R v March

Case [2014] SASCFC 54

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MARCH

[2014] SASCFC 54

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Kelly)

3 June 2014

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - DIRECTIONS TO JURY

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER - JOINDER OF COUNTS AND DEFENDANTS

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - JOINDER OF PERSONS OR COUNTS

Appeal against conviction. The appellant was convicted after a trial by jury of three counts (counts 1-3) of unlawful sexual intercourse with a person under 14 years, and one count (count 4) of aggravated indecent assault of a child under 14 years. The complainant with respect to the first three counts was the appellant’s step-granddaughter (V1), as was the complainant with respect to the fourth count (V2). Both complainants gave evidence at trial. The trial Judge also admitted the evidence of the appellant's granddaughter (X), who was not a complainant at trial, of acts of indecent assault to which the appellant pleaded guilty. The basis for cross-admissibility advanced by the prosecution at trial was the improbability of V1, V2 and X independently imagining or concocting stories with a high degree of similarity of detail.

Whether the trial Judge erred in failing to sever the trial of counts 1 to 3 from the trial of count 4. Whether the Judge erred in admitting evidence of his granddaughter, X, who was not a complainant at trial. Whether the Judge failed to adequately direct the jury as to the appropriate use of the evidence on the separate counts. Whether the Judge failed to adequately direct the jury in relation to contamination and collusion. Whether the Judge failed to put the defence case to the jury. Whether the Judge failed to adequately direct the jury in relation to the evidence of initial complaint.

Held per Kelly J (Kourakis CJ and Sulan J concurring) (dismissing the appeal):

(1)  The evidence of the three complainants was properly admissible for a permissible propensity use; not a propensity to commit this general type of crime, but a propensity to commit a highly specific type of crime, namely to commit sexual assaults of a very similar nature on each complainant in a brazen fashion where detection was seemingly probably and when access to the child was facilitated by the appellant’s status of grandparent or step-grandparent of the respective victims.

(2)  Having regard to the various features of the appellant’s conduct, the girls’ accounts are such as to…

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R v March [2014] SASCFC 54
Case
[2014] SASCFC 54
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for three counts of unlawful sexual intercourse with a person under 14 years and one count of aggravated indecent assault of a child under 14 years. The complainants were the appellant's step-granddaughters, V1 and V2. The trial judge admitted evidence from the appellant's granddaughter, X, concerning acts of indecent assault to which the appellant had pleaded guilty. The prosecution's basis for admitting X's evidence was the improbability of V1, V2, and X independently fabricating similar stories. The appeal was heard by Kourakis CJ, Sulan and Kelly JJ.

The central legal issues before the court were whether the trial judge erred in admitting the evidence of X, a non-complainant, and whether the judge adequately directed the jury regarding the use of this propensity evidence, particularly in relation to the potential for collusion or concoction. The appellant also raised grounds concerning the severance of counts, discreditable conduct evidence, collusion and contamination, the defence case, and initial complaint evidence.

The court found that X's evidence possessed strong probative value, satisfying the requirements of s 34P(2) of the Evidence Act. This conclusion was based on significant parallels in the behaviour described by X, V1, and V2, including the familial relationship between the appellant and the victims, their similar ages, the timeframe of the alleged offending, the brazen nature of the acts, the use of pretexts to create opportunities, and the manner in which the appellant cornered the complainants. The court noted that under current legislation, the possibility of concoction or collusion is a matter for the jury to consider, not a threshold test for admissibility to be determined by the judge.

The appeal was dismissed. The court concluded that the trial judge had not erred in admitting X's evidence or in their directions to the jury, and that no miscarriage of justice had occurred.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant now appeals against the convictions. The appellant appeals on seven grounds, arguing that the trial Judge erred in failing to sever the trial of counts 1 to 3 from the trial of count 4; erred in admitting evidence of his granddaughter, who I shall refer to as “X”, who was not a complainant at trial; failed to adequately direct the jury in relation to discreditable conduct evidence with respect to the evidence of each complainant and X; failed to adequately direct the jury as to the appropriate use of the evidence on the separate counts; failed to adequately direct in relation to collusion and contamination; failed to put the defence case to the jury; and failed to adequately direct the jury in relation to the evidence of initial complaint. Background Before dealing with each ground it is necessary for me to summarise the relevant background. Counts 1 to 3 Counts 1 to 3 allege three counts of unlawful sexual intercourse of V1. Counts 1 and 2 allegedly occurred in November 2010 when V1, who was then 12 and a half years old, accompanied her step-grandfather, the appellant on the mail run delivery of the “Country Times”. She testified that she had often accompanied the appellant for Country Times deliveries, and nothing happened to her until the day of offending in November 2010. She said that while the two of them were driving home from the run the appellant pulled the van over to the side of the road. The appellant asked her into the back of the van, and she complied. He said to V1 that if anyone asked, they were having tea. She responded “yeah, okay but what are we doing”. The appellant did not respond and approached V1. The appellant then also entered the back of the van, and asked V1 if he could teach her something. V1 agreed and the appellant then hugged her tight with his hands around her waist and he tried to give her a “sloppy kiss”. V1 testified that the appellant put his hands under her shirt and massaged her breasts over her bra, and then put his hands inside her knickers and inserted the full length of his finger into her vagina, moving it in and out. She said that he had a free hand which was around her waist, that he was holding her tightly and that her back was up against the side of the van. The appellant again tried to give her sloppy kisses but this time was successful; V1 said she could not move away because he was holding her so tightly. The appellant put his tongue into her mouth. V1 said the appellant then stopped touching her private parts and lifted her bra and started massaging her breast. The complainant said that after doing this, the accused “dry humped” her leg. Upon the two of them returning to the cab of the van, the appellant asked the complainant if he could show her something. The appellant then exposed his erect penis and told V1 “this is what an erect penis looks like”. The conduct the subject of the first charge is the alleged insertion by the appellant of his finger into the complainant’s vagina in the back of the van.

Evidence

Evidence Before The Court

Because, in my view the evidence of X was properly admissible for a propensity use, the admissibility of that evidence in the trial depended on whether X’s evidence had “strong probative value” having regard to the accounts given by either V1 or V2 so as to satisfy the test in s 34P(2) of the Evidence Act. That section provides:34P—Evidence of discreditable conduct…(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.… In my view X’s evidence did satisfy that test. Absent collusion, the evidence sought to be led in this case did have strong probative value as an item of circumstantial evidence. Moreover, the degree of probative value was such that it clearly transcended any prejudice it might cause the appellant. Important features of the appellant’s behaviour described in each of the girls’ accounts contained strong parallels. The combined effect of these parallels is to demonstrate an underlying unity between each of the alleged offences. That unity arises from the close familial relationship of the appellant and the victims. He was the step-grandfather of V1 and V2 and the grandfather of X. V1, V2 and X were all of similar ages at the time of the offending. V1 was 12 and a half. V2 was almost 13. X was 14. All of the alleged offending occurred in the space two years: the first of the offending against X in April 2010; against V1 in November 2010 and then January 2011; and then against V2 in September 2012. There were other features of the appellant’s behaviour described in each of the girl’s accounts that were demonstrative of a pattern. One feature of that behaviour is the very brazen nature of the appellant’s offending in each case in circumstances where detection was a distinct possibility. In the case of X and V1 the offending occurred in a van on the side of a road. In relation to V2 the offending occurred in the hallway of a house where other relatives were in very close proximity. However there was more. In the case of each complainant and X, the appellant used a pretext to create an opportunity for indecent touching. Regarding V2, it was the pretext of saying goodbye. For V1, it was his offer to teach her something in the back of the van. For X, it was his asking her to help him sort the bundles of mail. Each of X, V1 and V2 gave an account where the appellant effectively cornered them up against the wall or up against the back of the van so that there was no further point of retreat. V1 described the appellant holding her tightly with her back pressed against the side of the van. X described the appellant pinning her against the side of the van. V2 described the appellant pushing her against the wall in the hallway.

Decision

Reasons for decision

I would dismiss this ground of appeal. Conclusion I do not consider that the appellant has raised any error or misdirection by the trial Judge which has given rise to a miscarriage of justice. I would therefore dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Vanstone J in an earlier case of R v M, BJ[4] discussed the now repealed s 278(2a)(c) of the CLCA[5] and its impact upon the common law principles of similar fact or propensity evidence. Her Honour noted that the Pfennig[6] test and the Hoch[7] approach of requiring the Judge to make a ruling as to the likelihood of concoction or collusion were abolished by s 278(2a)(c). As Peek J observed in Maiolo (No 2), since those same changes are made by s 34S of the Evidence Act,[8] the remarks of Vanstone J in M, BJ therefore apply with equal force today notwithstanding the repeal of s 278(2a):[9] … 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 at 512 per McHugh J, 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 judgment 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 303 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.[4] (2011) 110 SASR 1.[5] Section 278(2a)(c) of the CLCA effectively removed the requirement that the Judge make a ruling as to the likelihood of concoction and s 34S of the Evidence Act is of similar effect. Section 278(2a)(c) of the CLCA reads as follows: (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.[6] Pfennig v The Queen (1995) 182 CLR 461.[7] Hoch v The Queen (1988) 165 CLR 292.[8] 34S—Certain matters excluded from consideration of admissibilityEvidence may not be excluded under this Division if the only grounds for excluding the evidence would be either (or both) of the following:(a) there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant;(b) the evidence may be the result of collusion or concoction.[9] R v M, BJ (2011) 110 SASR 1 at [25]-[31].