R v March - [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 raise the improbability as a matter of human experience of each of them making up such similar accounts.
(3) The sole criterion for the admission of the evidence was the strength of its probative force. The strength was such that to exclude it would be an affront to common sense. The evidence of V1, V2 and X was admissible in respect of each count.
(4) Given that all of the evidence was cross-admissible, the trial Judge had no discretion to sever the trial of counts 1 to 3 from the trial of count 4.
(5) The evidence of X did have strong probative value. The Judge did not err in permitting X to give the whole of her account, and appropriately directed the jury in relation to X’s evidence.
(6) The trial Judge gave orthodox directions which highlighted both the permissible and impermissible uses of the evidence in accordance with the principles laid down in statute and elucidated by this Court.
(7) The trial Judge’s directions relating to the possibility of collusion and contamination were adequate.
(8) The trial Judge adequately put the defence case to the jury. The trial Judge appropriately referred to each of the salient features of the defence case on each count in his summary.
(9) Though the trial Judge’s direction on the proper use of complaint evidence did not state with clarity the proposition enunciated in s 24M(4)(b) of the Evidence Act 1929 (SA), the combined effect of his directions, including the re-direction given in answer to a jury question, did adequately convey to the jury that evidence of the initial complaint is not to demonstrate the truth of what was reported.
Criminal Law Consolidation Act 1935 (SA) s 278(2a); Evidence Act 1929 (SA) s 34P, s 34M, s 34R; Evidence (Discreditable Conduct) Amendment Act 2011 (SA) s 4, referred to.
R v Maiolo (No 2) (2013) 117 SASR 1; R v M, BJ (2011) 110 SASR 1; R v C, CA [2013] SASCFC 137, applied.
R v McGee (2008) 102 SASR 318, distinguished.
Pfennig v The Queen (1995) 182 CLR 461; Hoch v The Queen (1988) 165 CLR 292; Makin v Attorney-General (NSW) [1894] AC 57; R v Ellis (2010) 107 SASR 94, discussed.

R v MARCH
[2014] SASCFC 54
Court of Criminal Appeal: Kourakis CJ, Sulan and Kelly JJ

KOURAKIS CJ: I would dismiss the appeal and, subject to the two additional observations I am about to make, agree with the reasons given by Kelly J.
First, I make the point that the words “underlying unity” express a conclusion and do not, in themselves, explain the reasoning which “unites” or connects the evidence of the offending and the evidence of other conduct in a compelling way. I understand the references to “underlying unity” and “pattern” in [30], [31] and [36] of her Honour’s judgment to be directed to the ultimate conclusion about the probative force of the evidence adumbrated in those paragraphs, in denying the possibility that the complainants’ allegations were independently concocted. I refer to evidence of that kind as improbability of similar account evidence.
Secondly, I observe that the Judge did not leave the evidence of the other offending to the jury in a way which relied on a particular propensity or disposition. The evidence in this case showed the appellant to have a strong sexual interest in early-teenage girls notwithstanding their familial connection and showed that he was driven to act on his sexual impulses even when there was a significant risk of detection. I tend to the view that the probative force of the evidence of offending against each of the girls as evidence of propensity was strong. However, it is not necessary to finally determine that question because the Judge’s decision not to direct the jury on that probative use of the evidence was favourable to the appellant. Importantly, the Judge’s general warnings against impermissible use removed any risk that the jury would engage in propensity reasoning on their own accord.
SULAN J: I agree with the reasons of Kelly J. I would dismiss the appeal.
KELLY J.
The appellant was convicted after a trial by jury of three counts of having unlawful sexual intercourse with a person under 14 years, whom I shall refer to as “V1” (counts 1 to 3) and one count of aggravated indecent assault of a child under 14 years, “V2” (count 4). Both V1 and V2 were the step-granddaughters of the appellant.
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.
V1 said that they arrived back at the Kadina Freight Service depot at about 8.30 pm that evening and she sat in a chair in the office while waiting for the appellant to take her home. V1 said the appellant came into the office, turned her chair around, took off her headphones, pulled her shorts and knickers down and again inserted the full length of his middle finger into her vagina, moving it back and forth. The conduct the subject of the second charge is the appellant’s inserting his finger in the complainant’s vagina in the office.
Count 3 was alleged to have occurred between December 2011 and January 2012. V1 said that she spent a few weeks of the Christmas holidays with her mother, and the rest of her holidays were spent at her father’s house. V1 described an occasion in around January 2012, when she was using the computer in her bedroom and the appellant appeared at the door in his work clothes. She said the appellant told her to stand up. She did. The appellant then laid her down on the bed and pulled her shorts and knickers down. She said that he then inserted the full length of his middle finger into her vagina and moved it in and out. She said that after he finished, he wiped her vagina with a tissue and put it in his pocket. She could not remember if he touched any other part of her body. She said that he told her not to tell anyone, and that he commented that her body was “hot”. She said he then pulled her shorts up and left the room. The conduct the subject of the third charge is the insertion of the appellant’s finger into the complainant’s vagina in her bedroom.
V1 testified that the first time she told anyone about the offending conduct was January 2013. V1 said that it was on a Country Times run when her step-mother (“Ms M”) asked if she had ever been sexually assaulted. V1 said “yes” and at one point her step-mother asked “Was it papa?” to which she responded “Yes, but how did you know that?” She recalled that her step-mother replied “I’ve realised that he has been a bit hands-on with you lately”. V1’s step-mother testified that on the Country Times run in January 2013, she said to V1 “You don’t have to answer me if you don’t want to, but have you been abused before?” After some more questions were asked, V1 told her step-mother that she had been sexually abused by the appellant. Ms M testified that V1 had explained to her what the appellant did to her by demonstrating with her hand (she was not sure if it was a fist or a finger) between her legs. Ms M also recalled V1 saying something about the back of the van and something about in her room.
Count 4
Count 4 allegedly occurred on 8 September 2012, when the complainant, V2 was almost 13 years old. However, V2 testified that on about four occasions prior to that offending the appellant had come into her room and kissed her with an open mouth. She said that on those occasions he kissed her for longer than the quick pecks that he gave her when other people were around. The conduct the subject of count 4 occurred when the appellant came up to the complainant who was watching television from the hallway of her house. At that time, her two sisters were in the lounge watching television and her uncle, step-grandmother and father were at the front door talking and saying goodbyes. The complainant said the appellant, who was also saying goodbyes, came toward her in the hallway, pushed her against the wall and whispered “You have really nice boobs, don’t you”. She said their faces were only a few inches apart and that the appellant slid his hand up her stomach and then squeezed her left breast. V2 said that the appellant then let go and stepped back. He then started talking about the ice-cream she was eating at the time, in what had shifted to a normal speaking voice. V2 said that she giggled nervously and then ran to behind where the fireplace was; to where the appellant could not see her. She said that she then moved to the kitchen, at which point the appellant shouted out her name about three times, but then said “It doesn’t matter”. The conduct the subject of the fourth charge is the appellant’s squeezing of V2’s breast.
V2 testified that after the appellant called out “It doesn’t matter” she told her father (“Mr V”) to meet her in her bedroom because she wanted to talk to him. He came into her bedroom and she told him that the appellant had told her she had nice boobs. V2 testified that she did not tell her father where she was touched by the appellant. She was not sure if she told her father when she had been touched. V2’s father testified that as they were saying goodbyes, he observed V2 in the hallway. He said she was standing straight up with her back hard against the wall and the appellant was standing hard up against her, his face very close to her face. He said he was looking probably more at the top half of them and wouldn't know what their hands or anything were doing. He said that after the appellant had left the house, V2 asked him to see her in her bedroom. He testified that V2 told him she “doesn’t want that man coming to this house anymore”. When he asked “who” and “why” she responded “Colin” and that it was because he touched her on the boob just as they were all walking out and saying goodbyes, and that it made her feel very uncomfortable. He said that V2 added that she had felt uncomfortable with the appellant in the past, and when he asked her to explain what she meant, V2 said that he often walks into her bedroom, he often kisses her with an open mouth and probably pushes the boundaries a little bit.
The trial
At trial, the prosecution also lead evidence of acts of indecent assault committed by the appellant against his granddaughter X, of which he pleaded guilty. The prosecution also lead evidence of a record of interview conducted between police and the appellant wherein the appellant made admissions to some of the offending against X.
X testified that she went on the Country Times run with the appellant on 13 or 14 April 2010. She said that he molested her about seven or eight times along the way. She was 14 at the time. X said there were a lot of times where he would kiss her on the lips and he would try to put his tongue into her mouth either just by licking her lips or using his hands to open her jaw. She said there was specifically a time where the appellant pulled over onto the side of the road and asked her to help sort out the leftover bundles of paper in the back of the van. She said he undid her seatbelt and then she followed him back there. She said he pinned her up against the side of the van and held her down while he kissed her and tried to force her jaw open with his hands. She said he did not succeed and that he then put his hand down the collar of her shirt. He then touched her breast over her bra. X also described an occasion earlier that day in which she sat on the passenger seat with her legs up on the dashboard and the GPS resting on her knees. She said that the appellant, who was in the driver’s seat, touched the top of her leg, near her groin, and started “rubbing it”. She said he then asked her if she was being a naughty girl and told her he thought she could do better.
At trial and during his record of interview, the appellant admitted indecently assaulting X by touching her breast. He also admitted touching her in the thigh area, but said it was to steady himself.
Grounds of appeal
Grounds 1 and 2
Against that background I turn now to consider grounds 1 and 2 which are complaints that the trial Judge erred in failing to sever the trial of counts 1 to 3 from the trial of count 4, and a further complaint that he erred in admitting the evidence of X at the trial.
Upon the hearing of the appeal the appellant conceded that the argument for severance depends on establishing that the evidence of the complainants, or one of them, was not cross-admissible. The appellant accepts that if the evidence was all cross-admissible then as a consequence of the provisions in s 278(2a) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) the trial Judge would have had no discretion to sever. That section provides:
278—Joinder of charges
…
(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.
…
The general common law principle is that where a number of offences of a sexual nature are charged on one information in relation to separate complainants, they should not be tried together unless evidence on one count is admissible on another count. This general principle has not been affected by any of the amendments made to the Evidence Act 1929 (SA) (“the Evidence Act”), as has been observed in a number of recent decisions of this Court.

In R v Maiolo (No 2)[1] Peek J discussed in detail the 2011 amendments to the Evidence Act, namely the inclusion of Division 3[2] which deals with the admissibility of discreditable conduct evidence. His Honour identified the impermissible use that s 34P of the Evidence Act guards against as first, a general finding of sexual offending (as distinct from proof of the specific offence on the information) and second, any impermissible propensity reasoning.[3] This accords with the common law position.
[1] (2013) 117 SASR 1.
[2] Evidence (Discreditable Conduct) Amendment Act 2011 (SA), s 4.
[3] R v Maiolo (No 2) (2013) 117 SASR 1 at [75].
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 admissibility
Evidence 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].
With respect, I agree with her Honour’s explanation of the effect of the repealed s 278(2a)(c) and, moreover, I share the view expressed by Peek J in Maiolo (No 2) that her Honour’s remarks remain pertinent given the introduction of Division 3 to the Evidence Act. Indeed, the effect of these provisions in the main has been “to turn back the clock”; the common law prior to Pfennig and Hoch is revived by Division 3 of the Evidence Act. The sole criterion for the admissibility of discreditable conduct evidence is the strength of its probative force.
In R v C, CA[10] Kourakis CJ also considered the effect of s 34P(3) of the Evidence Act and in doing so referred to the general principles governing the admissibility of discreditable conduct evidence:[11]
The mischief to which s 34P(3) of the Evidence Act is directed is the risk that the tribunal of fact, whether a judge or jury, will be distracted by the impermissible use of evidence if that use cannot be sufficiently differentiated from its permissible use. The uses referred to are forms of reasoning. Section 34P of the Evidence Act prohibits reasoning that a person who has engaged in discreditable conduct is, by reason of that bare fact alone, more likely than not to have committed the offence. Put another way, it is impermissible to reason that a person who has engaged in any form of discreditable conduct is likely to have a predisposition to commit the crime charged whether or not, as a matter of human experience, there is any probative connection between the conduct and the crime by way of predisposition or proclivity. I will refer to the impermissible reasoning as “bad person” reasoning.
The permissible forms of reasoning allowed by s 34P of the Evidence Act are, speaking broadly, twofold. First, if the discreditable conduct evidence is strongly probative of the existence of a behavioural proclivity to engage in conduct of the kind charged whenever an opportunity arises, it is permissible to use that evidence as an item of circumstantial evidence indicating guilt. The second form of reasoning is improbability reasoning which has a probative force independent of any proclivity. The improbability can arise from a wide range of circumstances and in many different ways. Common examples include “cauliflower ear” similarity in modus operandi, coincidental presence or involvement in the place or circumstances of the crime for which an innocent explanation is improbable, and the improbability of complainants independently fabricating similar accounts.
[footnotes omitted]
[10] [2013] SASCFC 137.
[11] R v C, CA [2013] SASCFC 137 at [76]-[77].
In my view the reasons of Kourakis CJ should not be taken to have precluded the overlap in any particular case of the two forms of reasoning referred to in the paragraphs cited above. Bearing that in mind, it may be accepted that the statements of this Court in M, BJ, Maiolo (No 2) and C, CA represent a distillation of the principles to be applied in determining the admissibility of similar fact or propensity evidence in a trial where a number of offences of a sexual nature are charged on one information in relation to separate complainants.
In Maiolo (No 2), Peek J, referring to the “dichotomous statement of principle”[12] by Lord Herschell LC in Makin v Attorney-General (NSW)[13] said:[14]
... the effect of the overall pronouncement was to posit a general rule of exclusion to which there might be various exceptions. It is sometimes said that such exceptions were delineated by factual classes or categories (with the inference being that the approach was a relatively crude one). There may be an element of truth in this analysis, but the mere incantation of a label and a plausible argument in support was never sufficient to ensure admissibility. The courts bore the force of the general exclusionary edict strongly in mind and the admission of exceptions was just that: exceptional. When one looks at the facts of some of the famous cases decided by reference to the Makin principles such as Makin itself (the baby farmers), R v Smith (brides in the bath); R v Straffen (Straffen) (the distinctive psychopathic strangler) and R v Ball (the incestuous siblings), one uniformly finds evidence possessing really strong probative force.
In my view, this is no accident. The courts required that before an exception was to be admitted it had to possess a justification for admission other than reliance upon a disposition or propensity of the accused and in fact, if not always in express analysis, the courts required this justification to have strong probative force. Of course, another debate here looms as to whether some of the cases said to possess justification for admissibility other than via propensity were, as a matter of logical analysis, cases of propensity by another name. It may be so, but again I do not participate in the debate, except to say this. In my view, the answer, or part of the answer, to a number of the questions raised by commentators is that there is an important distinction between a general propensity (to commit crimes or to commit crimes of the same general kind) on the one hand and a propensity to commit a highly specific type of crime on the other hand. The exclusionary rule was certainly concerned to guard against the former kind of general propensity. As for the latter kind, it may well be that a case such as Straffen would now be so classified as involving a highly specific propensity - but the result of the admissibility inquiry would be the same.
[emphasis added]
[footnotes omitted]
[12] R v Ellis (2010) 107 SASR 94 at [96] per Kourakis J.
[13] [1894] AC 57 at 65.
[14] R v Maiolo (No 2) (2013) 117 SASR 1 at [31]-[32].
It is my view that the facts of this case are such as to justify the admission of the evidence of VI, V2 and X on such a basis as identified by Peek J in Maiolo (No 2).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. That is so, however in my view, another proper basis for admission of the evidence was 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 probable and when access to the child was facilitated by the appellant’s status of grandparent or step-grandparent of the respective victims.
The appellant submitted that the evidence of X was not admissible and ought not to have been admitted into evidence at the trial in respect of the counts alleged against V1 and V2.
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.
V1, V2 and X each described the nature of the indecent dealing which included kissing them with an open mouth. V1 said the appellant made repeated attempts to give her “sloppy kisses”. He successfully put his tongue in her mouth at a point in which she was effectively restrained by him. Similarly, X described the appellant kissing her on the lips and trying to put his tongue in her mouth either by licking her lips or forcing her jaw open with his hands. Although not the subject of any specific count involving V2, V2 nevertheless testified that on about four occasions prior to the offending alleged in count 4, the appellant kissed her with an open mouth.
There were other points of similarity in the description of the conduct which the appellant engaged in towards the girls. In particular as between V1 and V2, in the things the appellant said to them in the course of the offending. For example in the case of V1, he complemented her by saying “your body is hot”, in the case of V2 by saying “you have really nice boobs”.
In my view having regard to these features of the appellant’s conduct, the girls’ accounts are such as to raise the improbability as a matter of human experience of each of them making up such similar accounts of indecent handling by the appellant who was respectively their grandfather or step-grandfather. In fact, the brazenness and the sheer impudence of the appellant’s indecent dealing with the girls amplifies the improbability of them independently fabricating such similar accounts.

The facts of this case are not dissimilar to the facts in R v Ellis.[15] Although that case was decided prior to the enactment of s 34P of the Evidence Act the reasons of the Court in concluding that the evidence of each complainant was cross-admissible at the trial are directly relevant to the issues which arise here.[16]
[15] (2010) 107 SASR 94.
[16] The appellant was convicted on 13 counts involving four complainants which occurred between 1961 and 1971. Sulan J (Duggan J agreeing) held the similar fact evidence as a whole demonstrated that absent concoction, there was no reasonable explanation for the complainants’ versions other than an inference of guilt of the offences charged.
This is also a case where the combination of circumstances including the relationship of each child to the appellant, the time and place where each offence occurred, together with the nature of the indecent behaviour alleged, did reveal an underlying unity or a pattern which raises as a matter of common sense and experience the objective improbability of the events occurring other than as alleged by the prosecution.
The sole criterion for admission of the evidence was the strength of its probative force. It is my view that its strength is such that to exclude it would be an affront to common sense. For these reasons I consider the evidence of V1, V2 and X was admissible in respect of each count.
Counsel for the appellant submitted that because X gave evidence of conduct by the appellant which was not the basis of the plea, the evidence of X was therefore not cross-admissible. It was argued further that in the exercise of the Court’s discretion the prosecution ought not to have been permitted to lead evidence beyond that which was necessary to establish the basis of the appellant’s plea in the earlier proceedings involving X.
In those proceedings the appellant had admitted to indecent touching on the breast of X outside her clothing. However X gave evidence of conduct which went beyond that. In my view the prosecution was not limited to leading only the evidence of the appellant’s admission in the proceedings involving X.
The fact of the admission made by the appellant in fact bolstered the argument for admissibility of X’s evidence. There is no principle of law which required the exclusion of X’s entire account concerning the appellant’s offending against her. The prosecution was not bound by the factual basis accepted for the purpose of the appellant’s sentencing in the Magistrates Court. There was no abuse in permitting X to give the whole of her account. Moreover, there is nothing in the decision in R v McGee[17] which supports the proposition put forward by the appellant that by not disputing the factual basis for sentencing in X’s proceeding, the prosecution was therefore barred from leading the whole of X’s account. In any event there was nothing in X’s evidence which was inconsistent with the factual basis put forward by the appellant and accepted by the prosecution for the purpose of sentencing in the Magistrates Court.
[17] (2008) 102 SASR 318.
Nor can I accept the submission made that the jury were misled as to the effect or extent of the appellant’s admission in relation to X. This is because the trial Judge specifically warned the jury about X’s evidence as follows:
If you accept that the accused said that he touched or pinched [V1] on the breast, then you would have evidence which might amount to an admission on his part that he engaged in an impropriety with [V1]. Before you could regard it as any form of admission, you would have to be satisfied that he intended to make an admission in those terms. If you are so satisfied, then that might provide some support for the central feature of [V1]’s account, namely, that she was abused by the accused and that the abuse included touching her on the breast.
If you are again so satisfied, it would not necessarily follow that you would convict the accused on all or any of the [V1] charges and you would still have to be satisfied that she is truthful and reliable in the essential aspects of her evidence as it relates to any one charge before you could convict of that charge. But you could then consider that question as it relates to each charge in the light of the fact that there is some support for the generality of [V1]’s allegations out of the accused’s own mouth.
Even if you were to accept that the accused said what is attributed to him on this occasion and that he was telling the truth, you would have to bear in mind the possibility that all he ever did to [V1] was to touch her on the breast and, if you come to the conclusion that it is possible that this is, in fact, all that he ever did, then you would have to acquit on the [V1] charges.
Much the same applies to what the accused told the investigating officer when he was interviewed about [X]. You can take into account anything he said to the police which tends to implicate him in engaging in sexual impropriety with her. You can take into account anything that he said which tends to exculpate himself and you can attach different degrees of significance to different things that he said. In the final analysis you will have to bear in mind the possibility that he did no more to [X] than stupidly kiss her and pinch her on the breast as he said both during the interview and in evidence.
The probative force of the evidence of X in the trial of the counts against V1 and V2 was the improbability of V2 and V1 independently fabricating such similar accounts of indecent handling by their step-grandfather.
As the evidence of the three girls was all cross-admissible it follows that there was no discretion to sever the counts. For these reasons I would dismiss the first two grounds of appeal.
Grounds 3 and 4
I turn now to the third and fourth grounds of appeal, that the trial Judge erred in failing to adequately direct the jury in relation to the discreditable conduct evidence with respect to the evidence of each complainant and X and in relation to the appropriate use of the evidence in respect of each of the separate counts.
In respect of the uses of the evidence of X in relation to proof of the counts against both V1 and V2, the trial Judge’s directions were first, that the jury must consider the counts separately. His Honour said:
As you know, the accused is charged with four separate and distinct crimes. Notwithstanding this, the charges do not necessarily rise or fall together and your verdict on one charge cannot predetermine your verdict on any of the others, and it follows that you must give separate consideration to each charge and ask yourselves, in relation to each charge: am I satisfied that the evidence presented in relation to this particular charge proves the charge beyond reasonable doubt, or not?
It thus follows that it is open to you to return different verdicts on different charges if you see fit.
The jury was instructed not to reason from a finding of guilt on one count to guilt on another:
Additionally, and arising out of the need for you to give separate consideration to each charge, even if you were ultimately to be satisfied that the accused was guilty of one of the charges, then I direct you that you would nonetheless be strictly forbidden to reason that just because he is guilty of that charge he is therefore the sort of person who is likely to have committed the other crimes with which he is charged, and I also direct you that it would be illogical and wrong for you to engage in this or any similar line of reasoning.
The trial Judge specifically warned against impermissible propensity reasoning in the event that collusion was not excluded:
Also importantly, if the prosecution do not satisfy you that collusion or coincidence can be excluded, you would be prohibited from engaging in improbability reasoning and you would then need to be especially careful to consider each charge separately and especially careful not to reason that if the accused was guilty of one charge he might be the type of person who would be more likely to commit the others. And you would have to be especially careful not to reason that the mere fact that three young females made allegations against him means that he is the type of person who might be more likely to have behaved as alleged.
In relation to the use of the evidence of V2 of other uncharged acts of kissing, the trial Judge directed the jury as follows:
Now, I need to give you some directions about [V2]’s evidence that the accused came into her room on about four occasions before the day in question and stood close to her and then kissed her with an open mouth for longer than the pecks he gave her when there were people around. If you accept that he did so, then there are ways in which you might be able to use this evidence and a way in which you must not use it.
If you accept her evidence in this regard, you would have evidence which might assist you in your ultimate evaluation of her evidence as a whole in the sense that you would have evidence which provides you with the context in which her evidence about what she says happened on the day in question is to be considered, thus providing you with a better opportunity to assess her evidence and to determine to what extent, if any, you are prepared to rely on it.
You should consider her evidence about the earlier kissing along with her evidence about what happened on the day in question. Her evidence about the kissing can be more specifically described as evidence of the background against which her evidence about what happened on the day in question falls to be considered. Her evidence about the kissing might also demonstrate similarities between what she says happened to her and what [V1] and [X] say happened to them, and I will deal with the question of similarities in a moment.
Now, these are the only uses to which her evidence about kissing on earlier occasions can be put. Even if you accept that such kissing occurred, you are nonetheless strictly forbidden to reason that just because the accused had kissed her in this manner on earlier occasions, he is therefore the sort of person who is more likely to have behaved as alleged on the day in question.
It can be seen from the foregoing that the trial Judge limited the use which was to be made of the evidence of the prior kissing of V2 and specifically warned against using that evidence as evidence of propensity. Arguably this direction was generous given that the evidence of prior kissing was capable of providing evidence of a sexual attraction on the part of the appellant toward V2.
It is my view that the evidence of prior kissing had the necessary probative value to justify its admission under s 34P(2)(b) of the Evidence Act.
I have referred earlier to the directions which the trial Judge gave in relation to the appellant’s prior admissions with regard to indecently touching X on the breast outside of her clothing.
In the end, the argument developed by counsel for the appellant in respect of these grounds did not challenge these directions or the directions generally about the approach the jury should take in relation to the improbability reasoning in principle. However, Mrs Shaw QC contended that they amounted to a misdirection on the facts established by the prosecution because the prosecution did not establish that the evidence possessed the necessary probative value to pass the test under s 34P(2)(a) of the Evidence Act. Counsel for the appellant contended that the prosecution failed to establish that there was sufficient similarity between the respective accounts to justify admission of the evidence.
It is significant that there was no complaint at the trial by either counsel that any of these directions did not comply with s 34R of the Evidence Act. I consider that is unsurprising because they were orthodox directions which highlighted both the permissible and impermissible uses of the evidence in accordance with the principles laid down in the statute and elucidated by this Court in M, BJ, Maiolo (No 2) and C, CA. In addition, for the reasons which I have just expressed I consider the trial Judge’s directions were conservative and somewhat generous to the appellant. I would dismiss grounds 3 and 4.
Ground 5
I turn now to the fifth ground of appeal, that the trial Judge’s directions relating to the possibility of collusion and contamination were inadequate. His Honour directed as follows:
The foundation of the process of reasoning involved is the improbability of the complainants telling similar lies and it is best explained by the use of a relatively simple example. If an adolescent relates a complaint of sexual impropriety by a particular man, then he or she may well be indulging in fantasy. If another adolescent makes a complaint of sexual impropriety by the same man, then that may well be mere coincidence. However, if two or more adolescents make complaints of sexual improprieties by the same man which are similar in nature and detail and if they have not got their heads together and concocted a story which all of them then tell, then it may well be that coincidence can be excluded and that the degree of similarity disclosed gives rise to the inference, to the exclusion of all other possibilities, that their accounts are all true and the reality is that the man in question has, in fact, engaged in similar improprieties with all of them.
Assuming that collusion can be excluded, the question of whether the similarities between the accounts they all give can provide any support for what each of them say is essentially a matter of fact and degree. Again, assuming that collusion can be excluded, the more unusual the account that they all give and the more parallels there are between their respective accounts, the more improbable it becomes that they might have independently fabricated their respective accounts and the more likely it becomes that the similarities between their accounts exist because all of them are, in fact, telling the truth.
If the only explanation for the similarities is that all of the adolescents are telling the truth, then the similarities might have the capacity to provide a degree of support for what each of them says. This is the approach the prosecution is inviting you to take when it points to what it submits are similarities in the accounts given by [V1], [V2] and [X].
In essence, Mr Williams submits that [X] provides the nexus which strengthens the bond between the evidence of [V1] and [V2]. In particular, Mr Williams points to the way in which all three complainants say that the accused kissed them; he points to the fact that [V1] and [X] say their backs were against the side of the van and the fact that [V2] says that her back was against the wall; he points to the fact that all three say that the accused touched them on the breast; he points to the fact that [V1] says that he told her that she had a hot body, and [V2] says that he told her that she had nice boobs; and he points to the fact that [V1] says that the accused penetrated her digitally and [X] says that he rubbed her on the leg near the groin.
Before you could engage in improbability reasoning of the kind I have explained to you, you would have to be satisfied that the prosecution have excluded the possibility that [V1], [V2] and [X] have got their heads together and fabricated their accounts, including any similarities which you might find to exist.
The appellant’s main contention in respect of this ground was that in the course of directing the jury on the issue of concoction the trial Judge did not make the point that it was the very similarity of accounts given by the girls which might in itself amount to evidence of concoction.
In making this submission, counsel for the appellant once again sought to rely on the observations of Kourakis CJ in respect of the trial Judge’s directions in C, CA. In C, CA the trial Judge had directed the jury to the positive effect that “there is no evidence that any of the three complainants have discussed their allegations in such detail with any other person that would enable that other person to have concocted a similar version of events”.[18] In C, CA Kourakis CJ made the point that the jury may well have taken that direction to mean that the possibility of collusion could be put aside because of the absence of any direct evidence about it.[19]
[18] R v C, CA [2013] SASCFC 137 at [98].
[19] R v C, CA [2013] SASCFC 137 at [103].
Returning to the trial Judge’s directions in this case, his Honour said:
Now, relevant to the question of whether the accounts given by [V1], and [V2] and [X] have the capacity to give rise to improbability reasoning is the question of whether they might have got their heads together and concocted similar stories about improprieties on the part of the accused. In this regard, the combined effect of their evidence is that although they know each other, they do not see each other very often and they have never discussed the accused amongst themselves. Also in this regard, [Mr M] told you that he never saw [V1] and [V2] together and that [V2] was not allowed in the house anyway but that they did go on camping trips.
Those remarks came at the end of a lengthy and unexceptionable direction to the jury on the topic of concoction and collusion and the manner in which the jury were to reason if satisfied that the prosecution excluded collusion.
It is implicit from the whole of the trial Judge’s directions on this topic that it was obvious to the jury by that stage of the trial what the competing considerations were in relation to resolving that important issue of concoction. Although the jury were not specifically told how, if collusion remained a reasonable possibility, that would impact on the reliability and credibility of each of the complainants, the impact on their credibility was so obvious that it did not need to be spelt out by the trial Judge. In my view the jury could not have failed to grasp that this was the central issue for their consideration in determining whether the similarity in the accounts given by each complainant did give rise to the improbability reasoning about which they were directed comprehensively by the trial Judge.
For these reasons I consider that the trial Judge’s directions on contamination and collusion were adequate. I would dismiss this ground of appeal.
Ground 6
I turn now to ground 6, a complaint that the trial Judge failed to adequately put the defence case to the jury.
Before turning to the facts, I make the trite observation that the obligation upon a trial Judge to put the defence case varies depending on the length and complexity of the legal issues involved, the way in which the issues crystallised both during evidence and in counsels’ addresses, and on the structure of the summing up.
It is also trite to observe that the trial Judge has a duty to state the substance of the defence case and explain its bearing on the legal issues. The trial Judge must fairly and impartially put the defence case so that the jury is apprised of the challenge to the prosecution case.
The appellant’s complaint here is that the trial Judge failed to crystallise the defence case in respect of the separate counts, and went no further than providing a recitation of the evidence of the appellant and his witnesses. In particular, counsel complained that his Honour failed to relate the evidence put forward by the defence to each of the separate counts and the specific issue to which the evidence related. In a case such as this where the defence went beyond a bare denial of the conduct in question but raised evidence which it was suggested supported a lack of opportunity, or the unlikelihood of the event happening because of the presence of others, it was said to be even more important.
The defence in relation to the first three counts was that the appellant never had the opportunity to commit the first two offences as V1 was never in the van with the appellant on any of his Country Times runs. As to the third count, it was said the appellant could not have committed the offence because he did not have a key to the home of V1’s parents where the offending was alleged to have occurred. The appellant gave evidence of these matters and called his wife and his daughter Helene Martin who testified to the fact that he did not have a key to the premises and that V1 had never been in the van with the appellant as claimed.

The defence in relation to count 4 which was a complaint which related to V2, was that this offending did not and could not have happened given the presence of others nearby.
In the course of summarising both the prosecution and defence evidence, the trial Judge said the following:
The accused told you that he was 65 years of age. The work on the roof was carried out in September 2010. He did not have a key to Powell Terrace. He did not take [V1] on a Country Times run in November 2010 or, indeed, at any other time. He took his evening meal with him on the Country Times run and he never parked the van in the shed. He told you he never molested [V1] and that he was never in the house alone with her.
He told you that he gave [V1] a lift in the green truck on three occasions in 2012 at her request. He told you that [V1] was not at Powell Terrace over the Christmas holidays 2011/2012.
He told you when he arrived at the house at Wynn Vale, [V2] gave him a kiss on the lips. He told you about the iPod cover. He told you that when they got back from the football and as they were about to leave, he stepped up out of the lounge and took a step or so towards [V2], put his hands on her waist and they exchanged goodbye kisses.
He told you that he asked his daughter if [X] could come on a Country Times run with him and program the GPS for him. He told you that they had pulled over after leaving Coobowie in order to check the load. He told you while both of them were in the back of the van, he gave her a hug out of relief, gave her a kiss and pinched her on the breast for some unknown reason and that he apologised immediately. He said he did not engage in any other improprieties with her but he nonetheless put his hand on her lower thigh to steady himself at some stage. He told that you he apologised for a second time when they were saying goodbye.
He told you that he was upset during the course of the interview and he told you that he denied telling [Mr M] and [Ms M] that he touched [V1] on the breast.
His Honour continued:
As would be obvious to you, ladies and gentlemen, it is the accused’s case that he did not at any time engage in any sexual impropriety of any kind whatsoever with [V1] or [V2], and that all he did to [X] was to pinch her on the breast and that he did no engage in other improprieties with her of any kind whatsoever.
The trial Judge then concluded his summary of the defence evidence of the appellant’s wife and Helene Martin:
The accused’s wife told that you she accompanied him on every Country Times run after April 2010 although she did not always assist with the loading. She told you that she did not see [V1] at Powell Terrace over the Christmas holidays 2011/2012 either. She told you that [V2] greeted them at the front door and hugged and kissed both of them. She told you that she accompanied the accused to [V2]’s bedroom and that the accused produced the cover.
She told you that when they were leaving the [V2]’s house to go home, she followed the accused when he said goodbye to [H] and [A] and that the accused put his hands on [V2]’s waist and kissed her goodbye and that she did likewise. She told you that the accused did not touch [V2] on the breast. She told you she can’t remember a lot of what was said when [Mr M] and [Ms M] came to the house in January, except that [Mr M] said that he was going to take [V1] to the police station. She told you that neither she nor the accused had a key to Powell Terrace. She denies that she spoke to [Ms M] and [Mr V] about the allegations in the terms that were suggested to her in cross-examination. She told you that the accused hates tissues and that he never uses them.
Helene Martin told you that her middle child was born on 29 September 2010. She told you that the accused and his wife did the Country Times run together in 2010 and 2011 and that she saw them every Tuesday. She told you that she did not see [V1] at Powell Terrace over the Christmas holidays in 2011/2012.
It can be seen from the foregoing that the trial Judge pointed out the salient features of the defence case during his summary of the evidence led by the defence. That was not inappropriate in a trial of this nature where the allegations in relation to each of the four counts were straight forward, the defence in relation to each count quite simple and the trial was relatively short. I do not consider that in these circumstances any more was required of the trial Judge. In making the submission that more was required Mrs Shaw relied on observations of Kourakis CJ in C, CA when his Honour referred to the need “to remind the jury, even if by a headline reference to the factual issues raised, the points of contradiction of the complainants’ evidence by the defence witnesses.”[20]
[20] R v C, CA [2013] SASCFC 137 at [116].
However this case is nothing like the facts in C, CA where there were as many as 30 counts charged in respect of three boys over a period of approximately seven years. That case raised a number of complex issues of fact and law which are not replicated in the circumstances of this case. For this reason I consider it wrong to extract the explanatory statements made by Kourakis CJ and apply them to the wholly different situation here where the facts were simple and both the prosecution and defence case were straightforward.
To put that in another way, the jury could not have failed to grasp that the defence in relation to the allegations in counts 1 and 2 was that it could not have happened because V1 never went on a Country Times run with the appellant; the defence to count 3 was that it could not have happened because there was no opportunity because the appellant and his wife did not have a key to the house; and the defence to count 4 was that it could not have happened because of the presence of others in very close proximity to the alleged incident.
This is particularly so in light of the fact that the salient features of the defence in relation to each count were referred to by defence counsel in his address to the jury and referred to by the trial Judge in the course of his summary of both the prosecution and defence cases respectively.
As was the case in respect of some of the earlier grounds of appeal, counsel for the appellant made a number of detailed complaints about the trial Judge’s respective failures to direct the jury adequately in circumstances where no complaint was made by counsel acting for the appellant at the trial. No complaints of the kind made here were ever articulated at any stage before the trial Judge who was not asked to redirect or add to his directions at the conclusion of the summing up. The result in my view is that in the argument articulated before this Court the matter has taken on an entirely different character from the case argued at trial. There is an air of artificiality if not unreality about some of the arguments put forward in respect of this ground of appeal.
The case was short. The defence case straight forward in respect of each count. The trial Judge referred to each of the salient features of the defence case on each count in his summary. Nothing further was required. I would dismiss this ground of appeal.
Ground 7
I turn now to the seventh ground of appeal which is a complaint that the trial Judge failed to adequately direct the jury in relation to the evidence of complaint, in that he failed to direct the jury that the evidence of the initial complaint was not admissible to prove its truth, and insofar as he directed the jury that it was admissible, he failed to give the jury a more complete picture of what the complainant said the appellant did to her.
The directions given by the trial Judge on this topic were comprehensive; however the following passages, in particular the highlighted portions, were relied on by the appellant as constituting an error:
Ladies and gentlemen, this evidence comes before you in order to inform you of the circumstances in which the allegations of [V1] and [V2] first came to light, thus giving you a more complete picture of their respective overall accounts about what they say the accused did to them. It also comes before you in order to enable you to determine whether what either of them said by way of complaint has the capacity to demonstrate consistency of conduct on the part of either of them and whether any such consistency has the capacity to enhance the credibility of either of them in the sense of is what either of them said by way of complaint what you would have expected them to have said if they had in fact been abused in the ways that they now say that they were and whether any such consistency has the capacity to enhance the credibility of either of them and, if so, to what extent?
…
Importantly, and even though what [V1] and [V2] said by way of complaint might have the capacity to enhance the credibility of either, or both of them, what they said by way of complaint cannot and does not amount to some form of independent evidence tending to prove or confirm that what either of them complained of did, in fact, happen. Moreover, and as I have pointed out, what was said by way of complaint might also have the capacity to demonstrate inconsistency of conduct on the part of either or both of them, thus tending to undermine any credibility which either of them might otherwise have enjoyed.
[emphasis added]
Mrs Shaw submitted that at no stage did the trial Judge’s directions on complaint contain a direction in terms of the requirement set out in s 34M of the Evidence Act.
Section 34M of the Evidence Act provides:
34M—Evidence relating to complaint in sexual cases
(1)This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•when the complaint was made and to whom;
•the content of the complaint;
•how the complaint was solicited;
•why the complaint was made to a particular person at a particular time;
•why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)     it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b)     it is not admitted as evidence of the truth of what was alleged; and
(c)     there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
The main complaint was said to be the trial Judge’s failure to direct at any stage in accordance with the requirement in s 34M(4)(b) that the evidence of the complaint could not be relied upon for the truth of the facts alleged in the complaint. Counsel for the appellant submitted that the failure to direct in accordance with that requirement was compounded by the trial Judge’s directions at the outset when he told the jury why the complaint evidence was admitted and added “thus giving you a more complete picture of their respective overall accounts about what they say the accused did to them”.
However, that direction must be read in the light of the preceding part of the impugned direction. I consider that the use of the word “thus” makes it clear that all the trial Judge was doing in that direction was clarifying the relevance of the evidence admitted to inform the jury of the circumstances in which the allegations first came to light. I do not accept that there is any error in that passage of the summing up.
I accept that in the second highlighted passage (referred to in [77] herein), the language used by the trial Judge may not have actually conveyed to the jury that the evidence of complaint, whether independent or not, was not admitted as evidence of the truth of its contents.
The issue which arises is whether on the whole of the directions, that concept was adequately conveyed. In determining this issue it is important to note the trial Judge’s direction later in response to a jury question:
I remind you that the statement made by [Ms M] during the course of the conversation to the effect that the accused had been hands-on lately provides no evidence whatsoever that the accused had been hands-on and you are not to regard that statement as being any kind of evidence to that effect. I also remind you that although complaints may be relevant to the credibility of the witnesses concerned, namely [V1] on the one hand and [V2] on the other, what is said by way of complaint provides nothing by way of independent evidence or confirmation that that which was complained of did in fact happen.
[emphasis added]
It is true that even at that stage the trial Judge did not use the language incorporated into s 34M(4)(b) of the Evidence Act, however s 34M(5) makes it clear that no particular form of words must be used by the Judge in giving the relevant direction.
Most Judges prefer to give the direction in this time-honoured fashion:
… the evidence of the initial complaint, and any elaboration of it is not before you to demonstrate the truth of what was reported. You have regard to the complainant’s evidence given in this court for that purpose. Rather the evidence is before you for the purpose I have just mentioned, that is to demonstrate consistency of conduct on the part of the complainant. It will of course be for you to determine the significance (if any) of the evidence of complaint in circumstances of this case.
In my view, it would have been clearer if the trial Judge used the plain and simple language contained in that precedent rather than the language often associated with directions on corroboration.
Nevertheless I consider that by his later redirection, the trial Judge did adequately convey to the jury that the evidence of the complaint could not be used to demonstrate the truth of what was reported in the complaint.
In summary, though it is regrettable that the otherwise comprehensive direction on the proper use of complaint evidence did not state with clarity the simple proposition enunciated in s 34M(4)(b) of the Evidence Act, I consider that the combined effect of the trial Judge’s directions including the direction given in answer to the jury question did adequately convey to the jury that important concept. If I am wrong and the trial Judge’s earlier lack of clarity amounts to an error of law, I am nevertheless of the view that the error did not cause any miscarriage of justice and in the circumstances it would be appropriate to apply the proviso.
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.