging attempted penile penetration, and the absence of evidence of conduct comprising particular (c).  For instance, the Judge said:

    However, the fact that the prosecution has failed to prove the alleged act of attempting to insert his penis, remains relevant on the defence case.  You see, it is relevant to the assessment of the credibility and reliability of the complainant.  If you find that she had told the police that it occurred, but did not say anything to you about it, then this goes to her credibility and reliability as a witness.  She is hardly likely to have forgotten if it were true.

    You may accept that when she opened the case for you and told you that the complainant would tell you about the accused attempting to insert his penis, Ms Barnes did so on the basis of what the complainant had told the police.  This failure to mention it to you on oath is therefore still relevant to your assessment of her credibility and reliability as a witness.

    As can be seen the judge directed the jury that this inconsistency was available to them for use as a prior inconsistent statement.  The Director disputes the correctness of this position.  There are said to be inconsistent statements in this Court about whether a witness may be contradicted by what is said in a prosecutor’s opening (see R v MAS (2013) 118 SASR 160 at [91] and R v A (2012) 113 SASR 146 at [29]). In view of the directions given by the judge - benefiting the appellant – it is not necessary to grapple with that issue. All these matters were left to the jury for assessment. None of them was such as to necessarily cast doubt on V’s honesty or her reliability.

14. Furthermore the Judge gave a strong warning to the jury of the care that was required before a verdict of guilty could be entered.  His Honour said:

    No-one else in the house knew anything of these allegations until the complainant raised the piggyback incident about two years after it allegedly occurred. Because of the uncorroborated evidence of the complainant; the time which has elapsed since this matter allegedly occurred; and something to which I will refer tomorrow, namely a possible forensic disadvantage to the accused, I caution you that you must scrutinise her evidence with great care before you can be satisfied beyond reasonable doubt that it is both truthful and reliable. Now that is not to say that you cannot rely on her evidence alone to convict. You can. But before you do that you must scrutinise her evidence with great care because that is the test here, the prosecution must satisfy you beyond reasonable doubt that her account to you is both a truthful and reliable version of the facts.

    In circumstances where V gave sworn evidence of the unlawful touchings, where one aspect of that evidence was supported in a material particular by an admission made by the appellant to V’s mother, where the Judge gave a clear warning to the jury of the need to scrutinise V’s evidence and where V’s evidence was uncontradicted by other evidence, the task of demonstrating that the verdict was unreasonable is a monumental one.  My own appreciation of V’s evidence judged from reading the transcript leads me to the view that, although there were a number of inconsistencies between her several accounts of the incidents and her evidence, none was of such a nature as to cause any misgivings about the entitlement of the jury to act on her evidence.

15. In my opinion it cannot be said that the verdict was unreasonable. 

    Conclusion

16. Neither of the grounds of appeal has been made out. 

17. The appeal should be dismissed. 

18. Pursuant to s 69A of the Evidence Act 1929 (SA) the name of the appellant is suppressed from publication, as publication of it might lead to identification of the victim.

19. CHIVELL AJ:   I agree with the reasons of Vanstone J, and with the orders she proposes.