R v MES - [2007] SASC 201

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MES
[2007] SASC 201
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Layton and The Honourable Justice Kelly)
4 June 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appellant convicted by jury of three counts of unlawful sexual intercourse - complainant first complained to the police nine years after the alleged offences - appellant appeals against conviction on two grounds - that trial Judge's Longman direction was inadequate - that trial Judge failed to direct the jury that uncharged acts must be proved beyond reasonable doubt - trial Judge left sexual attraction as one of the permissible uses of the uncharged acts - HELD: Trial Judge's Longman direction adequate - it would have been preferable if trial Judge did not mention sexual attraction in the context of the case but the failure to direct that uncharged acts must be proved beyond reasonable doubt did not result in a miscarriage of justice - appeal dismissed.
R v Nieterink (1999) 76 SASR 56; R v IK (2004) 89 SASR 406, applied.
R v RWB (2003) 87 SASR 256; R v DRG 150 A Crim R 496, discussed.
Tully v The Queen (2006) 81 ALJR 391; Longman v The Queen (1989) 168 CLR 79, considered.

R v MES
[2007] SASC 201
Court of Criminal Appeal: Vanstone, Layton and Kelly JJ

VANSTONE J: I would dismiss the appeal. I agree with the reasons of Kelly J.
LAYTON J: I agree that the appeal should be dismissed for the reasons given by Kelly J.
KELLY J:
Introduction
The appellant was tried before a District Court jury on three counts of unlawful sexual intercourse with a person under the age of 12 years. The alleged victim was his daughter “K”. He was convicted on each of the three counts and he has appealed against the convictions.
The grounds of appeal raise two main areas of complaint. The first is that the direction commonly referred to as the Longman direction[1] should have explicitly referred to the uncharged acts as well as the charged acts. The second is that the trial Judge should have directed that the uncharged acts could only be used by the jury if proved beyond reasonable doubt.
[1] Longman v The Queen (1989) 168 CLR 79
The appellant asserts that because of the cumulative effect of those deficiencies the verdicts are unsafe and unsatisfactory.
Background
The prosecution led evidence of a course of conduct which started when the child was about seven. The conviction in count one related to an act of fellatio which was said to be the first occasion when K could remember any sexual contact with the appellant. The second conviction related to an act of cunnilingus when K was about 10 and the third conviction to an act of penile penetration when K was 11 years old.
In addition to the charges, K referred to a number of uncharged acts, both inside South Australia and outside South Australia. The last such acts were two incidents which happened after K had turned 12 in Queensland, some time after the occasion of count three. Apart from the Queensland acts all the other conduct, charged or not, was said to have occurred during approximately the same time period.
K did not complain to the police about the appellant’s behaviour until 2004. The appellant was arrested in June 2005, however, there was no dispute that the appellant first became aware of some of K’s allegations in about 1996 when he was confronted by K’s mother.
In opening the case the prosecutor explained the relevance of the uncharged acts to the jury by saying they might help to explain why K could not remember all the details and all the surrounding circumstances on each and every occasion that the appellant sexually interfered with her. The prosecutor told the jury that they were an important part of the total sequence of events. The prosecutor also told the jury that this evidence might help to explain why K did not complain of the appellant’s conduct at the time, why the appellant might be confident that she would do his bidding, and that it could help to explain some of his brazen behaviour, for example, in Queensland, when he went into her bedroom despite the child’s grandparents being nearby.
The Longman direction
Counsel for the appellant complained that the Longman direction given was inadequate in that the Judge failed to distinguish between the charged and the uncharged acts when giving the warning, and he should have set out more fully the reasons for the giving of such a warning. The appellant contended that he had been prejudiced by the failure to specifically relate the warning to the categories of uncharged acts identified by the Judge in the summing up. That prejudice was compounded, it was argued, by the Judge’s emphasis when giving the warning on the earlier allegations as opposed to the later allegations. The appellant contended that there was a risk the jury might have assumed that the later allegations were more likely to be true.
The rationale for the giving of the Longman warning is to be found in the majority judgment of Brennan, Dawson and Toohey JJ. Where there are potential dangers in acting upon particular evidence which may not, without such a warning, be appreciated by the jury, a Judge is required to give an appropriate warning to the jury. In a case involving sexual allegations in circumstances where the complainant was very young at the time of the events giving rise to the charges and there has been a long delay between those events and the prosecution, a jury should be warned that it would be dangerous to convict on the uncorroborated evidence of the complainant without scrutinising the complainant’s evidence with great care. One factor in particular identified by the Court in Longman which called for the warning to be given, was the accused’s loss of means of testing the complainant’s allegations by reason of the substantial delay.
In a number of cases since Longman was decided, the Court of Criminal Appeal of this State has considered the application of Longman. In R v RWB[2] the Court considered whether the Longman warning should have been given with respect to both the charged and uncharged acts in that case. The Court held that a warning was not required with regard to the charged acts. In concluding, however, that a warning should have been given in relation to the uncharged acts, Besanko J, with whom Bleby J agreed, observed that the very same forensic disadvantages to the accused identified in Longman were present; in particular the substantial delay and the age of the complainant at the date of the first uncharged act. In the light of these factors the Court held that the jury should have been told that it would be dangerous to find the relevant uncharged acts proved unless the jury, scrutinising the evidence with respect to those acts with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. The failure to do so in that case led to the conviction being set aside.
[2] (2003) 87 SASR 256
Trial Judge’s directions
Before directing the jury as to the permissible and impermissible uses of the evidence of the uncharged acts, the Judge categorised them in the following way:
·Uncharged sexual conduct entwined with the charged conduct in counts two and three;
·Further uncharged sexual conduct – the last times in Queensland;
·Uncharged sexual conduct unspecific;
·Uncharged sexual conduct in the truck in Victoria.
After drawing the jury’s attention to the chronology of events between the first date on which the appellant was alleged to have sexually interfered with K and the date when K first complained to anyone, the Judge reminded the jury that the delay between the time of the alleged offending and the emergence of the allegations to the police was very considerable. In giving a comprehensive warning to the jury about the dangers of relying upon K’s evidence, the Judge drew attention to some of the particular forensic disadvantages which flowed from the delay. In the course of this, he made the following remarks:
The accused in this case has lost that opportunity, particularly in respect of the earlier allegations. What may have transpired, if the complaints were made promptly and he had that opportunity, cannot be known. The accused was an inter-state truck driver. He may have been able to establish that, at a particular time he was away on a journey.
The Crown case, both as to the charged and uncharged conduct, is wholly reliant upon the credibility and the reliability of the evidence of [K]….
Counsel for the appellant relied on the comments of Besanko J in RWB in making the submission that the Judge should have gone further and specifically dealt with the uncharged acts, particularly in light of the fact that the defence had pointed to some of the evidence of the uncharged acts to mount a significant attack on the complainant’s credibility.
In this case, because the Judge had categorised uncharged conduct for the purpose of directing the jury as to their permissible and impermissible use, it was said that it was all the more important that he follow the same procedure when giving the Longman warning and warn the jury specifically and separately in relation to the uncharged acts.
Discussion
It can be seen from an analysis of Longman and the cases which followed that the need for the Longman warning arises from circumstances in which there has been a lengthy delay between the happening of the events the subject of the complaint and the making of the first complaint. The prejudice to an accused person arises from the inability to test the allegations by reason of that delay or by reason of some other circumstance such as the lack of specificity as to the allegations themselves. These are factors which can arise in relation to the evidence about the charged as well as the uncharged acts and the need for the warning arises irrespective of whether the conduct has been made the subject of a specific charge. That seems to be the underlying basis for the court’s reasoning in RWB as well.
In RWB the complainant was about three or four years old when the first of the uncharged acts occurred. The first of the charged acts occurred some eight to ten years later, when the complainant was about twelve years old. The delay between the first uncharged act and the first complaint was of the order of 10 years. The delay between the last of the charged acts and the complaint was only a matter of months. It was against that background that the court considered the failure of the Judge to give any Longman warning at all.
I do not consider that case to be authority for the proposition that a separate direction in relation to both charged and uncharged acts is required when giving a Longman warning. As a general rule, the contrary proposition is correct. After all, it is the incriminating evidence of the witness as a whole which in circumstances of delay attracts the warning, rather than any particular strand of that evidence.
In R v DRG[3] Doyle CJ concluded on the facts of that case (which were comparable in this respect to the current case) that it would have been appropriate when giving the Longman direction to draw no distinction between the evidence of the charged and the uncharged acts. He considered that to draw such a distinction between these categories of evidence would cause unnecessary confusion.
[3] 150 A Crim R 496 at 504
In my view, none of the criticisms made of the warning given by the Judge in this case are justified. This was a case where the commencement of the alleged course of sexual conduct started when K was about seven years old. The last of the charged acts occurred when she was 11 and the Queensland acts within the following year, when she had turned 12 years old.
Here the Judge’s warning encompassed both charged and uncharged conduct and he related the direction to the specific facts of the case, concluding with a strong warning that it would be dangerous to rely upon K’s evidence unless it was scrutinised with great care. There was nothing about the facts in this case which called for any separate direction about the effect of delay specifically in relation to the uncharged acts. I consider, as in the case of DRG, that a separate direction would have been superfluous and may well have led to unnecessary confusion on the jury’s part.
For these reasons I do not consider that the Judge was required to do any more than he did and I would dismiss this ground of appeal.
The uncharged acts and the onus of proof
The third ground of appeal raises the issue of the appropriate directions to be given to the jury about the proof of the uncharged acts. The complaint about the Judge’s direction arises from his direction to the jury that the evidence of the uncharged conduct was capable of showing that the appellant was sexually attracted to K. It was argued that in the light of this direction the Judge was required to direct the jury in specific terms that the uncharged acts must be proved beyond reasonable doubt before the jury could make any use of them.
In fact the Judge identified five ways in which the evidence of the uncharged acts might be relevant to the jury’s consideration, including its capacity to show that the appellant was sexually attracted to K. It was not suggested that any of the other four uses would have necessitated proof beyond reasonable doubt.
The Judge’s summing up was generally clear, comprehensive and balanced. He gave the jury careful and clear directions about the permissible and impermissible uses of the evidence of the uncharged conduct. He concluded the direction with the following warnings:
There are three cautions I need to give you about this evidence of uncharged conduct.
·Firstly, you should not use this other conduct in the ways I have suggested, unless you are satisfied that some or all of it has been proven to have occurred.
·Secondly, if you are satisfied that the accused has perpetrated some or all of this other conduct, then you must not reason that he must therefore have committed the sexual acts the subject of the charges on the information; that is, you must not follow this process: He did it on those other occasions, therefore he must have done it on the charged occasion.
·Thirdly, if you conclude that the accused did perpetrate this other conduct, it would be wrong of you to conclude that, therefore, he is the sort of person who would be likely to commit the offences for which he is charged; you know, the where there is smoke there is fire method of reasoning. You are not permitted to do that.
It is only in the five ways I have mentioned that you are to use this uncharged conduct. If you are not satisfied that all or some of the uncharged conduct has been proved, then put it aside and disregard each and go on with your deliberations based on the remainder of the evidence.
Elsewhere in the summing up the Judge referred to the defence cross-examination of K as to the uncharged conduct which occurred in the truck in Victoria and explained to the jury how that cross-examination might in a sense undermine the credibility and reliability of K’s evidence about other matters.
The prosecution did not rely on the uncharged acts for the purpose of establishing any sexual attraction on the part of the appellant towards K. The first time the topic was mentioned was in the course of the Judge’s summing up. The question that now arises is whether the fact that he did so has resulted in a miscarriage of justice.
Discussion
At the outset, it should be noted that although the point was not argued on this appeal, the issue of whether uncharged acts generally need to be proved beyond reasonable doubt before a jury can make any use of them is one on which a number of different views have been expressed. The High Court recently considered the issue in Tully v The Queen[4]. However, the issue was not resolved.
[4] (2006) 81 ALJR 391
In the absence of any High Court authority to the contrary, I consider the principles enunciated by the Court of Criminal Appeal in R v Nieterink[5] and R vIK[6] to be the law which applies in this state. Doyle CJ said in R v IK:
It is the charges that must be proved beyond reasonable doubt, not the surrounding facts, and in particular not facts that explain the conduct of the accused or complainant, such as submission by the complainant to the accused, the failure by the complainant to complain, and why the accused might have been confident in taking opportunities to commit offences.
The trial Judge should avoid introducing a reference to a lesser standard of proof beyond reasonable doubt, when referring to evidence of uncharged acts. To do so is likely to confuse the jury. As I said in Nieterink, it is safer and simpler, if something is to be said, to refer to the uncharged acts being proved, even though that might convey to the jury that what is required is proof beyond reasonable doubt. However, it is not necessary to say anything at all about the standard of proof, even though that might leave the jury thinking that what is required is proof beyond reasonable doubt.[7]
[5] (1999) 76 SASR56
[6] (2004) 89 SASR 406
[7] Ibid, at 424
The Chief Justice went on to discuss the standard of proof applicable where the uncharged acts might be used to prove sexual attraction or guilty passion. He said as follows:
Usually evidence of uncharged acts will not be admitted and used to prove the existence of an improper sexual relationship, or a guilty passion, relied upon in turn to prove the commission of the offence in question, on the basis that either of these matters, if established, would make it more likely that the offence was committed. Usually the jury will be warned against reasoning in that fashion. Further, if evidence is to be used on that basis, my tentative view is that that would make it appropriate to warn the jury not to act on the evidence unless satisfied beyond reasonable doubt that it was true. Gipp indicates that is the course to be taken in that situation, and in any case in which the uncharged acts are used to support a conclusion of guilt based on propensity reasoning.[8]
[8] Ibid
Although on that basis it would appear that the criminal standard would apply if the uncharged acts were to be used in this way, for the reasons which follow I do not consider that the direction given could have resulted in a miscarriage of justice.
It is noteworthy that nowhere in the summing up did the Judge introduce the notion that there was any other standard of proof apart from the standard of proof beyond reasonable doubt. Moreover, when directing on the elements of the offence he did not say that it was the elements, as opposed to any other matters, which had to be proved beyond reasonable doubt.
Immediately after directing the jury as to the permissible and impermissible uses of the evidence of the uncharged acts, the Judge directed the jury in quite unmistakeable terms, that the jury could not use that evidence to infer any propensity on the part of the appellant to have committed the offences with which he was charged.
The fact that the prosecution did not rely on the uncharged acts for the purpose of establishing sexual attraction and indeed relied on the uncharged acts for very limited purposes, the fact that the Judge warned the jury against reasoning by way of propensity and the fact that he did not refer to any other standard of proof are matters which need to be taken into account when assessing the effect that the Judge’s direction, concerning the capacity of the uncharged acts to establish sexual attraction, might have had on the jury’s reasoning.

In my view, in the light of these factors, it is likely that the jury would have taken the view that everything had to be proved beyond reasonable doubt. Moreover, the Judge concluded the directions in relation to the uncharged acts with a clear statement that if they were not satisfied that all or some of the uncharged conduct had been proved, then they should disregard that evidence.
There is a further matter and it relates to the way in which the jury is likely to have approached the assessment of K’s credibility. In my view it is unlikely that the jury would have approached its task in a piecemeal fashion, compartmentalising it. This is particularly so in light of the fact that the timeframe of the events giving rise to both the charged and the uncharged acts was approximately the same, the jury were warned that proof of both the charged and uncharged acts was wholly dependant on K’s reliability and they were directed that the charges must be proved beyond reasonable doubt. No other standard of proof was ever mentioned.
It would have been better if the Judge had not mentioned sexual attraction in the context of this case. However, for these reasons I do not consider that in this case it could have resulted in any miscarriage of justice.
I would dismiss the appeal