(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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v M, BJ [2011] SASCFC 50
Case
[2011] SASCFC 50
Decision Date
CaseChat Overview and Summary
The appellant, R v M, BJ, appealed convictions for persistent sexual exploitation of his daughter, gross indecency in the presence of his two sons, and assault on his daughter and one son. The appeal was heard by Sulan, Vanstone, and White JJ. The central dispute concerned the joinder of these charges on a single information, the refusal of the trial judge to order separate trials, and the adequacy of the directions given to the jury regarding the admissibility and use of evidence across the various counts.
The legal issues before the court included whether all the charges were properly joined on one information, whether the trial judge should have ordered separate trials, and whether the evidence on some or all counts was cross-admissible. Further, the court considered whether the trial judge's directions to the jury concerning the permissible and impermissible uses of evidence on each count in relation to the other counts were adequate, and whether the jury was required to agree on particular acts comprising the sexual exploitation charge, leading to uncertainty in that conviction.
The court dismissed the appeal, finding that justice demanded the allegations of the three complainants be dealt with by one jury. The fact that the allegations stemmed from children within the same family was a significant factor favouring a single trial, as was the potential burden on the complainants and the criminal justice system of multiple trials. The court also found that the charges were inextricably linked. The judges agreed with the orders proposed and the reasons given, leading to the dismissal of the appeal.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
WHITE J
(dissent)
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. I agree with the orders proposed by Vanstone J and with her reasons.