R v M, BJ
[2011] SASCFC 50
•7 June 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v M, BJ
[2011] SASCFC 50
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice White)
7 June 2011
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - OF COUNTS - BY STATUTE - SAME FACTS OR SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - PROCEDURE - SUMMING UP
Appellant found guilty of persistent sexual exploitation of his daughter, gross indecency in the presence of his two sons and assault on his daughter and one son - whether all charges properly joined on one information - whether trial judge should have ordered separate trials - whether the evidence on some or all counts was cross-admissible - discussion of principles and authorities on cross-admissibility - whether judge's directions as to use of evidence on each count in respect of other counts were adequate - discussion of principles and authorities relating to jury directions on multiple counts - whether jury was required to agree on particular acts comprising the sexual exploitation charge - whether conviction on one count was uncertain - whether verdicts were unsafe and unsatisfactory.
Held - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 50, s 278; District Court (Criminal and Miscellaneous) Rules 1992 R 9; Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 (SA); Criminal Code Act 1899 (Qld) s 299B, referred to.
R v Kray [1970] 1 QB 125; R v Garrett (1988) 50 SASR 392; Ludlow v Metropolitan Police Commissioner [1971] AC 29; R v Tedesco (2003) 85 SASR 66; R v Liddy (2002) 81 SASR 22; R v Nieterink (1999) 76 SASR 56; R v McDonald (1979) 21 SASR 198; R v Schlaefer (1984) 37 SASR 207; R v Dolan (1992) 58 SASR 501; Question of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214; M v The Queen (1994) 181 CLR 487, applied.
R v N, SH [2010] SASCFC 74, distinguished.
Hoch v The Queen (1988) 165 CLR 292; R v Makin (1893) 14 LR (NSW) 548; Thompson v The Queen (1989) 169 CLR 1; Martin v Osborne (1936) 55 CLR 367; Director of Public Prosecutions (UK) v Boardman [1975] AC 421; Perry v The Queen (1984) 150 CLR 580; Sutton v The Queen (1984) 152 CLR 528; Moorov v His Majesty's Advocate [1930] JC 68; B v The Queen (1992) 175 CLR 599; BRS v The Queen (1997) 191 CLR 275; Bull v The Queen (2000) 201 CLR 443; R v Tucker (1984) 36 SASR 135; Gipp v The Queen (1998) 194 CLR 106; Roach v The Queen [2011] HCA 12, discussed.
Pfennig v The Queen (1995) 182 CLR 461; Phillips v The Queen (2006) 225 CLR 303; KRM v The Queen (2001) 206 CLR 221; KBT v The Queen (1997) 191 CLR 417; Alford v Magee (1952) 85 CLR 437, considered.
R v M, BJ
[2011] SASCFC 50Court of Criminal Appeal: Sulan, Vanstone and White JJ
SULAN J: I agree with the reasons of Vanstone J. I would dismiss the appeal.
VANSTONE J: After an eight day trial the appellant was found guilty by verdicts of a jury of all counts on an information charging persistent sexual exploitation of a child, assault (three counts) and gross indecency (three counts). The victims were his daughter and two sons. The period spanned by the charges was more than four years. In respect of each child evidence was led of acts which were not charged.
The appellant now appeals against the convictions, arguing that the charges were not properly joined and that in any event they should have been the subject of orders for five separate trials; that the directions given to the jury going to the permissible and impermissible uses of evidence on each count in respect of other counts were inadequate; that the conviction for one of the counts is uncertain; that the directions on the elements of the sexual exploitation charge were inadequate and that, for all these reasons, there was a miscarriage of justice. Permission to appeal has been granted only in respect of ground 1, raising the issue of the directions on the sexual exploitation charge. Permission on ground 11 was refused and the ground not pursued. All other grounds were referred to this Court.
Background
I shall refer to the three complainants as A, C and D. A, the appellant’s daughter, was born in 1992. She was close to 18 years of age at the time of trial. C, the eldest child, was about two years older. D, the second son, was about two years younger than A. He was aged 16 years at the time of trial and was attending school.
Some fourteen types of sexual assault were given as particulars of count 1, the persistent sexual exploitation charge based on A’s allegations. In her evidence she described innumerable sexual assaults committed upon her by her father from the time when she was aged 12, to the month before his arrest on 2 September 2008. Apart from non-invasive indecent touchings, A described vaginal, oral and anal intercourse and penetration of her vagina with a pipe. On some occasions intercourse occurred over her protestations of his hurting her. A also described the appellant shaving her public hair, showing her pornography once or twice a month and making her stimulate him and ejaculating onto her body. He provided her with a vibrator and told her to use it when alone. These assaults were said to have taken place in most rooms of the family home, as well as in the garage, the family swimming pool and in the appellant’s company motor car. Often other family members would be close by.
A said that while at first she was confused and sickened by this conduct, over time she became inured to it and she began to tell herself that it was normal. She said she was frightened of her father and that on occasions when she did not co-operate he would insist and would block her attempt to leave or pull her to where he wanted her or hold her down. Therefore some of the sexual offending involved violence. He was also violent to her in a non-sexual context. On one occasion – the subject of count 2 – he punched her hard to the face with his fist, because she and her brother laughed when their mother reprimanded them. She was unable to attend school that day as a result. D gave evidence of this incident too.
A said that one of the reasons she did not complain was because, from an early stage, the appellant told her not to tell anyone; if she did it would split the family, he would have to go to gaol and it would be her fault.
The older son, C, was the complainant in four counts, being two of gross indecency and two of aggravated assault. Count 4, gross indecency, was described by C as the appellant’s “version of sex education”. There it was alleged that the appellant called C to the home computer and showed him a pornographic movie and zoomed in on an image of a woman’s vagina. He pointed to part of the screen and said “If you want them to keep coming back for more this is what you should play with because it gives them the most pleasure”. C was 12 years old at this time. He showed C more movies of the same type, then took him out to the garage and produced a pornographic magazine, told him how to masturbate and directed him to go upstairs and do so.
C described other pornography shown to him by the appellant, via various media, including depictions of bestiality. Count 5 constituted the showing to C of a video clip in which an apparently dead woman was suspended by chains from rafters, upside down, while a hooded man inserted objects into her vagina.
Counts 6 and 7 were charges of aggravated assault on C. In support of count 6, C said that, after arguing with the appellant downstairs in the home, he went upstairs. The appellant yelled at him to come back downstairs but he did not. The appellant then followed and, finding C’s bedroom door locked, punched it until it gave way. C described the appellant coming into the room and hitting him repeatedly to the head with a closed fist and then with an open hand. A too gave evidence of this incident.
Count 7 was referred to during the trial as the “sticky keys” incident. According to C that name comes from Microsoft and refers to a process by which certain computer keys can be programmed to cause a beeping noise when pressed. C said that on the occasion of count 7, when he was 16 years old, he was using the home computer and causing it to make this noise. His father, who was in an adjoining room, asked him what he was doing and he replied “sticky keys”. The appellant apparently thought that answer impudent and asked again. He was given the same response. The appellant then approached C, smashed a table he was using and hit his head a number of times, causing him to fall to the floor. D also gave evidence of this incident.
All three complainants gave evidence of the appellant using a belt and one or more canes to “discipline” them.
Count 3, gross indecency, was the only charge in which D was the complainant. He said that he was first shown pornography by the appellant when he was 12. It was on the home computer. After that he was regularly shown it, by means of the computer, or the appellant’s telephone, on the appellant’s laptop, or in magazines. Sometimes C was present as well. He described some of the subject matter. Count 3 was based on D’s account of the appellant showing both D and C a video clip entitled “Two girls, one cup”. He said it showed (among other things) two women eating human excrement. In his evidence C said he had also been shown what must have been the same video clip, but thought that D was not present.
Grounds of appeal
The notice of appeal contained some 14 grounds. Ground 11, was not pursued before this Court.
The main focus of the attack on the convictions was on the propriety of joinder of the seven counts and the failure to order separate trials in relation to each complainant and each different type of charge in relation to each complainant. It was said that the evidence of each complainant was inadmissible in respect of the charges arising from the other complainants. It was further argued that, in the absence of orders for separate trials, the convictions were vitiated by the failure to direct the jury on the permissible and impermissible uses of all the evidence. While the judge directed in relation to the use to which the jury could put evidence of uncharged acts, there was no direction going to the proper and prohibited uses of the evidence of one charge in consideration of other charges. The balance of the grounds raises discrete issues which I shall outline later in these reasons.
Since questions of joinder, orders for separate trials and permissible and impermissible use of evidence are inextricably bound up with questions of admissibility, there was an inevitable merger of issues when the grounds were argued. I propose to deal with the grounds in what I see as natural groupings.
Grounds 3, 4 and 5 – ruling on joinder and refusal to order separate trials
Ground 3 complains that the judge erred in determining that the seven charges on the information were properly joined in terms of s 278 of the Criminal Law Consolidation Act 1935 (SA) (CLCA). That determination involved a finding that there was cross-admissibility as between the charges of all complainants, to which ground 5 refers. Ground 4 complains of the failure to order separate trials as a matter of discretion.
Returning to ground 3, it was argued that the charges could not be said to be either “founded on the same facts” or such as to form “a series of offences of the same or a similar character”, as required by that section. Counsel for the appellant, Mrs Shaw QC, relied on statements of principle in R v N, SH [2010] SASCFC 74 and the High Court cases of Pfennig v The Queen (1995) 182 CLR 461 and Phillips v The Queen (2006) 225 CLR 303, insofar as the determination of that issue involved a determination of matters of admissibility. Mrs Shaw pointed to the fact that the charges on the information comprised three different categories with little by way of legal ingredients in common. She argued that the basis upon which the prosecution contended that the evidence on the charges and uncharged conduct was cross-admissible was flawed and that, properly analysed, there was no cross-admissibility as between the seven charges.
Before dealing with these arguments, I should remark that at the trial, defence counsel then acting for the appellant, did not argue that the seven charges were not properly joined in terms of s 278(1) of the CLCA. The matter was a little complicated because, until the first day of the trial, the appellant was facing an information containing 27 counts, the four alleged victims of which included the appellant’s former wife. Four of the counts alleged that the appellant had raped his wife. The charges based on A’s allegations were specific counts of unlawful sexual intercourse, indecent assault and assault. Prior to trial the appellant had filed an application pursuant to Rule 9 of the District Court Rules seeking orders that the 27 counts were not properly joined in terms of s 278(1) and seeking an order that there be four separate trials upon the information, being one trial in relation to the allegations of each complainant.
However, on the first day of trial, when argument on the Rule 9 notice was to take place, the Director of Public Prosecutions presented a fresh information containing the seven counts on which the appellant was later convicted. While maintaining that the original information met the terms of s 278 of the CLCA, the Director effectively conceded that an order for a separate trial should be made in relation to the allegations of the appellant’s wife. In the face of the new information, defence counsel chose not to persist with the argument on s 278(1), but to seek orders for separate trials pursuant to s 278(2) in relation to the allegations of each of the, now three, complainants and in relation to each of the two counts concerning A. In ruling on the new information, the judge noted that, while it was no longer contended by defence counsel that joinder of all seven charges was impermissible, he was nonetheless satisfied that the information complied with s 278. The judge went on to find that the proposed evidence of each complainant had relevance to the other charges other than via mere propensity. He said the evidence of each complainant was relevant to:
the nature of the relationships within the family; the use of and prevalence of aggressive and/or violent behaviour by the accused towards his wife and children as part of his attempted dominance over them. It may also potentially explain the complainants’ submission, acquiescence or silence in response to acts of violence, sexual assault or the display of pornography. It may also be relevant to explain and give a full and proper context to the behaviour of the accused in relation to each of the counts.
The end result is that the argument regarding s 278 taken in this Court is one which was not advanced at the trial. The same applies to the argument that the two different types of charges relating to C should have been the subject of a discretionary order for separate trials. I should add that although ground 4 complains of the judge’s failure to exercise his discretion to order separate trials, counsel conceded upon the appeal hearing that the question for this Court was whether a miscarriage of justice had resulted from all the charges being determined by one jury.
I now turn to the argument advanced in this Court in reliance on s 278 of the CLCA. It is convenient to set out the terms of the section. Subsection (1) has remained unchanged for many years. Subsection (2a) was introduced by the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 and came into effect on 23 November 2008.
278—Joinder of charges
(1) Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2) Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
(2a) Despite subsection (2) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a)subject to paragraph (b), those counts are to be tried together;
(b)the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim;
(c)in determining admissibility for the purposes of paragraph (b)—
(i)evidence relating to the count may be admissible in relation to another count concerning a different alleged victim if it has a relevance other than mere propensity; and
(ii)the judge is not to have regard to—
(A) whether or not there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant; or
(B) whether or not the evidence may be the result of collusion or concoction.
(3) This section does not affect any other provision of this Act or any other enactment permitting more than one charge to be joined in the same information.
(4) In this section—
sexual offence means—
(a)an offence against section 48, 48A, 49, 50, 56, 58, 63B, 68 or 72; or
(b)an attempt to commit, or an assault with intent to commit, any of those offences; or
(c)a substantially similar offence against a previous enactment.
Referring to s 278(1), I do not think it is suggested that the seven charges are “founded on the same facts”. The alternative formulation is that they be part of “a series of offences of the same or a similar character”. That means there must be a nexus between the offences and they must be of at least a similar character. It is probably true to say as a general proposition that the requirement for a nexus is met by reference to the facts alleged by the prosecution, whereas the need for the offences to be of at least similar character refers generally to the legal nature of the charges. However, the distinctions are neither clearly drawn nor rigid. There is no doubt that charges of a sexual nature and charges of violence and indeed false imprisonment may, depending on the case alleged against the accused, be seen as part of a series of offences having similar character: R v Garrett (1988) 50 SASR 392. In Garrett the appellant had been charged with three counts of rape, false imprisonment and assault against his former domestic partner (F) over a period of months, both during the time they lived together and subsequently. In addition the appellant was charged on the same information with the assault and false imprisonment of F’s male friend (G) after the relationship with the appellant had ended. In addressing the question of nexus, King CJ, with whom Jacobs and von Doussa JJ agreed, said (at 401):
I feel no doubt that the alleged offences of false imprisonment and assault against [F] were a part of a series of offences in the relevant sense. They formed part of a course of conduct, according to the case for the prosecution, extending through a large part of the association between the appellant and [F] and involving violence towards and domination of her. I think that the alleged offences of false imprisonment and assault committed against [G] are so connected with the alleged offences against [F] that they should properly be regarded as part of the series. Ordinarily false imprisonment and assault would not be thought of as offences of a similar character to rape. A similarity may arise, however, not only from the legal elements of the offences in question, but also from the facts which constitute them and the circumstances in which and the relationships out of which they arise. An important characteristic of the rapes alleged by [F] is the element of personal domination of her by the appellant. The false imprisonment and assault upon her alleged to have occurred on 4 October contain that same element of personal domination and are clearly linked with the allegations of earlier sexual violence. I think that they are sufficiently similar in character to be regarded together with the alleged rapes as part of a series of offences of the same or similar character. Again in this connection, I think that the offences alleged to have been committed against [G] are so linked with the alleged offences against [F] that they, too, should be regarded as offences of similar character to the alleged rapes.
In the quarter century or so since those observations were made the community’s understanding of the relationship between sexual offences and offences of violence has increased. It is now widely appreciated that sexual violence is violence of a particular kind, directed towards satisfying a particular desire. It is violence nonetheless. Accordingly, courts should be more ready to accept that offences of physical violence and offences of sexual violence committed against the same victim are intrinsically linked and may well lend themselves to a classification of a “series of offences of the same or a similar character”.
The former Chief Justice went on to say that admissibility of evidence of one charge in relation to the other charges is regarded as important in determining whether the offences are part of a series of offences of the same or similar character. He referred to R v Kray [1970] 1 QB 125 especially at 130-131; Ludlow v Metropolitan Police Commissioner [1971] AC 29 especially per Lord Pearson at 39. King CJ held that evidence of the incidents of sexual violence by the appellant upon F was admissible on the trial of the false imprisonment charge. That was because the evidence of sexual violence provided the setting and context in which the false imprisonment was said to have occurred. The false imprisonment charge and the offences against G were, on the prosecution case, motivated by jealousy and possessiveness and “an urge to continue the course of personal domination [of F by] the appellant which could be seen as having led to the earlier rape offences”. It was held that the trial judge correctly declined to order separate trials on those charges.
In R v Tedesco (2003) 85 SASR 66 this Court again considered the requirements of s 278 of the CLCA, in the context of an information containing two counts of rape, criminal trespass and assault. Employing an approach similar to that taken in Garrett, the Court focussed on the cross-admissibility of the evidence going to all four counts in determining whether the statutory criteria were met. In R v Liddy (2002) 81 SASR 22 at 52 Mullighan J (with whom Gray J agreed) said that cross-admissibility of evidence was a sufficient nexus for this purpose, though was not essential.
Ground 5 complained of the ruling that all counts on the information were admissible in relation to all other counts. Before turning to the ways the evidence of each complainant tending to prove an offence (charged or not) was admissible in proof of offences committed on the other complainants, I make some observations about the impact of the introduction of s 278(2a) on the principles of similar fact evidence. As I interpret that subsection, the evidentiary principles relating to the admission of similar fact evidence or improbability evidence as it is often called now, remain largely unaffected by this subsection. However, in two important respects, the clock has been turned back to, in effect, neutralise two significant developments of the rules of admissibility which were effected by the High Court in Hoch v The Queen (1988) 165 CLR 292. In order to set those two developments in context it is helpful to mention the general principles relating to similar fact evidence.
The exclusionary rule is that “evidence that reveals that the accused is a person of bad character is not admissible if it proves no more than that he or she has a general disposition or propensity to commit crime or crime of a particular kind”: Pfennig v The Queen (1995) 182 CLR 461 per McHugh J at 512, citing R v Makin (1893) 14 LR (NSW) 548; [1894] AC 57. However, similar fact evidence or propensity evidence may be relevant and admissible because of the light it throws on any of a number of issues in a case. For example, it might assist in proving identity or intention, or in disproving accident or mistake or innocent association: Thompson v The Queen (1989) 169 CLR 1 at 16.
The probative value of such evidence might arise from the fact that it bears striking similarities to the allegations made in relation to another offence for which the accused is on trial. But equally its strength might lie in the “‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ [which it reveals] such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution”: Hoch v The Queen (1988) 165 CLR 292 at 294-295. The process of reasoning involved is that of “admeasuring the probability or improbability of the fact or event in issue, … given the fact or facts sought to be adduced in evidence”: Martin v Osborne (1936) 55 CLR 367 at 385 per Evatt J. To put it slightly differently, there needs to be such a nexus between the various sets of allegations that they must either all be true or have arisen from “a cause common to the witnesses or from pure coincidence”: Director of Public Prosecutions (UK) v Boardman [1975] AC 421 at 444 per Lord Wilberforce.
The sole criterion for the admission of the evidence is the strength of its probative force, rather than any judgement that one or more of the labels mentioned above is apt to fit it: Hoch at 294. The degree of probative force required has been described as such that to exclude the evidence would be “an affront to common sense”: Boardman per Lord Cross of Chelsea at 456; and as such that it “clearly transcends its merely prejudicial effect”: Perry v The Queen (1982) 150 CLR 580 at 609 per Brennan J; Phillips v The Queen (2006) 225 CLR 305 at 320 per the Court. So far as it goes, this summary is unaffected by the new subsection.
In Hoch the plurality adopted a description of the test for admissibility put forward by Dawson J in Sutton v The Queen (1984) 152 CLR 528 at 564 to the effect that “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”. By s 278(2a)(c)(ii)(A) this consideration is no longer relevant. Therefore, whether this development was properly described as merely a mode of expressing the test, or, more likely, as a strengthening of the test, need no longer be debated in the context of sexual offences.
The second change (made by s 278(2a)) to the former law relates to the question of collusion or concoction. In Hoch (at 296) the majority held that, where there remained a real possibility of collusion between the witnesses making the similar allegations, the evidence they were to give would lack the degree of probative value necessary to render it admissible. It was held that where the evidence was capable of reasonable explanation on the basis of concoction it should be excluded. This came to be seen as requiring the trial judge to subject the evidence to something of a threshold test where there was any suggestion of concoction.
The removal of that requirement by s 278(2a)(c)(ii)(B) leaves the possibility of concoction to be determined solely by the jury. In other words, it restores the position prior to the decision in Hoch. As I understand it, there was never any rule of practice requiring a direction to the jury specifically on any possibility of concoction, let alone any requirement of a direction that the jury first exclude concoction before weighing the similar fact evidence. (That suggestion was made by counsel in the present case.) Of course where the suggestion of concoction was part of the defence case the judge might well have been obliged to give assistance to the jury about the significance of concoction as part of the duty to put the defence case and to give such assistance to the jury in terms of evaluation of the evidence as the case required. However, even then, there was (and is) no requirement to direct the jury that before considering the evidence it must exclude the possibility of concoction.
I shall now consider the issue of cross-admissibility. I start with the evidence given about the showing of pornography, being the subject of counts 3, 4 and 5 and the subject of one of the particulars of count 1. In my view all that evidence was admissible in relation to the similar claims made by each other complainant. First, the evidence of each complainant was admissible to prove that the appellant was in possession of pornography and therefore had the opportunity to show it to any of the three complainants. This is not a propensity use, but is evidence disclosing bad character. Then, the evidence of each complainant was admissible as similar fact evidence in proof of the similar allegations of the other complainants. Relevant to that conclusion is that it occurred within the same family setting against the appellant’s children. That of itself was an important similarity. In each case the conduct occurred in the absence of the appellant’s wife, or other adult person. In the case of the two boys, production of the pornography was done under guise of it being sexual education and advice. A was advised that she should not become “like” one of the women depicted. She said that after showing her the pornography, the appellant would do to her things similar to depictions in the pornography. The jury was entitled to take the view from the running commentary on the clips shown to D and the appellant’s apparent enjoyment of the idea that he had encouraged C to masturbate, that the appellant was deriving gratification from showing the pornography to his sons; in the case of A that display was clearly designed to gratify him. In my view the evidence of all three complainants was capable of demonstrating in the appellant an unhealthy, prurient, voyeuristic interest in his children’s sexuality, which in the case of A extended to indecent dealings. The evidence of each child raised the improbability of any of the events described by the other two having occurred other than as alleged by the prosecution. In my view the probative force of the evidence clearly transcended its prejudicial effect. It would have been an affront to common sense to deprive the jury of the allegations of all three witnesses in relation to pornography.
The evidence of A that she was shown pornography was not only an allegation forming part of count 1, but was inextricably linked with the indecent assaults and penetrative offences committed against her. If she were to be permitted to give evidence of being shown pornography in support of the gross indecency charges concerning her brothers, it would have been quite artificial to prevent A from giving evidence of the progression of the display of pornography into sexual offences against her. That evidence would not be directly relevant to the allegations comprising counts 3, 4 and 5, but it would be quite unrealistic to require A to restrict her evidence in the joint trial to her allegations about pornography. The jury would be entitled to hear the entirety of the sexual allegations she made against the appellant. Were it otherwise, the jury would receive an incomplete and distorted account of her relationship with the appellant. Additionally, there were certain parallels between her evidence and that of her brothers. The pretence to legitimacy of the appellant in providing sex education or information about sexual matters to his children was common to the accounts of C, D and A, as was his encouragement of each complainant to become sexually active; in the case of A, with him. Common to the accounts of A and D was that after masturbating in front of A and after showing pornography to D the appellant told each not to tell anyone as otherwise he would have to go to gaol. Again, evidence of those words and the context in which they were said was relevant and admissible in respect of the similar allegation of the other complainant.
Therefore, the entirety of the evidence going to counts 1, 3, 4 and 5 was admissible. I include in that the uncharged acts of showing pornography to C and D attested to by them. To the extent that count 1 did not comprehend all the sexual dealings described by A, I include the additional evidence.
The evidence of violence described by all three complainants, all uncharged in respect of D, was in my view admissible in relation to the sexual allegations made by each complainant. In other words, in considering the charges concerning any one complainant, evidence of violence suffered by, or observed by, that complainant was relevant and admissible. In respect of A there was a specific claim by her that she was frightened of her father. In her statement she also expressed fear on account of her mother, because the appellant expressed resentment about his wife’s presence impeding his activities with A, and because A had witnessed his violence towards her mother. Her fears could not but have been informed by violence she repeatedly witnessed to her brother C, and to a lesser extent to D and that she herself suffered. Further, I consider that this evidence was properly before the jury in respect of all the sexual charges. It tended to explain the way in which the appellant exerted control over his children, why they were compliant, in the case of the boys, in allowing him to show them pornography and to remain silent about it, and in his intrusion into their personal development with his own unhealthy and distorted interests. In the case of A, the evidence of violence in the household tended to demonstrate how the appellant could maintain such an exploitative and sometimes violent relationship with his daughter without fear of her exposing his activities. In respect of all three complainants it would be open to the jury to conclude that the assaults committed on each in the presence of one or both of the others had the effect of subjugating, controlling and conditioning each individual. What each child saw of the violence shown by the appellant to the other children was directly relevant to explain why that child tolerated violence and sexual dealings without resistance or complaint.
Evidence of this type has some parallels with the evidence described as “relationship evidence” by Mullighan J in Liddy’s case at [95]. Having referred to general observations of Doyle CJ in R v Nieterink (1999) 76 SASR 56 at 65 regarding the disparate ways in which evidence of other offending could be relevant and admissible apart from as similar fact evidence, his Honour said this, at [98]:
Furthermore, the evidence in the present case could show that the appellant developed over time a relationship with the complainants including sexual activities and talk involving him which they regarded as normal and unexceptional and would render the possibility of disclosure or discovery by others unlikely. The evidence is capable of establishing that the appellant indoctrinated and conditioned the boys to be accepting of such behaviour and to participate in it unquestioningly and enthusiastically. It may be readily seen that the purpose of the evidence was relevant to issues in the case, was strongly probative and went well beyond mere evidence of propensity.
By similar process of reasoning, I would not categorise the above uses of the evidence of violence as including a similar fact or propensity use. The evidence provided a context in which the sexual offending in relation to each of the three children occurred, but in as much as the violence appeared to be spontaneous and a function of ill temper, I would not say that evidence going to any assault charge reached the high degree of probative value required to render it capable of use as similar fact evidence in respect of the assaults upon the other children. Nevertheless, it remains cross-admissible for purposes related to relationship and subjugation.
The conclusion that all the evidence in support of each charge on the information was relevant and admissible in respect of the other charges reinforces the view that the charges formed part of a series and were of similar character. I consider that the trial judge was correct in his conclusion to that effect. It is not surprising that defence counsel at the trial did not argue that the charges were not properly joined in terms of s 278(1).
The conclusion in relation to cross-admissibility is also of great significance in relation to the complaint that the judge should have ordered, as a matter of discretion, a separate trial in respect of each charge. Cross-admissibility is an important factor favouring a single trial of all the charges. In addition, it is desirable to avoid the need for witnesses to give evidence on similar subject matter on repeated occasions. This would have been the result of orders for separate trials. In addition to the wider uses of the evidence of violence already described, there were also important, direct links between the complainants and the assault charges. For example, A gave eye-witness evidence in support of count 6, an assault on C. D gave direct evidence in support of that count and the other assault on C, namely count 7. D also gave evidence in support of count 2, the assault on A. Even leaving aside the other relevance of the body of evidence of violence, it would have been quite undesirable to require separate trials in which all complainants would give evidence in support of the assault charges against A and C. The spectre of the three siblings, each giving evidence against their father on artificially divided topics on at least two separate occasions is, of itself, suggestive of a flawed analysis.
Moreover, in this case there is another factor tending strongly in favour of one trial of all charges. It is that, at the outset when the appellant was interviewed by police, he immediately and forcefully raised the suggestion that the allegations were a result of his children’s collusion and concoction with his estranged wife. He maintained that position when he gave evidence at trial. For example, in evidence the appellant suggested his wife was dishonest and a liar. He said she encouraged dishonesty in the children. He said that his wife would have “instructed” D to say that the appellant had told him that the appellant and his wife did not, any longer, have sexual intercourse together; which was true. He suggested that his wife or C could have found on the internet the name of an escort agency in Melbourne which C alleged the appellant had told him he had used. The appellant said that the only explanation for the allegations made by A was that his wife had put A up to it. In my view, particularly where a defence to a series of charges relies on a suggestion of mutual concoction or conspiracy, or coaching, it is of the first importance that the jury have before it all the witnesses who it is suggested are involved. In that way the jury has the best opportunity to determine the truth of the allegations.
The case is analogous (although not perfectly so) with the circumstances considered in R v McDonald (1979) 21 SASR 198, where the appellant was convicted for ten counts of rape and three counts of attempted rape charged on the one information. There were similarities between the charges and the court concluded that joinder in terms of s 278(1) was justified. The only substantial evidence going to prove the identity of the appellant as the offender consisted of confessions said to have been made to police. In the reasons of King CJ and Sangster J, with which Cox J was in substantial agreement, it was held that it was appropriate to have a joint trial, not because the individual allegations of the women concerned were cross-admissible, but because they were linked by the alleged confession. The plurality said (at 203):
In our opinion no jury could properly consider the credibility of the police evidence in this case if only part of the whole picture were to be placed before it. The advantages of placing the whole picture before the jury were not all prosecution advantages; on the contrary the appellant could attack the police evidence at any point or points and any weakness disclosed would weigh with the jury with respect to the whole of the police evidence.
I consider that in much the same way, any weakness which the appellant in the present case was able to point to in the evidence of any of the complainants could have contributed to the defence theory of coaching or collusion. For these reasons I consider that the judge was correct in declining to order separate trials on any of the seven counts.
Although I would grant permission to appeal on grounds 3 and 5, I find that they are not made out. I would refuse permission on ground 4.
Grounds 6, 7 and 8 – directions on the use of evidence of charged and uncharged acts in respect of other charges
These grounds focus on the directions given to the jury as to use of evidence of both charged and uncharged acts in considering proof of another charge. It is said that, because the judge gave no direction to the jury in relation to proper uses of the evidence on any one charge in relation to the other charges, the jury were given “no assistance on the specific, limited and differing uses that could be made of the evidence on the other six charges (including evidence of any one of the twenty or more acts alleged to form part of count 1) when considering the evidence on any one charge”. It is said that there was no direction on the impermissible uses of the evidence of one charge in relation to the other charges, and that the jury was not directed not to draw conclusions about the “sort of person” that the appellant was, as a step in the reasoning process.
In relation to the gross indecency charges and that particular of count 1 that alleged pornography was shown to A, it was argued that if there were a potential for use of one count in respect of the others, then it was necessary to give a direction about “the improbability of similar lies”. Counsel argued that if there were potential similarities between these incidents, then those similarities had to be identified to the jury. It was argued that if the evidence of each boy as to being shown pornography were to be used in a similar fact way then it was necessary to direct the jury that, before using evidence of one complainant in respect of a charge based on the evidence of another, it had to exclude the possibility of concoction or contamination as between those two complainants. Counsel’s argument on use of one count with respect to another necessarily followed her argument on cross-admissibility for the purposes of joinder: that no count was relevant to any other count, with the possible exception of the gross indecency charges in respect of C and D. It was argued that the failure to direct that concoction had to be excluded before using the evidence of any complainant in support of another was particularly important in the context of the accounts of violence given by each complainant, because an actual incident could have been deliberately exaggerated by the children.
In relation to the directions on the uncharged acts, it was argued that the jury was not given sufficient instruction on the “specific, limited and differing uses” that could be made of the evidence of uncharged acts when considering proof of a charge. There was no direction on how the uncharged acts related to any particular count. It was further put that the judge erred when he directed the jury that “evidence about these uncharged events is available to you as material which may assist you in concluding that a particular witness’s evidence is reliable”. It was argued that, contrary to the judge’s direction, the evidence of violence on each complainant did not serve to explain why there was no earlier complaint, as the prosecution evidence did not directly support a theory that fear of the appellant’s violence was the reason that no complaint was made.
Ground 8 was a specific complaint to the effect that the judge should have directed the jury that D’s evidence regarding violence against him was irrelevant on all charges, there being no charge of any assault upon D. I have already found that violence upon D was relevant to the pornography counts concerning D and, in so far as the violence was observed by A or C, to their allegations. Accordingly, the premise underlying ground 8 is flawed.
The directions to the jury in relation to the uncharged acts comprised the following. I add paragraph numbers for ease of reference. In [i] and [ii] the judge explained what was the subject matter of the directions he was about to give.
[i]Let me deal with one of the issues that has been raised in the course of the trial and during arguments from counsel. It relates to the evidence that witnesses have given about events or episodes of things that have happened which do not form part of any charge. That is, there is no particular charge that relates to a particular episode. An example would be an allegation that a number of the witnesses made about the accused being violent and on the witnesses’ accounts, assaults or violent episodes or temper outbursts having taken place. Those events, for example, are not all the subject of charges.
[ii]There is also allegations within the material of episodes of pornography being shown to the children, which are not specifically the subject of any of the charges. They are examples of what I am telling you about. So within the trial you have heard evidence of these other acts or conduct, allegedly committed by the accused in relation to his children or former wife and they are not the subject of any charge.
He then explained that the material provided a context for the allegations.
[iii]Usually in a criminal trial evidence of other alleged crimes or wrongdoing do not come before you. You normally do not have that sort of material before a jury. In this case you have heard this evidence because it is considered to be potentially helpful and relevant to you in assessing all of the witnesses’ accounts. Bearing in mind they come from within the same family, they have described their own relationships with their father and with their mother and they have each described certain events that they say they witnessed, or which had some impact upon them. It is really before you in order to hear the whole of the allegations; to better enable you to understand the totality of their evidence and the context in which they make the specific allegations which are the subject of the charges.
The judge said evidence of the family interactions might assist in evaluating evidence of the charged conduct.
[iv]The whole of the alleged course of events within the family may provide a context in which it is said that the charged events happened. And so these uncharged events provide a context for the particular conduct which is said to amount to the charges. In a sense, the more evidence that you have about the interactions between everybody within the family and the accused it is thought that the better opportunity you will have to evaluate all of their evidence and determine to what extent, if any, you are prepared to rely upon them. And it is thought that the whole sequence of events throws light on the nature of the relationships within the family and what impact those events might have had upon later conduct.
[v]You need to understand that the evidence about these uncharged events is available to you as material which may assist you in concluding that a particular witness’s evidence is reliable. Alternatively, it may enable to you conclude that a particular witness’s description is inconsistent with something that other people say and, therefore, is unreliable. So it is a piece of material which you are entitled to use in your assessment of the witness’s accounts.
(italics added)
Then the judge explained the relevance of evidence of the appellant’s violence and the proper use of it.
[vi]The relevance of the evidence particularly relating to the accused allegedly being violent or committing assaults or threatening or losing his temper is relied upon by the prosecution in particular in a number of ways.
[vii]First, it is said to be relevant as tending to explain why the children were compliant with their father and why any of them, particularly [A], may not have complained about what was happening at an earlier time, soon after each of those episodes happened.
[viii]The evidence might also tend to explain why the accused expected [A]’s cooperation and silence in the face of what she said was occurring. The atmosphere of fear or control, as it has been put to you, is said to be relevant as to why she succumbed and submitted.
[ix]The evidence may also help you to understand why, against a backdrop of such events, particular witnesses might not be able to nail down exactly when some episode happened with precision because it happened within a background of similar episodes over a larger period.
[x]So what I have just described is the proper use for that material, to understand the context in which certain events happened or to understand why somebody behaved, or did not report a matter, in a particular way. So it helps you to understand the rest of the evidence.
The judge then applied a standard of proof in respect of the uncharged acts.
[xi]You must not use any of the evidence about these uncharged events unless you are satisfied that they happened and you need to be satisfied about that beyond reasonable doubt before you can start using any of that uncharged conduct in the background. So you need to apply the same test to that as you do to the charged events.
The judge then directed the jury on impermissible uses of the uncharged acts. He first instructed the jury that acceptance of the uncharged acts did not absolve it of the task of examining the evidence in respect of each charge.
[xii]I do need to let you know and warn you that the evidence of uncharged events in the background could be used by you in a wrong way and it is called an impermissible way. The fact that you have heard evidence about these uncharged acts which is said to be relevant to the background in the family, that does not absolve you of the responsibility of looking at the evidence in relation to each of the charged events. You still have to look at each count and examine the evidence in relation to each count. It would be completely wrong to reason or argue to yourself from the background ‘Well, I know there is a background and without applying the microscope to each event and analysing the evidence, I think that these events must have happened in a general way and, therefore, I am going to reason towards guilt based on just some general background acceptance of the allegations’.
The judge then directed the jury to analyse the evidence count by count and not to draw adverse conclusions about the appellant’s character and then use those conclusions in proof of the sexual offences. He said:
[xiii]You must still analyse carefully the evidence count by count. It would be also wrong and impermissible for you to conclude in some way that the accused is a bad person because of these allegations, or that even if he did these things, lost his temper or used force inappropriately on some occasions, that therefore he is a bad person and more likely then to have committed sexual offences against his daughter.
[xiv]You cannot reason in that way. You cannot say ‘Well, I’ll just bundle it all up together and I don’t think he is a good person and, therefore, I’ll start finding him guilty of the allegations of sexual offences’. The evidence of the background of his alleged disposition and temper and volatility is relevant to understanding what [A] and the other children say was their relationship with their father and why they reacted in certain ways, why they were compliant and why complaints might not have been made at an earlier time. That is the relevance and you cannot use it for the impermissible reasons that I have spoken of.
The judge then gave a direction about the permissible and impermissible uses of the evidence that the appellant possessed and admitted an interest in pornography. He said:
[xv]You have heard evidence from [the appellant] that he did possess and viewed pornography. There is also evidence before you in the agreed facts that pornography was located on the laptop computer and at the home.
[xvi]You might have a view about pornography and the viewing of it. You might be neutral about it. You might find it disgusting, or you might even approve. These are all personal matters for you, but whatever your personal view about it, the pornography issue has limited relevance and the fact that the accused was found to have pornography and the fact that he has given evidence about liking to view it is limited in its relevance.
[xvii]It is limited to the fact that there was pornography and you might consider that assists you in evaluating the evidence of the children when they say they were shown it. That is, it does not prove conclusively that just because he had it, that he did show it to them. But when each of the children has said to you in their evidence that they were shown it by their father, you might think it a little more likely that that might be true because of the evidence that he actually had an interest in having that material and had it in his possession and had some of it at home and had it on his laptop computer and may have accessed it on the home computer.
[xviii]It does not prove it conclusively. You cannot reason in that impermissible way by saying ‘Just because he liked to watch it himself, therefore he must have shown it to his children’, but you might find it is a helpful piece of evidence when evaluating the children’s evidence. But it is not a matter where you can take a moral view and make a determination about that just because you might disapprove of him using the pornography. It is potentially supportive of the children’s evidence in the sense of potentially making their allegations more likely.
The first question is what, as a matter of principle was required by way of directions. King CJ discussed this issue in R v Schlaefer (1984) 37 SASR 207. There, the appellant had been convicted by a jury for three counts of indecent assault, committed on a girl of seven, H, and a boy of ten years, L, who were the children of a woman with whom he’d had a brief relationship. The summing up lacked any directions about the use of evidence on each count in respect of the other counts. King CJ said, at 210-211:
Where on a trial of an accused person on more than one charge, the evidence in support of each charge is not admissible in proof of the others, there is need of a clear direction to the jury to guard against the risk of impermissible prejudice. If the evidence in support of each charge is admissible in proof of the others, an appropriate direction as to the permissible and impermissible uses of similar fact evidence is needed.
(references omitted)
King CJ (with whom Walters and Mohr JJ agreed) said that if the evidence of the girl complainant were not admissible on the counts concerning the boy complainant, the absence of a direction would be fatal. But the evidence was found to be cross-admissible as similar fact evidence, due to the strong parallels in the circumstances of the crimes. The first and second counts were upon H and arose from an occasion when H was in her bed and the appellant entered her bedroom. She gave evidence that she awakened to find him touching and licking her in the region of her vagina and that he then got on top of her and moved about until he ejaculated. Counts 3 and 4 were said to have occurred about a week later in the appellant’s caravan, which was located at his sister’s home, six or so houses away from the home of H and L. On this night the children’s mother had given permission for them to spend the night with the appellant in his caravan. Both H and L gave evidence that on that evening he showed them some magazines of a sexual character. H gave evidence that he acted towards her in a way similar to his previous conduct. The following night L spent the night at the caravan alone with the appellant. He slept in the appellant’s sleeping bag and said that the appellant played with his penis and procured the boy to play with the appellant’s penis. He applied cream from a tube to his hands and then placed his penis near L’s anus and tried to penetrate. L then fled from the caravan. It can be seen that the sexual conduct itself was not of a similar nature. Rather, the parallels found by the Court were related to the fact that the children were part of the same household and the way in which the appellant came to know them; his creating opportunities when he might interact with them at night, including inviting them to spend a night at his caravan and showing sexually explicit magazines to each of them. On that basis it was found that the charges were strikingly similar and had “an underlying unity comprehending and governing the separate acts” (citing Moorov v His Majesty’s Advocate [1930] JC 68). King CJ observed that this was a view that accorded with common sense. He had no doubt that the jury would have seen the matter in the same light. Therefore, the want of a direction as to how the various counts could be used was not productive of a miscarriage. As to the failure to warn against the impermissible use of the evidence as propensity evidence, again the Chief Justice did not find the absence of a direction productive of a miscarriage. He said, at 214:
The non-direction as to the impermissible use is a matter for greater concern. It seems to me, however, that the alleged offences were so interrelated that the issue of propensity, as distinct from legitimate probative tendency, did not really enter into the matter.
In R v Dolan (1992) 58 SASR 501 this Court was concerned with convictions for sexual offences committed against a girl. Part of the evidence led by the prosecution was evidence of other such conduct committed by the appellant against that girl. No direction was given as to what use the jury might make of that evidence. As to that, King CJ, who gave the judgment of the Court, said this, at 503:
In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury, it is encumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put. In a case such as the present, it is of the utmost importance that the jury should be clearly directed that the accused can be convicted on any count only if the jury is satisfied that the conduct which has been identified as the subject of that count occurred and that it is not permissible to convict the accused on the basis that, although the conduct so identified has not been proved, at least some conduct alleged by the alleged victim has occurred. The reason for allowing evidence of other incidents to go before the jury and the uses to which they can put such evidence should be clearly explained to them.
It may be seen that in terms of impermissible use, King CJ was particularly concerned that the jury be instructed that it was the counts on the information which must be proved and that mere satisfaction of the uncharged conduct was insufficient.
The High Court dealt with this principle in B v The Queen (1992) 175 CLR 599. The issue arose in extremely unusual circumstances. B was charged with sexual offences against his daughter dating back to the mid 1980s. During his trial the appellant volunteered evidence of his prior conviction for similar offences against the same daughter in 1984. His purpose, apparently, was to show that his daughter was attempting to exploit his previous conduct for her own purposes. All members of the Court allowed the appeal. However, the Court was divided on the proper use of the evidence. Mason CJ, Brennan and Deane JJ accepted that once the evidence of B’s prior conduct was admitted, it could be used by the jury as evidence going to the appellant’s guilt. In the joint judgment of Dawson and Gaudron JJ the view was expressed that the evidence was not admissible as proving sexual attraction to B’s daughter. Their Honours referred to the general principle that where evidence is admitted in a criminal case for one purpose, but is inadmissible for another purpose, the judge must direct the jury that it can only use the evidence for the purpose for which it was admitted, particularly where use beyond that purpose would be adverse to the accused: at 619. Stated in such broad terms, the principle is unexceptional. The critical factor in B, as found by the judges making up the majority view on this point, was that it was not open to B himself, having introduced the evidence, to restrict the use of that evidence by the prosecution and jury.
In BRS v The Queen (1997) 191 CLR 275 the High Court reversed a decision of the New South Wales Court of Criminal Appeal dismissing the appeal of BRS. The appellant was a schoolmaster and had been charged with sexual offences against a male student, H. During the trial, the appellant put his character in issue. In response to that, evidence was given, without objection, by another boy, W, first of a conversation with the appellant in which W claimed that the appellant had offered him the use of his room at the school if he wished to masturbate and then, of a later occasion when the appellant invited W to that room and there suggested that they simultaneously masturbate. On each occasion there was reference by the appellant to the use of KY jelly and a yellow towel kept under his bed. The same accoutrements were allegedly used by the appellant in his dealings with H.
The trial judge gave no direction to the jury in relation to W’s evidence. In the High Court it was accepted that W’s evidence was relevant and admissible as evidence rebutting the appellant’s evidence of good character. Differing views were expressed by each member of the High Court as to whether the evidence of W was also corroborative of H’s evidence, or amounted to admissible evidence of propensity. However, four members of the Court held that the failure to instruct the jury not to reason, on the basis of W’s evidence, that the accused was the sort of person who would engage in the charged conduct, meant that the convictions could not stand.
Brennan J, who would have dismissed the appeal, held that the appropriate directions about the use and misuse of W’s evidence could not have advantaged the appellant. Toohey J at 295 observed that without a clear direction in relation to the issues of corroboration and similar facts, or propensity, there was a likelihood that the appellant did not receive a fair trial “because the jury might regard his actions when with W as showing that he was the sort of person to engage in the conduct described by” H.
Gaudron J stated the principle in these terms at 301:
It is well settled that where evidence is admissible for one purpose but is inadmissible for another, the trial judge "should direct the jury that they must not use the evidence for the purpose for which it is inadmissible ... [if] the use of the evidence for that purpose would be adverse to the accused." Certainly, a direction of that kind must be given whenever necessary to avoid a perceptible risk of injustice. And in this case there was a clear risk that, unless instructed otherwise, the jury would make improper use of W's evidence, treating it "as indicative of a disposition to [sexual impropriety with young boys]" and using it as evidence of the appellant's guilt.
(footnotes omitted)
McHugh J at 305 described the duty upon the trial judge in these terms:
If evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful directions concerning the use which they can make of the evidence. If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose.
McHugh J went on to say that, had the judge referred to W’s evidence, he should have instructed the jury that it could be used only to rebut the appellant’s claim of good character and to corroborate H’s evidence concerning the use of KY jelly and the yellow towel. His Honour found that, in the absence of any direction, there remained a real chance that the jury might have employed what he referred to as the “forbidden reasoning” on the basis of W’s evidence. His Honour went on to find that notwithstanding that neither the judge nor the prosecutor invited the jury to reason in terms of propensity, that possibility remained. He said at 308:
… criminal courts take it as axiomatic that, where the evidence reveals the criminal convictions or propensity of the accused, there is a real risk that the jury will reason towards guilt by using the conviction or propensity. Because that is so, the trial judge must give a clear direction to the jury as to the use that they can make of the evidence. However, it does not follow that the failure to give such a direction always constitutes a miscarriage of justice.
McHugh J then set out what he said would have been a proper direction in this case (at 308). I reproduce only part of it dealing with the prohibited line of reasoning:
If you accept the evidence of W, you will probably have little difficulty in concluding that the accused is a person of bad character. But you must not use that finding to conclude that he is guilty of these offences because he is a person of bad character. In particular, you must not conclude that W's evidence indicates that the accused has a disposition to engage in improper sexual conduct with young boys and that it is likely therefore that he gave effect to that disposition by having oral and anal intercourse with the complainant. Nor, if you find that the accused made the suggestions and did the things which W said that he did, may you conclude that that makes it likely that he engaged in the sexual misconduct that the complainant described. W's evidence can only be used to rebut the accused's claim that he is a person of good character and to corroborate the complainant's evidence that the accused used KY jelly and a yellow towel that he kept under his bed for the purpose of masturbation. You cannot use W's evidence to conclude that the appellant is a person of bad character who is likely to commit offences of the kind with which he is charged.
Ultimately, McHugh J found that the failure to warn against propensity reasoning rendered the verdicts unsafe, as indeed did Kirby J.
The wide application of the principle under consideration is demonstrated by this statement of the majority comprising McHugh, Gummow and Hayne JJ in Bull v The Queen (2000) 201 CLR 443 at 463:
When evidence is tendered which contains matter that is wholly inadmissible by reason of an exclusionary rule of evidence such as the rule against hearsay, the rule against proving the criminal character or disposition of the accused or a statutory rule, a trial judge will often have to determine whether it has evidentiary value for some other purpose in the trial. If it has, the evidence may be admissible for that purpose although usually the jury, if there is one, has to be warned that the evidence can only be used for the admissible purpose and for no other purpose. Sometimes, it may be necessary to go further and specifically warn the jury that the evidence cannot be used as proof of a particular fact or issue or to reason in a particular way.
(footnotes omitted)
In R v Tedesco (2003) 85 SASR 66 the appellant was convicted of offences of rape (two counts) and assault, and acquitted of criminal trespass. The allegations were made by a woman with whom he’d had a relationship. The four charges arose from two different occasions three weeks apart. There was evidence of some uncharged assaults and other controlling behaviour at a time prior to the charges. In relation to the uncharged material the trial judge gave a direction that it was relevant to background, relationship and control, and a warning against using it to show propensity. However, no direction was given regarding the use of each pair of charges in respect of the other pair, and no propensity warning was given.
The Court held that, since the case rested on the evidence of one complainant only, no propensity warning was necessarily required. In respect of the uses of evidence of one count in relation to the proof of another, it was sufficient that the trial judge had instructed the jury to consider each count separately and not to reason from a finding of guilt of one count to guilt of another. Importantly, the Court held (at 75) that even if a propensity direction should have been given, the failure to do so was not productive of a miscarriage. It was said that the available use of the evidence on one pair of counts in respect of the other pair was obvious and the risk of propensity reasoning slight.
I shall now attempt a general statement of the principles. Where, in a trial, evidence is introduced tending to show bad character, the jury should be directed about the permissible and impermissible uses of that evidence. This principle applies whether or not the evidence is of offending having a direct connection with the charges. The evidence might go to prove a separate criminal offence, for example, the theft of a firearm later used in the charged event (R v Tucker (1984) 36 SASR 135); or it might be evidence of uncharged acts against the alleged victim (Gipp v The Queen (1998) 194 CLR 106; R v Nieterink (1999) 76 SASR 56; Roach v The Queen [2011] HCA 12); or it might be evidence designed to prove a propensity, as in Pfennig v The Queen (1995) 182 CLR 461.
The principle is perhaps of greatest importance where the evidence discloses offending quite separate from that involved in the charges (for example, similar fact evidence) and where the charges before the jury are made by more than one alleged victim.
Where the evidence introduced is relevant to some, but not all of the charges being tried, the jury should be directed as to the limited use of the evidence. That will usually necessitate setting out particular ways in which the evidence may legitimately be used, that is, the specific issues in relation to which it was admitted and its relationship to those issues.
If the evidence is relevant as similar fact evidence (using that term loosely) then the mode of reasoning involved in its admission and use should be explained.
Where there is more than one alleged victim, a warning against propensity reasoning will usually be required, irrespective of whether the evidence disclosing bad character is the subject of a charge before the jury, or is evidence of uncharged acts committed against one alleged victim, or is evidence of offending quite outside the charges. The warning against propensity reasoning might be along the lines of the following.
You may not use [X]’s evidence to conclude that the accused is a person of bad character and the sort of person who is likely to commit offences of the kind with which he is charged. That would not be a proper use of this evidence.
However, if the evidence of other offending (charged or not) is admitted as propensity evidence, then the warning will need to be in very general and limited terms, so as not to defeat the very reason for the admission of the evidence. As McHugh J said in KRM v The Queen (2001) 206 CLR 221 at 233 [32]:
What then is the position when the prosecution charges the accused with a number of sexual offences in the one presentment? If propensity evidence on each count is admissible in respect of the other counts in the presentment, a propensity warning could not be given except in some very limited way.
By way of example I quote the direction which the trial judge, Cox J, gave to the jury in R v Pfennig on 12 May 1992. In warning the jury against misuse of the propensity evidence his Honour said:
The [evidence that the accused abducted and sexually assaulted a boy 11 months after the victim’s disappearance] is, of course, discreditable to the accused. He has admitted kidnapping the boy and holding him prisoner in his van and in his house, and sexually assaulting him. It is very prejudicial evidence. However, it is not led against him in this trial for the purpose of blackening his character in a general way, or so far as sexual matters are concerned. To reason in that way would be to condemn a man simply on his record – in this case his subsequent record as it were – and that would be quite wrong.
No complaint was made about the terms of this direction or its sufficiency either in the Court of Criminal Appeal or the High Court.
In my view the trial judge in this case was required to give directions:
•as to the proper use of the evidence of uncharged acts concerning first, pornography, and second, violence;
These directions were given at [i] to [x] set out earlier.
Mrs Shaw asserted that on the basis of these directions the jury would have understood that they could use any uncharged act described by any of the three witnesses in relation to any charge made by any witness. She relied particularly on the italicised passage at [v]. In my view, on a fair reading of the directions relating to uncharged acts, the jury would have understood that uncharged acts described by any complainant were relevant to the charges relating to that complainant only.
•as to the use of A’s evidence of having seen assaults on C, as eye-witness evidence in support of count 6, as well as evidence relevant to her being subdued by the appellant and her submission to him;
Reference to A being a witness to other charged events was made by the judge.
Directions going to the wider use of the evidence were given, in general terms, at [iv], [v], [vii] and [viii].
•as to the use of D’s evidence of having seen assaults committed on C (count 7) and A (count 2) as eye-witness evidence in support of those counts as well as evidence relevant to him being subdued by the appellant and his submission in relation to the gross indecency charge upon himself;
Reference to D being a witness to count 2 was made by the judge.
Reference to D being a witness to count 7 was made by the judge.
Directions as to the wider use of this evidence were given, in general terms, at [iv], [v], [vii] and [viii].
•as to the use of the evidence of uncharged acts of violence upon D given by D himself as relevant to his being subdued by the appellant and his submission to the appellant in relation to count 3, the gross indecency offence upon him;
This was done at [vii].
•as to the use that could be made of the evidence of all complainants that the appellant showed them pornography; that it was relevant, first to prove his possession of pornography;
This was done at [xvii];
that it was also relevant to potentially support the evidence of each other complainant as similar fact evidence; that is, that the jury was entitled to weigh the improbability of each child making such allegations against his or her father, unless they were true;
This was done in brief terms at [xvii].
The similarities in the accounts and their common settings were obvious. The fact that the judge did not descend to an explanation of the mode of reasoning giving rise to the probative value of the similar claims could not have disadvantaged the appellant in this case.
•in the form of a warning against using any proven misconduct as evidence of bad character and using such a conclusion to reason to guilt on any charge;
This was done at [xiii], although in the context of uncharged acts of violence.
This was done in the context of the pornography evidence at [xvi] and [xviii].
•in terms of Dolan’s case to the effect that it was not permissible to convict on the basis that, although some conduct had been proved, the relevant charge had not been;
This was done at [xiii].
•that each charge demanded separate consideration;
This was done at [xii].
•that leaving aside A’s allegations that she was shown pornography by the appellant, her allegations of sexual misconduct towards her by the appellant were not relevant in proof of charges other than counts 1 and 2;
This was not done.
•that evidence of assaults upon C (charged and uncharged) and upon D (uncharged) was not relevant in relation to the allegations of sexual misconduct upon A;
This was not done.
•that evidence given by C and D in support of the gross indecency charges was not relevant in proof of counts 1 and 2, except insofar as it supported A’s allegation that she too was shown pornography;
This was not done.
•not to reason from the finding of guilt of one assault charge to guilt on one or more of the other assault charges.
This was not done.
As can be seen from the above, there were a number of directions which I have found should have been given and were not. The failure to give those directions amounts to the breach of a rule of practice: Schlaefer at 214. I propose to deal with the consequences of the deficiencies under the heading of “Ground 14”, which complains of a miscarriage of justice.
I have not included among the directions I have categorised as being necessary a direction that conspiracy or concoction by the complainants needed to be excluded before acting on the evidence of the complainants. That was the threshold requirement that applied after Hoch at the point of determining admissibility, which has been removed by statute. That is, it was a matter for the judge. I do not accept that such a direction to the jury is always required, any more than is a direction that the possibility a witness is lying should be excluded before relying on his or her evidence. Plainly the jury would not convict on the evidence of a witness where it entertained doubt about the witness’s honesty, whether due to concoction, contamination or simple dishonesty. However, here, where concoction had been raised, I acknowledge it would have been better had the judge addressed it, at least in brief terms, as having the capacity to rob the similar sexual allegations of their probative value. In respect of the offences of violence, where one child gave eyewitness evidence in support of another, again, the relevance of the suggested concoction should have been explained, if only in the context of putting the defence case. However I consider the issues for the jury were plain.
Ground 1 – conviction on count 1 uncertain
Ground 1 was a complaint that, in the way the charge of persistent sexual exploitation of a child was particularised and having regard to the manner in which the judge directed on the elements of that charge, there could be no certainty that the jury unanimously agreed upon the same two (or more) acts of sexual exploitation. Mrs Shaw likened the form of the offence to those provisions considered by the High Court in KBT v The Queen (1997) 191 CLR 417 and KRM v The Queen (2001) 206 CLR 221. In KBT the Queensland provision was found to require agreement by the jury as to the same three or more acts which together constituted maintenance of the proscribed relationship. (As I shall outline, that section has been significantly altered since KBT was decided.) In KRM the failure to direct in those terms was not a ground of appeal, although the opinion of Kirby J at [129] was that the Victorian provision gave rise to the same requirement.
Counsel for the respondent suggested that it was not necessary for the jury to agree on any two particular acts of those alleged; that, as long as each juror was satisfied of at least two acts of sexual exploitation, that juror could join in a verdict of guilty. He argued that the actus reus of the offence was a course of conduct, as opposed to particular and identifiable sexual acts. He relied on the terms of s 50(4) of the CLCA and the lessened burden upon the prosecution in terms of the provision of particulars.
The offence of persistent sexual exploitation of a child is provided by s 50 of the CLCA. That section was introduced by the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 and came into force on 23 November 2008. By s 50(6) acts of sexual exploitation of a child committed before or after the commencement of the section can form the basis of a charge.
The offence is created in s 50(1), which provides as follows:
(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.
The meaning of an act of sexual exploitation is given in s 50(2) as follows:
(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.
Sexual offence is defined in s 50(7) and, relevantly, includes the offence of gross indecency. Section 50(4) deals with the manner in which a charge against the section may be particularised. It provides:
(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.
The other subsections need not be reproduced.
Although the judge also referred to evidence of uncharged acts of violence upon C, the two prominent incidents were the two charges. Once the judge identified the bedroom door incident as count 6, it must have been obvious to the members of the jury that count 7 was the sticky keys incident.
I would grant permission to appeal on this ground, but I find the ground is not made out.
Ground 9 – failure to direct that some evidence was irrelevant
This ground is a complaint that the judge omitted to direct the jury that some evidence from the appellant’s wife and some of the cross-examination of the appellant himself was irrelevant, or “concerned emotionally charged matters relating to the appellant’s character”, or was unfairly prejudicial to the appellant and should have been disregarded by them. The ground contained particulars and reference to the cross-examination of the appellant covering some 46 pages of transcript. The particulars referred to evidence concerning the relationship between the appellant and his wife, evidence said to relate to “emotionally charged matters” such as the appellant’s favourite memories of his daughter, evidence of incidents disclosing bad temper and violence towards his former wife, detailed evidence about the appellant’s use of pornography, including the nature of pornography not subject to any charge, and evidence about the appellant’s practices with respect to masturbation.
No oral submissions were put specific to this ground. Neither was it discretely addressed in the appellant’s outline of argument.
It is important in dealing with this ground to make reference to the course of the trial. The appellant’s former wife gave evidence to the effect that both she and her children were subjected to violence at the hand of the appellant. The evidence was given without objection by counsel then acting. In my view that evidence, together with evidence disclosing the nature of the relationship between the appellant and his wife, including the descriptions he gave of her to police in his interview, had some relevance in explaining why the violence alleged by the three children took place in front of their mother without her intervention. It was further relevant to the appellant’s allegation that the complaints by the three children against him had been concocted at the instance of his former wife. A more detailed analysis of the relevant evidence might disclose other reasons for admitting it.
The cross-examination of the appellant going to his relationship with A was directly relevant to the jury’s evaluation of his credibility, having regard to the allegations she made against him. The same might be said in relation to his interest in, and use of, pornography, irrespective of whether the pornography was the subject of one of the charges. Plainly, the allegations of his showing pornography to his three children were central to the prosecution case. It was appropriate that he be closely cross-examined about the arguably unusual pornography which he admittedly possessed. Cross-examination about his practices in relation to masturbation was directly relevant to the allegations made by C against him.
None of this material, either adduced from the appellant’s wife, or the subject of cross-examination of the appellant, was the subject of objection by counsel. Because it was not objected to it is apparent that defence counsel – who is experienced in the criminal court – accepted that it was relevant. Insofar as the cross-examination of the appellant is concerned, defence counsel would have to have taken his objections in front of the jury. He might well have decided not to do so for tactical reasons. The appellant showed himself to be a well educated, quick witted man, who was prepared for the cross-examination. That the transcript of his evidence does not, ultimately, read well, is more a function of the weight of evidence against him than of any arguably objectionable questions asked of him. In my view the appellant is bound by the course adopted at trial by his counsel.
The whole of the appellant’s evidence no doubt informed the jury’s view of him. Even if defence counsel had asked the judge to direct the jury not to have regard to some of the cross-examination – which he did not – it would have been difficult to sift what is now suggested was irrelevant material. Again I consider that the appellant is bound by the course of the trial.
I would refuse permission to appeal on this ground.
Ground 10 – failure to give warnings in relation to A’s evidence
It is said that the judge erred in failing to give a warning in the nature of an “oath against oath” direction and a “Longman direction” in relation to the allegations comprising count 1, and that the judge erred in failing to point out that the medical examination of A did not support relevant aspects of her account and that A’s allegations emerged in the context of a bitter matrimonial dispute.
No oral submissions were addressed to the Court in support of this ground. It was not addressed in the appellant’s outline of argument.
The judge was not asked for a direction answering the description of an “oath against oath” direction or a Longman direction prior to giving his summing up, or afterwards.
In Question of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214 at 218, King CJ observed that although legislation had removed the rule of practice requiring a warning in trials upon sexual charges where the victim’s evidence was uncorroborated, it was still open to the trial judge to alert the jury to the difficulty of convicting in appropriate cases. Such a direction might be given as part of the judge’s function to assist the jury in its evaluation of the evidence. King CJ said:
It is proper where an accused person has given evidence in denial of the charge and there is no convincing corroboration of the alleged victim’s allegation, to remind the jury that the case is, or may be if they find the supporting evidence unconvincing, a case of oath against oath and of the difficulty in such circumstances of arriving at a conclusion of guilt beyond reasonable doubt.
Perry J at 231-2 and Duggan J at 235 expressed similar views.
I consider that there was nothing about the evidence of A which called for a warning of this nature. In fact, as I have found, the evidence of A’s brothers tended to support her own evidence in a material manner. It was not, in the way I have evaluated the case, one of oath against oath.
In relation to a Longman warning, the most recent allegations made by A were not particularly old. This was not a case where any forensic disadvantage would necessarily have accrued to the appellant by reason of the lapse of time. The appellant’s own evidence does not give rise to any apprehension that he may have been disadvantaged by the lapse of years since the first series of offending described by A.
The fact that the allegations emerged after a matrimonial dispute was clear to the jury. No particular warning was called for on account of that factual circumstance. In relation to the medical examination of A, on the doctor’s own evidence it was equivocal. In my view it was a matter for argument by counsel and not a matter for any particular warning by the judge.
I would refuse permission to appeal on this ground.
Ground 12 – failure to direct jury about a topic of cross-examination of the appellant
This ground was a complaint that the judge failed to bring to the jury’s attention a matter which might have robbed some cross-examination of the appellant of its force. When the appellant was interviewed by police about the allegations, he was initially told of certain of the allegations made by A. The appellant’s immediate response was that A’s mother must have “orchestrated” the allegations. He said that the allegations were totally false. He went on to say that the children’s mother has “always been in control but I didn’t know she had that much bloody swing over the kids”. Counsel for the prosecution cross-examined the appellant as to why he said anything about “kids”, plural, when the only allegations he had been informed of were A’s. The point made in the ground of appeal is that a little earlier the interviewing officer had told the appellant that he was in possession of statements from A, the appellant’s wife, and C. It was suggested that this earlier information given to the appellant should have been brought to the attention of the jury in the context of its evaluation of that cross-examination.
However, at the appeal hearing, Mrs Shaw informed the Court that she did not intend to agitate this ground separately. She said:
Can I indicate that in relation to ground 12, the cross-examination of the appellant, upon the basis that he used the word ‘kids’ in his record of interview, we don’t intend to argue that as a separate ground, rather it comes under the joinder ground. In that the approach of the prosecutor was ‘You expected all children to make allegations against you’. So it is necessarily tied up with a prejudice that comes through. We don’t seek to articulate that any further than it be one of the consequences of improper joinder.
Taken at face value that seems to mean that once it is determined that the joinder of counts on the information was not improper, the ground falls away.
In any event, I would make the observation that the argument identified by the ground of appeal is one that could have been addressed during the cross‑examination of the appellant, either by way of objection, or in re‑examination. Furthermore, it could have been addressed in defence counsel’s closing submissions to the jury. Again there was no request made of the judge to sum up on this particular point. In all the circumstances I consider that it can be safely inferred that the jury gave no more weight to this prosecution argument than was appropriate.
I would refuse permission to appeal on this ground.
Ground 13 – failure to correct errors in address of prosecuting counsel
The ground complains that the judge erred in failing to give directions correcting what were said to be errors in the closing address of prosecuting counsel. It was submitted that the address encouraged the jury to engage in impermissible modes of reasoning by suggesting that the complainants’ evidence could be viewed as mutually supportive, whereas the evidence was either not cross-admissible, or related to uncharged acts. That encouragement was said to have occurred when the prosecutor invited the jury to consider first, the consistency of the complainants’ evidence generally, and second, whether all three were lying. It was also suggested that at some points the prosecutor impermissibly reversed the onus of proof, and that this should have been corrected by the judge.
In written material submitted at the hearing Mrs Shaw drew attention to the following passage in prosecuting counsel’s address:
The relevance of the pornography is firstly that it is the actual basis of some of the charges you are asked to consider, [A] being forced to watch it and the gross indecency charges for the boys. Secondly, the fact that he had the pornography is relevant because firstly it tends to corroborate, it tends to confirm what the children say when they allege that he had pornography in his possession when they saw it. Thirdly of course, we say it puts the showing of the pornography into its proper context. This wasn't a one-off showing of pornography to [A] or the boys, which could make sense if we looked at it in isolation. This, we say, was all part of a course of conduct which involved quite a deliberate process of sexualising his own children. When you consider why [C] just put on his nervous half smile when his father showed him pictures of an apparently dead woman, or why [D] didn't immediately run and tell his mum when he was confronted with images of women eating excrement, you'll want to consider this wasn't the first and only time they say they had seen pornographic material. This was something you'll remember that all three children said was happening regularly. [D] said it was happening once a week. [C] said it happened every time [their mother] was out. Of course it's the same with this history of violence.
(emphasis added)
Mrs Shaw made complaint in relation to the passage italicised. As I understand the point, she suggested that the prosecutor’s submission amounted to an invitation to the jury to reason that the consistency of all complainants’ evidence in relation to being shown pornography was capable of bolstering A’s evidence of sexual assault.
In my view, prosecuting counsel’s suggestion to the jury was a legitimate one. Plainly the evidence of C and D that they were shown pornography was capable of supporting A’s evidence that she, too, was shown pornography. That allegation formed part of count 1. To that extent the evidence of C and D did indeed support count 1. If this is in fact the appellant’s complaint, then I can find no substance in it.
The second matter raised was the complaint about the prosecutor’s invitation to the jury to consider whether all the complainants were lying. It was said that this invitation encouraged the jury to use evidence relating to one count to bolster the credit of the other complainants in relation to the allegations made by them, when evidence in relation to those counts was not cross-admissible.
Mrs Shaw made particular reference to this passage in the address of prosecuting counsel:
So have they lied? [Defence counsel] will very properly and I'm sure professionally seek to persuade you that it is reasonably possible that [A], [D], [C] and [their mother] have all lied to us. He has to do that because on any view this isn't a case of misunderstanding, is it? It's not a case of confusion. Remember the defence only have to show that they might have lied. They don't have to give any reasons for why the family might have lied. Although they may choose to do so, they certainly don't have to. But let's consider who they must have lied to. Again, not why but how? What's the scope of these lies? Well, they have all lied of course to the police. They have all lied to the lawyers preparing the case. They have lied to Mr Apps. They have lied to his Honour. They have lied to me. They have lied to each and every one of you. It's four days of lies really, isn't it, from the moment [A] got into the box last Thursday morning, to the moment [the mother] left on Tuesday morning of this week.
The difficulty with this criticism is that the focus by prosecuting counsel upon the question of the complainants lying was directly referable to the appellant’s suggestion to police – a suggestion quickly and repeatedly made – that the complainants had concocted the allegations against him at the instance of their mother. Even though defence counsel seems not to have emphasised that notion, it was a suggestion clearly made, not only in the interview, but also in the appellant’s evidence before the jury. Moreover, motives were ascribed to the appellant’s estranged wife. These facts both explain and justify prosecuting counsel’s submission.
I do not agree that there was any reversal of the onus of proof involved in these submissions. As I have said, it was the appellant’s suggestion that all three complainants were lying. The suggestion that the “defence only had to show that they might have lied” might be inelegant and the concept might have been better expressed, but ultimately I cannot think that the jury were misled as to where the onus of proof in the trial lay.
In relation to the suggestion that the prosecuting counsel had reversed the onus of proof, it should be noted that just before the passage from his address which I set out a moment ago, counsel made this submission to the jury:
Again, tempting as it might be, I don’t ask you to say to yourselves “why would [the mother] and the children lie? [The appellant] doesn’t have to explain that. There is no burden on the defence at all as I told you when I opened the case. Of course you can and must consider that suggestion. I think he touched on it in an interview. He hinted at it in evidence that somehow this is all to do with a divorce settlement and [the mother] getting money from him.
Further, Mrs Shaw argued that the submissions invited the jury to use evidence of uncharged acts to bolster the credibility of the other complainants. She submitted:
This reliance on common accounts of uncharged acts that should never have been admitted to bolster credibility was the central premise, we say, of the prosecutor’s submission to the jury, was the reasoning process, and we say it is an incorrect reasoning process to say they all lied.
If I understand correctly this further complaint, it is that evidence of uncharged acts described by, for example, C, were promoted by the prosecuting counsel as available to support the evidence of A and D. However, whatever was said about the use of the evidence by counsel was always subject to the directions given by the judge. I have already dealt with the complaints about those directions.
Finally, I mention that no complaint was made to the trial judge in relation to any submissions put to the jury by prosecuting counsel. In my view nothing of any substance arises out of this ground. The ground is without merit. I would refuse permission to appeal on this ground.
Ground 14 – miscarriage of justice
Under this ground were particularised all the complaints made in the other grounds of appeal.
Insofar as I have found that many of those complaints are not made out, it is unnecessary to deal with them.
However, I have found, under the head of “Grounds 6, 7 and 8”, that a number of directions going to use and misuse of the evidence of the three complainants were not given.
Before turning to the specific deficiencies, I would make the following observations. There was no complaint about any suggested defect in terms of these directions by counsel appearing at the trial. After their retirement the jury did not return to ask any questions about the directions or about any other matter. There was an abundance of direct evidence in relation to the offences of violence. In each instance the evidence of the complainant was supported by at least one of the other children. In three instances (counts 2, 6 and 7) the children’s mother gave eye-witness evidence in support. In respect of the allegations concerning pornography, police located pornography at various locations in the appellant’s house. As I have found, the jury was entitled to use the evidence of each child to the effect that he or she was shown pornography in support of the allegations made by the others. Therefore, those counts were supported by independent evidence. Apart from A’s evidence of being shown pornography, her allegations of sexual abuse were not supported by other evidence. Having said that, the support she derived from her brothers in her allegation of being shown pornography was extremely significant. A close reading of the transcript of the evidence of all three complainants shows that they were very compelling witnesses. Not only were they unshaken in cross-examination; if anything, their conviction only became more apparent. The jury had an abundance of evidence in relation to each count. There was no need for it to resort to obscure modes of reasoning. It also had the benefit of having seen the appellant give evidence and of a close cross-examination of him.
For the following reasons I have concluded that the deficiencies in the summing up did not result in a miscarriage of justice.
I have found that a direction should have been given that, leaving aside A’s evidence that she was shown pornography by the appellant and then sexually abused, her allegations of sexual misconduct against the appellant were not relevant in proof of charges beyond counts 1 and 2. As a matter of logic the underlying premise must be so. It is hard to see how the jury could have reasoned from acceptance of the broader allegations of count 1 to a finding of guilt of the assault charges concerning C and D. They were warned not to reason from acceptance of the appellant’s violent behaviour to the sexual offences in [xiii] and [xiv] and told to analyse the evidence count by count. It is likely that from those directions they would have understood that reasoning from sexual offences on one child to offences of violence on another was, likewise, impermissible.
The jury was not explicitly told that a finding of guilt of the assaults upon C and D could not assist in determining whether the sexual misconduct against A was proved. Again, this matter was addressed in [xiii] and [xiv] and, in my view, once conclusions based on character were warned against, it is unlikely that such a process of reasoning would have been followed by the jury.
There was no warning to the jury that, even if they found proved the gross indecency charges based on the evidence of C and D, that conclusion was not relevant in proof of counts 1 (apart from the pornography allegation) and 2. For the reasons I have given I do not think that deficit could have led to a miscarriage of justice.
As I have found, the evidence in support of each assault charge was admissible with respect to all other charges, but not as similar fact evidence. The judge should have warned against using a finding of guilt on one such charge as evidence of propensity and weighing that finding when considering the other assault charges. He gave directions to that effect in respect of the uncharged evidence of violence at [xii] and [xiii]. The sense of those embargoes was also applicable to reasoning from count to count. Indeed, nowhere did the judge invite the jury to use satisfaction of one count in proof of any other count. In my view, such was the force of the direct evidence proving the assaults, that it is unlikely that the jury would have resorted to reasoning of a circumstantial nature; particularly having regard to the firm warnings given about impermissible use of the uncharged acts of violence.
As I have said, there was no specific direction to the effect that evaluation of each of the complainants’ evidence encompassed a consideration of the appellant’s suggestion that the allegations had been concocted at the instance of the complainants’ mother. It would have been better had there been such a direction. However, the appellant’s answer to the charges, both to the police and to the jury was clearly before them. Plainly they would have considered that possibility in their evaluation of the matter as a whole. This deficit could not have led to a miscarriage of justice.
I have subjected the transcript of the trial to the independent assessment and evaluation required by M v The Queen (1994) 181 CLR 487. I have carefully considered the deficits which I have found in the directions against the issues at trial and the manner in which the evidence was presented to the jury and the summing up as a whole. I have no misgivings about the verdicts which were rendered. I do not consider there is any danger in allowing the verdicts to stand.
As is already clear, in my view justice demanded that the allegations of the three complainants be dealt with by one jury. The very fact that the allegations were made by the children of one family was a cogent factor in favour of one trial. As I have pointed out, there were additional matters. Requiring that there be up to five separate trials arising from these allegations would be as intolerable a weight on the criminal justice system as it would be upon the complainants. And, as I have said, the charges were inextricably linked.
Conclusion
I would grant permission to appeal on grounds 2, 3, 5, 6, 7, 8 and 14. I would refuse permission to appeal on grounds 4, 9, 10, 12 and 13.
I would dismiss the appeal.
WHITE J. I agree with the orders proposed by Vanstone J and with her reasons.
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