R v MCROBERTS
[2023] SADC 38
•14 April 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Interlocutory Application)
R v MCROBERTS
[2023] SADC 38
Ruling of his Honour Judge Alexandrides
14 April 2023
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE
Held: Application for separate trials refused. Discreditable conduct not to be led for the purpose of establishing propensity.
Criminal Law Consolidation Act 1935 (SA) s 56; Criminal Procedure Act 1921 (SA) s 102; Evidence Act 1929 (SA) s 34; Statutes Amendment (Child Sexual Abuse) Act 2021 (SA), referred to.
DES v The Queen [2020] SASCFC 32; MDM v The Queen [2020] SASCFC 80; R v Bonython-Wright (2013) 117 SASR 410; R v C, CA [2013] SASCFC 137, discussed.
R v MCROBERTS
[2023] SADC 38Charges
The defendant is charged with four counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) comprising offences alleged to have been committed against three child victims on three separate occasions as follows:
·Count 1 – MS.
·Counts 2 and 3 – SH.
·Count 4 – DD.
Count 1
1. The first complainant, MS, was born on 2 February 1985. The alleged indecent assault was committed between 26 November 1991 and 20 May 1994. The complainant was between the ages of six years and nine years over the relevant period.
2. The accused was known to complainant 1 because of his involvement as a leader of the Glenelg Scout Group where the complainant’s brother attended and from where the complainant’s father formed a friendship with the accused.
3. The accused attended the complainant’s home from time to time where he participated in cooking and other related activities with the father.
4. The offence was said to have occurred when the accused was driving his vehicle with the complainant in the front passenger seat. There were no other occupants in the vehicle. The vehicle came to a stop at a rail or tram crossing when the accused is said to have reached over and put his hand down the front of the complainant’s pants and underpants and touch her on the outside of the genital area (Count 1). It is alleged that he rubbed the area for a short time during which he asked the complainant how it felt. He then removed his hand and continued to drive the vehicle.
5. The prosecution also alleges an uncharged act of discreditable conduct which occurred at the complainant’s home in her brother’s room. It is said that the accused was seated in front of a computer with the complainant sitting on his lap. The accused tickled the complainant on her hips and abdomen causing her to wriggle on his lap. The complainant observed that the accused had an erection in his jeans to which she pointed at and referred to as a “sausage”.
Counts 2 and 3
1. The second complainant, SH, was born on 22 March 1985. The alleged indecent assaults were committed between 5 December 1995 and 22 March 1997. The complainant was between the ages of 10 and 12 years over the relevant period.
2. The accused was known to complainant 2 from their involvement with the Salisbury Downs Cub Pack and Scout Troop between about November 1993 and March 1997 during which time the accused was a Scout Leader.
3. The alleged offence was committed at a film night and sleepover held in the Salisbury Downs Scout Hall. There were up to 15 to 20 other children who attended the film night and sleepover. The accused in his capacity as Scout Leader was the only adult in attendance.
4. It is alleged that the accused reached into the complainant’s sleeping bag and placed his hand inside the complainant’s pyjamas and fondled his genitals for a number of minutes (Count 2). It is further alleged that the accused then took hold of the complainant’s hand and placed it into the accused’s sleeping bag and under his clothing onto the accused’s erect penis then by using his own hand caused the complainant to stroke the accused’s penis (Count 3).
Count 4
1. The third complainant, DD, was born on 9 April 1987. The alleged indecent assault was committed between 5 December 1995 and 9 April 1997. The complainant was between the ages of eight and 10 years over the relevant period.
2. The accused was known to complainant 3 as a result of their involvement with the Salisbury Downs Joey Mob, Cub Pack and Scout Troop between November 1993 and 23 May 1998. The accused was a Scout Leader in that period.
3. The complainant’s brother was involved in the Scouts during that period. The complainant’s mother was also involved in the Scouts as a Leader.
4. The complainant and his brother attended the accused’s fish and chip shop from time to time where he would give them cigarettes, confectionery and cash for helping in the shop.
5. It is alleged that the indecent assault was committed when the complainant, his brother and the accused attended a previously arranged fishing trip at an inlet at Globe Derby. The three rode bicycles from the accused’s home. At the inlet the group discussed swimming. The accused and the complainant removed all their clothes other than their briefs. Is alleged that while the complainant was standing near the water the accused rubbed and tickled the complainant’s back near his underwear. The accused is said to have then run his hand back and over the complainant’s shoulders and down his chest and abdomen. This motion occurred several times during which the accused placed his hand inside the back of the complainant’s underwear making contact with his buttocks as well as into the front of the complainant’s underwear making contact with the complainant’s genitals. On one such occasion the accused is alleged to have moved his hand towards the complainant’s scrotum where it joins the under part of his body (Count 4).
6. The prosecution also alleges an uncharged act of discreditable conduct which occurred at the accused home when the complainant attended. It is alleged that on this occasion the accused offered to give the complainant a body massage.
Application for Separate Trials
The defendant through his counsel has made an application for separate trials with respect to the charges involving each of the complainants.
The joinder of criminal charges is governed by s 102 of the Criminal Procedure Act (CP Act) which relevantly provides;
(1)Subject to this Act, charges for 2 or more offences may be joined in the same information if those charges are founded on the same facts or form, or are a part of, a series of offences of the same or a similar character.
(2)*
(3)*
(4)*
(5)A court may direct that—
(a)charges contained in a single information be dealt with in separate proceedings; or
(b)*
(6)Despite subsection (5) and any rule of law to the contrary, if 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.
(7)*
(8)*
(9)In this section—
sexual offence means—
(a)an offence against section 48, 48A, 49, 50, 56, 58, 63B or 72 of the Criminal Law Consolidation Act 1935; or
(b)an attempt to commit, or an assault with intent to commit, any of those offences; or
(c)a substantially similar offence against a corresponding previous enactment; or
(d)an offence against the law of the Commonwealth, another State or a Territory corresponding to an offence referred to in a preceding paragraph.
I am satisfied that the charges against the accused form a series of offences of the same or similar character as contemplated under s 102(1) of the CP Act.
The issue to be decided in this case is whether separate trials should be ordered pursuant to s 102(6)(b) of the CP Act because the evidence relating to the counts with respect to each of the complainants is not admissible with respect to the other complainants.
Evidence of discreditable conduct
The prosecution case is that the evidence of alleged offending against each of the complainants involves cross admissible evidence of discreditable conduct. The admissibility of such evidence is to be determined pursuant to the provisions of s 34P of the Evidence Act (the Act) which relevantly provides as follows;
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)is inadmissible for that purpose (impermissible use); and
(c)subject to subsection (2), is inadmissible for any other purpose.
(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 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.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)*
(5)*
The prosecution asserts that evidence of discreditable conduct of each of the complainants is admissible with respect to the charges against the other complainants on the bases contemplated under s 34P(2)(a) and (b) of the Act. The prosecution submits that evidence is admissible for the permissible purpose not involving propensity or disposition, namely to buttress the complaint’s credibility through improbability of similar accounts reasoning and to establish a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue.
The Improbability of Account Basis
Prosecution Case
The prosecution asserts that the admissibility of the evidence of discreditable conduct pursuant to s 34P(2)(a) arises from the probative value of the similar accounts of the events or conduct of the accused by several complainants which demonstrate the improbability that the conduct about which they complained was concocted or imagined by each of them independently of the others.
The prosecution submits that the similarity of account evidence in the circumstances of this case is relevant to the issue of the credibility and reliability of each victim where the defence is likely to advance matters peculiar to each of the complainants for doubting his or her credibility and reliability where such matters are likely to be accorded greater weight if their accounts stand in isolation.
That proposition on the prosecution case is supported by the observations of Kourakis CJ in the case of R v C, CA at paragraphs 58 and 59 which follow;
The rational reason for according that defence less weight, and therefore the probative force of similarity of account evidence, lies in the improbability that several complaints, independently made, would share the substantial similarities apparent in the accounts of the complainants, given the great diversity in human behaviours and imaginations. If the similarity of account evidence excludes the hypothesis of independent concoction beyond reasonable doubt, the similarities can only be explained by collusion on the one hand or the truth of the complaints on the other.
Thus it is that on a joint trial of offences against multiple complainants, even though the ultimate question for the jury remains whether it is satisfied beyond reasonable doubt that the appellant committed each of the offences with which he is charged, a high degree of similarity in the complainants’ accounts which excludes the hypothesis of independent concoction leaves, as the practical forensic issue, whether the possibility of collusion has been excluded beyond reasonable doubt.
The prosecution submits that the test for the admissibility of discreditable conduct evidence relied upon for non-propensity use is whether the hypothesis of independent fabrication between the complainants is so improbable as to outweigh any prejudicial effect having regard to the degree of similarity between those accounts.
In this case the prosecution submits that as a matter of ordinary human experience it is improbable that each of the complainants would have independently imagined or falsified an account bearing the following shared features;
a) They were indecently touched when they were at an age of pre-puberty (6/7 to 11 years).
b) They were indecently touched by the defendant, or a man named ‘Peter’ associated with Scouts SA.
c) In each case the indecent touching of the child occurred in a situation in which the child was effectively entrusted to the informal care and supervision of the defendant, which came about through his and the child’s connection with Scouts SA.
oMS – a car ride.
oSH – a scout sleepover.
oDD – a fishing trip.
d) In each case the child was offended against in a setting in which detection by others was possible.
e) The offending comprised the same form of touching: by the insertion of the defendant’s hand inside the child’s undergarments and fondling of the child’s genitals.
f) In the case of MS and DD, the touching was accompanied by an utterance by the defendant in connection with the touching.
oMS – “How does that feel?”
oDD – “Tell me when to stop if you want.”
g) In the case of MS and DD, their childhood interactions with the defendant included other temporally proximate instances of (uncharged) intimate touching or talk.
oMS – tickled while seated on the defendant’s lap and while he had an erection.
oDD – offered a full body massage.
The prosecution submits that the evidence is cross admissible and further that the permissible use of the evidence outweighs any prejudicial effect and that the permissible and impermissible uses may be kept sufficiently separate and distinct in accordance with a requirement under s 34P(3) of the Act.
Defence Objection
Counsel for the defendant submitted written submissions in relation to the question of the cross admissibility of the evidence of each of the complainants pursuant to s 34P of the Act. The oral submissions of counsel drew upon and amplified the written submissions. The written and oral submissions addressed questions of law and focused on the application of the law to the facts of the present case. Ultimately, the defence position is that the accounts of each of the complainants cannot be admitted as similarity of account evidence having regard to the markedly different accounts given by each of the complainants.
In the defence submission none of the behaviour alleged to be ‘strikingly similar’ bears upon the issue of improbability of fabrication, coincidence or collusion. It was submitted that there is no striking aspect to any of the complainant’s narrative that meets the test in s 34P(2)(b) of the Act. It was submitted that the similarities are not such that these can only be explained by collusion or truth.
The defence submitted that given the nature of the allegations relating to the offending the court could not remove the appreciable risk that a jury would engage in impermissible propensity reasoning.
In its submissions defence identified the following to similarities between the accounts of each of the complainants;
1. There are differences in the sexual acts engaged in.
First Complainant: Touching outside the vagina.
Second Complainant: Masturbation of the accused's penis.
Third Complainant: No masturbation of accused's penis.
2. There are differences in the risk of detection.
First Complainant: Opportunistic when they were both alone.
Second Complainant: Not opportunistic with very high risk of detection.
Third Complainant: Medium risk of detection.
3. There are differences in the issue of spontaneity.
First Complainant: This was completely spontaneous.
Second Complainant: This was completely spontaneous.
Third Complainant: There was a planned activity and the removal of clothing.
4. There are differences in what was said.
First Complainant: "How does that feel?"
Second Complainant: Nothing was said.
Third Complainant: "Tell me to stop if you want."
5. There are differences in the general location of the offending.
First Complainant: In the accused's vehicle.
Second Complainant: Indoors at Scouts in a sleeping bag at night.
Third Complainant: Next to a lake during the day.
The defence also raised an objection to the evidence on the following two bases.
Firstly, that the discreditable conduct evidence would so overwhelm the jury that the defence would be deprived of the forensic opportunity to challenge the evidence of the second complainant on a prior inconsistent statement which disavowed any sexual misconduct on the part of the accused.
Secondly, the discreditable conduct evidence was not capable of establishing the identity of the accused as the offender in circumstances where the second complainant had not directly identified the accused.
Consideration
Improbability of Account Basis
In the case of R v C, CA Chief Justice Kourakis at paragraph 58 noted above observed that the probative force of similarity of account evidence relates to the improbability that several complainants accounts would share “substantial similarities”. At paragraph 59 of that decision the Chief Justice refers to accounts given by various complainants which have a “high degree of similarity”.
In the case of R v Bonython-Wright the Chief Justice observed at paragraph 48;
The degree to which the evidence of one witness is enhanced by the similar testimony of another witness would depend on the degree of detail and the peculiarity of the conduct described. The more detailed and peculiar the conduct the less likely is that the witnesses concocted the evidence independently of each other, because so great is the range of human behaviours that it is improbable that two persons could independently concoct or imagine the same details and peculiarities.
Since those cases were decided s 34P(2)(a) of the Act has been amended by the enactment of the Statutes Amendment (Child Sexual Abuse) Act 2021. The admission of discreditable conduct evidence for a permissible use now requires that the court be satisfied that the probative value of the evidence “outweighs any prejudicial effect”. The requirement which had previously existed was that the court be satisfied that the probative value of the evidence “substantially outweighs any prejudicial effect”.
I do not consider that the use of the word “substantial” in reference to similarities by the Chief Justice in the case of C, CA was included to reflect the then requirement in the test under s 34P(2)(a) of the Act. In my view, the use of the word “substantial” in the passage referred to in the case of C, CA was directed at an assessment of the probative value of the similar account evidence and not to an evaluation or assessment of the weight of that evidence as against its prejudicial effect as required by s 34P(2)(a) of the Act.
However, the amendment to the test through the removal of the requirement that the probative value of the evidence substantially outweigh any prejudicial effect, as opposed to simply outweighing such an effect, must have some bearing in determining the admissibility of such evidence.
The case of MDM v The Queen provides guidance when evaluating the improbability of similar account evidence. At paragraph 14 of that case Chief Justice Kourakis observed;
The first significant improbability which arises in evaluating similarities in the independent accounts of different child complainants, is that two or more children known to the accused both happen to fabricate or imagine that they have been sexually abused and/or happen to fabricate or imagine that the offences were committed by him.
The Chief Justice goes on to say in the same paragraph;
However, any additional similarities in the offending build on that initial improbability.
In the case of DES v The Queen at paragraph 70 Justice Doyle observed in relation to the assessment of the similarities, the focus must be on the degree of similarity between the complainant’s allegations of abuse rather than the number or regularity of the instances of abuse and further that the focus must be upon the similarity or dissimilarity that bears upon the improbability of fabrication, coincidence, or collusion.
I have approached the assessment of the probative value of the evidence of the complainants in accordance with the observations to which I have referred above.
Several the shared features as identified by the prosecution as set out above bear no or only limited probative value in determining the degree of improbability that the independent accounts of the complainants were fabricated, concocted or the product of the complainant’s imagination. I include here the age of the complainants, the name of the alleged perpetrator and the location of the alleged incident.
In my assessment the probative value of the independent accounts of the complainants arises from the following shared features;
1. The circumstances in which the accused is alleged to have formed a connection with the complainants through either direct or indirect involvement in the Scouts.
2. The opportunity to have committed the alleged abuse arising from a position of trust originating in the connection with the Scouts.
3. The nature of the alleged indecent assault upon each of the complainants, involving a touching of the genitals directly under the complainants’ garments absent any ‘testing’ of the complainants’ reaction by preliminary touching of the genitals from the outside of the garments.
4. The absence of any direct pressure on or exhortation to the complainants by the accused not to disclose the conduct to others.
In considering the weight to be attached to those shared features, I have taken into account the dissimilarities identified by counsel for the defence.
I have considered the dissimilarity between the accounts of the complainants as to the circumstances in which the opportunity arose for the alleged acts of abuse. I do not consider this to be a significant dissimilarity which would bear upon the improbability that the independent accounts were concocted, fabricated or the product of the complainants’ imagination. In my view human experience informs us that opportunistic behaviours by their very nature occur in a multitude of situations. The point here is that because of the accused’s position, he was able to create opportunities to engage in the behaviour.
I have also considered the similarity in conduct involving the second complainant which extended to causing him to touch and stroke the accused on the penis. In my view the alleged escalation of conduct involving the second complainant does not deprive the other alleged incident of the characterisation of similar. I take support from that conclusion from the decision of Justice Doyle in the case of DES v The Queen.
I have considered the dissimilarity arising from the difference in the sex between the first complainant, a female, and the second and third complainants, both males. I do not consider that this dissimilarity detracts from the probative value of the evidence. As a matter of ordinary human experience, it is well understood that there are individuals who are sexually attracted to children of both sexes and are prepared to act on that attraction. The difference in the sexes between the complainants in those circumstances should not detract from the probative value of the evidence.
In conclusion I am satisfied that the common features which do exist between the accounts of each of the complainants taken as a whole do share similarities which demonstrate the improbability that their independent accounts were concocted, fabricated or are the product of imagination.
The prejudice which attaches to the evidence is significant and arises from antipathy to the accused which will be engendered by additional allegations of sexual misconduct towards children.
In determining whether the probative value of the discreditable conduct evidence as I have found it outweighs the prejudicial effect of the evidence, I am mindful that the probative value of the evidence may potentially provide circumstantial support and buttress the credibility and reliability of the direct testimonial evidence of each of the complainants, bearing in mind that these are matters likely to be in issue at trial. Its effect in a permissible way provides significant force.
In my view the probative value of the evidence outweighs in this prejudicial effect.
I also bear in mind that the court must have regard to whether the permissible use is and can be kept sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
I am so satisfied and further the court can direct the jury in terms by which the permissible use of the evidence is clear and can be kept distinct from the impermissible use to avoid an appreciable risk of being used for an impermissible purpose.
Accordingly, I find that each of the accounts of the complainants is cross admissible and that the evidence should be admitted pursuant to s 34P of the Act.
I have also considered the following objections of the defence counsel.
Firstly, that the discreditable conduct evidence would so overwhelm the jury that the defence would be deprived of the forensic opportunity to challenge the evidence of the second complainant on a prior inconsistent statement in which he disavowed any sexual misconduct on the part of the accused.
Secondly, the discreditable conduct evidence was not capable of establishing the identity of the accused as the offender in circumstances where the second complainant had not directly identified the accused.
I do not uphold the first objection. The jury properly instructed will consider whether on all the evidence the second complainant is a credible and reliable witness.
I do not uphold the second objection. The prosecution case does not rely on discreditable conduct evidence to establish the identity of the defendant. It proposes to establish identity based on various matters of circumstantial evidence. The jury will be appropriately directed in relation to the permissible use of the discreditable conduct evidence and the evidence upon which the prosecution relies to establish the identity of the accused as the alleged offender.
The application for separate trials is therefore refused.
Propensity Basis
An assessment is required of the probative value of the evidence of discreditable conduct to establish that it discloses a proclivity on the part of the accused to engage in the conduct alleged and to act upon that proclivity.
The probative value of the discreditable conduct evidence again relies upon the shared similar features of the complainants’ accounts.
The focus of the assessment with respect to the issue of propensity is somewhat different to the focus of the assessment required when considering the probative value of the evidence to demonstrate improbability.
For the purposes of this ruling, I do not intend to articulate the assessment which I have undertaken with respect to the admissibility of the evidence to determine propensity.
I have reached the conclusion having regard to the directions to a jury that would be required in relation to the use of the same evidence to establish improbability, that any directions to a jury in relation to the impermissible use of the propensity evidence would not remove an appreciable risk of the evidence being used for that purpose.
Accordingly, I rule that the evidence should not be led for that purpose of establishing propensity.