R v MJJ; R v CJN

[2013] SASCFC 51

Supreme Court of South Australia

(Court of Criminal Appeal)

R v MJJ, R v CJN

[2013] SASCFC 51

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Vanstone)

14 June 2013

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - OF COUNTS - BY STATUTE - SAME FACTS OR SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - GENERAL PRINCIPLES

The appellant MJJ was convicted of one count of unlawful sexual intercourse and two counts of indecent assault against his daughter SJJ.  He was also convicted of an aggravated assault against his son JJ.  The appellant CJN was convicted of two counts of procuring her daughter to commit an indecent act and three offences of aggravated assault against her other children SJJ, JJ and MMJJ.

Appeal points MJJ: (1) whether an error of law and miscarriage of justice arose by reason of the joint trial - (2) whether there was an error of law in the admission of evidence of discreditable conduct in the commission of uncharged offences against CJN and their children and of the squalid and deprived conditions in which the children were raised - (3) whether there was an error of law in directing the jury that it could return an alternative verdict of guilty of indecent assault when the Judge had ruled that there was no case to answer on a charge of unlawful sexual intercourse - (4) whether there was an error in the admission of evidence of an occasion on which the appellant CJN, in the absence of MJJ, accused her daughter of having sexual intercourse with MJJ and of a prison admission made by CJN in which she implicated MJJ - (5) whether an error of law and miscarriage of justice arose by reason of the decision of the DPP not to call three of the appellant's children and the failure of the Judge to order the DPP to do so or to call the children himself - whether there should have been a Basha inquiry - (6) whether an application to appeal against sentence should be granted - whether the sentence imposed was manifestly excessive.

Held per Kourakis CJ (Vanstone J agreeing) and Gray J: (1) no error of law or miscarriage of justice arose by reason of the joint trial.

Held per Kourakis CJ and Vanstone J: (2) no error of law in the admission of discreditable conduct in the commission of uncharged offences against CJN - the Judge correctly directed the jury not to use the evidence as propensity evidence, no error of law and no miscarriage of justice has been shown.

Held per Vanstone J: Discussion of structure and changes effected by s 34P Evidence Act 1929. Trial judge's approach not in error. Appeal dismissed.

Held per Gray J: (2) the Judge misapprehended his obligations under section 34P of the Evidence Act 1929 (SA) - the Judge's decision concerning the admissibility of the evidence was flawed - the Judge's misapprehensions amounted to errors of law - the correct application of section 34P would, however, inevitably have led to the admission of the evidence - the evidence was probative, relevant and admissible - the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have had on MJJ.

Held per Kourakis CJ (Vanstone J agreeing): (3) SJJ did not give evidence of the conduct which the prosecution alleged constituted count 7.  The alternative verdict of indecent assault was therefore not available.

Held per Gray J: (3) count 7 remained before the jury - the jury delivered their verdicts on that count, including a verdict of not guilty of unlawful sexual intercourse - the Judge gave directions on there being no case to answer on count 7 and posed the alternative prior to defence counsel's opening - no miscarriage of justice arose.

Held per Kourakis CJ (Vanstone J agreeing) and Gray J: (4) no error in the admission of the evidence of CJN accusing her daughter of having sexual intercourse with MJJ and of a prison admission made by CJN implicating MJJ.

Held per Kourakis CJ (Vanstone J agreeing) and Gray J: (5) no miscarriage of justice arose from the DPP's decision to not call three of the appellant's children, nor by reason of the Judge not ordering the DPP to call them.

Held per Gray J: (5)  MJJ's submission that the Judge erred in declining a Basha inquiry before the defence called the witnesses CJ, MMJJ and TJ should be dismissed.

Held per Kourakis CJ (Vanstone J agreeing): (6)  in all of the circumstances, the sentence was lenient - however, it is necessary to resentence MJJ having set aside the conviction on count 7 - a head sentence of 11 years, and a non-parole period of 8 years and 9 months imposed.

Held per Gray J (dissenting): (6) the sentence imposed was within the sentencing discretion of the Judge - no error was made in the sentencing process by the Judge - the sentence was within the Judge's discretion.

Appeal Points CJN:  (1) whether an error of law and miscarriage of justice arose in the admission of evidence of discreditable conduct relating to the sexual abuse of SJJ by MJJ which was unrelated to the procurement charge - (2) whether an error of law and miscarriage of justice arose in the admission of discreditable conduct evidence of uncharged acts of violence against her children and of the squalid conditions in which her children were raised - (3) whether a miscarriage of justice arose in leaving the evidence of the conversation between the appellant and SJJ in which the appellant accused SJJ of having a sexual relationship with MJJ as probative of the procurement charge.

Held per Kourakis CJ (Vanstone J agreeing) and Gray J: appeal dismissed - (1) and (2) no error of law or miscarriage of justice in the admission of discreditable conduct evidence - the Judge correctly directed the jury not to use the evidence as propensity evidence - (3) no miscarriage of justice in leaving evidence of the conversation between the appellant and SJJ accusing SJJ of having a sexual relationship with MJJ as probative of the procurement charge.

Evidence Act 1929 (SA) Part 3 Division 3, s 34P, s 34O, s 34P(1), s 34P(2)(a), s 34P(2)(b), s 34Q, s 34S(1), s 34S(b), s 34T; Criminal Law Consolidation Act 1935 (SA) s 10(2), s 20(3), 25, s 49(3), s 56, s 63B(1), s 75, s 278, s 353(1); Criminal Law (Sentencing) Act 1988 (SA) s 29D; Juries Act 1927 (SA) s 57(3), referred to.
Ludlow v Metropolitan Police Commissioner [1971] AC 29, applied.
De Jesus v The Queen (1986) 22 A Crim R 375; Packett v The King (1937) 58 CLR 190; R v Armstrong (1990) 54 SASR 207, distinguished.
R v D (1997) 69 SASR 413; Hoch v R (1988) 165 CLR 292; Pfennig v R (1995) 182 CLR 461; R v Hissey (1973) 6 SASR 280; Roach v The Queen (2011) 242 CLR 610; The Queen v McDonald (1979) 21 SASR 198; R v Liddy (2002) 81 SASR 22; R v Smith (1998) 71 SASR 543; R v M, BJ (2011) 110 SASR 1; Makin v Attorney-General for New South Wales [1894] AC 57; R v Wilson (1971) 123 CLR 334; R v Tucker (1984) 36 SASR 135; Director of Public Prosecutions v Boardman [1975] AC 421; Perry v The Queen (1982) 150 CLR 580; Phillips v The Queen (2006) 225 CLR 303; Shepherd v R (1990) 170 CLR 573, discussed.
R v Nieterink (1999) 76 SASR 56; R v M, BJ (2011) 110 SASR 1; HML v The Queen (2008) 235 CLR 334; R v Ball [2009] SADC 40; R v P, MG [2009] SADC 148; BBH v The Queen (2012) 245 CLR 499; R v Liddy (2002) 81 SASR 22; R v Smith (1998) 71 SASR 543; R v M, BJ (2011) 110 SASR 1; The Queen v Jacobs (1988) 143 LSJS 14; R v Dawson-Ryan (2009) 104 SASR 571; R v Collie (1991) 56 SASR 302; Byrne v Godfree (1997) 96 A Crim R 197; R v Van Bay Che (1988) 2 NSWLR 66; R v Fitzpatrick (1988) 50 SASR 10; Ayles v R (2008) 232 CLR 410; Director of Public Prosecutions v Merriman [1973] AC 584; Santon v Abernathy (1990) 19 NSWLR 656; R v Salmon [1969] SASR 76; W, JD v Police (2005) 91 SASR 189; R v Luczkowski (1990) 54 SASR 169; Sutton v The Queen (1984) 152 CLR 528; R v Harbach (1973) 6 SASR 427; Pfennig v The Queen (1995) 182 CLR 461; Hoch v The Queen (1988) 165 CLR 292; Wilson v The Queen (1970) 123 CLR 334; Harriman v The Queen (1989) 167 CLR 590; R v Hissey (1973) 6 SASR 280; R v Olasiuk (1973) 6 SASR 255; R v Etherington (1982) 32 SASR 230; R v Beserick (1993) 30 NSWLR 510; R v Lock (1997) 91 A Crim R 356; HML v The Queen (2008) 234 CLR 334; The Queen v Apostilides (1983) 154 CLR 563; Richardson v The Queen (1974) 131 CLR 116; Whitehorn v The Queen (1983) 152 CLR 657; R v Bunting & Others (No 2) (2003) 230 LSJS 397; R v Sandford (1994) 33 NSWLR 172; R v Kennedy (1997) 94 A Crim R 341; Benbolt v The Queen (1993) 60 SASR 7; R v Horstmann [2010] SASC 103; R v Morse (1979) 23 SASR 98; R v D (1997) 69 SASR 413; R v Creed (1985) 37 SASR 566; R v Power [2003] SASC 288; R v Robinson [2007] SASC 105; R v Matthews (2005) 91 SASR 196, considered.

R v MJJ, R v CJN
[2013] SASCFC 51

Court of Criminal Appeal:  Kourakis CJ, Gray and Vanstone JJ

1. KOURAKIS CJ:      The appellant MJJ was convicted of one count of unlawful sexual intercourse and two counts of indecent assault against his daughter SJJ.  He was also convicted of an aggravated assault against his son JJ.  The appellant CJN was convicted on two counts of procuring her daughter SJJ to commit an indecent act and three offences of aggravated assault committed against her children SJJ, MMJJ and JJ.

2. The appellants’ grounds of appeal against conviction can be summarised as follows:

   MJJ

   ·error of law and miscarriage of justice by reason of the joint trial of both appellants;

   ·error of law in the admission of evidence of discreditable conduct of the commission of uncharged offences against CJN and their children and of the squalid and deprived conditions in which the children were raised;

   ·error of law in directing the jury that it could return an alternative verdict of guilty of indecent assault when the Judge had ruled that there was no case to answer on a charge of unlawful sexual intercourse;

   ·error of law in the admission of evidence of an occasion on which the appellant CJN, in the absence of MJJ, accused SJJ of having sexual intercourse with MJJ and of a prison admission made by CJN in which she implicated MJJ;

   ·error of law and miscarriage of justice by reason of the decision of the Director of Public Prosecutions not to call three of the appellant’s children and the failure of the Judge to order the Director to do so or to call the children himself.

   CJN

   ·error of law and miscarriage of justice in the admission of evidence of discreditable conduct relating to the sexual abuse of SJJ by MJJ which was unrelated to the procurement charges;

   ·error of law and miscarriage of justice in the admission of discreditable conduct evidence of uncharged acts of violence against her children and of  the squalid conditions in which her children were raised, and

   ·miscarriage of justice in leaving the evidence of the conversation between the appellant and SJJ in which the appellant accused SJJ of having a sexual relationship with MJJ as probative of the procurement charge.

3. I would allow the appeal of MJJ against the alternative verdict of indecent assault but would dismiss the appeals against the other convictions.  I would dismiss the appeal of CJN.  My reasons follow.

   The Offences – MJJ

4. The offence of unlawful sexual intercourse was alleged to have been committed between May 2008 and April 2011 at Woodville Gardens.  It was particularised as the first occasion on which penile vaginal intercourse took place in Woodville Gardens.  SJJ was then 14 years old.  SJJ testified that the sexual intercourse took place in the lounge room of the family’s Woodville Gardens home and that MJJ made her dress in a sexually suggestive way before the offence took place.

5. The conviction of the first of the indecent assault offences was returned as an alternative to a charge of unlawful sexual intercourse which had been charged as count 7 of the Information.  The prosecution had alleged in its opening on count 7 that the offending comprised penile vaginal penetration, which had occurred on the day after SJJ’s 15^th birthday in her bedroom in Woodville Gardens and had been preceded by indecent touching.    SJJ testified, consistently with the opening, that MJJ indecently touched her on her breasts and vagina on that occasion but did not claim that intercourse had also taken place. 

6. The second offence of indecent assault was committed at Burton between April and August 2011.  SJJ was aged 15.  SJJ testified that she was asleep in the same bed as the appellants when she woke to find MJJ touching her breasts.  He stopped when CJN stirred.

7. The offence of aggravated assault was committed at Burton between July and August 2011 against MJJ’s son JJ who was then just three years of age.   SJJ testified that she saw MJJ pick JJ up and throw him against a shipping container.  Her evidence was supported by the witness Smith.  JJ was not called to give evidence. 

   The Offences – CJN

8. The offences of procurement of which CJN was convicted were committed on two consecutive days between January and April 2011 at Woodville Gardens.  SJJ testified that CJN went into her bedroom and told her to have sex with her father.  SJJ refused.  SJJ testified that CJN “went on about it” for months after those two days. 

9. The first offence of aggravated assault of which CJN was convicted was committed between April and July 2011 at Clearview.  SJJ testified that CJN punched and hit her to the face and back.  The assault was observed by another witness Harkin.  Harkin testified that CJN hit SJJ with her fist causing her to fall to the ground. 

10. The second offence of aggravated assault was committed against CJN’s child MMJJ in July 2011 at Burton.  SJJ testified that she saw CJN kick MMJJ with steel capped boots.  SJJ’s evidence was supported by the witness Heppenstal who saw CJN push MMJJ into the wall of an office and kick him with her steel capped boots.  That evidence was also generally supported by the witness Harkin.   

11. The last of the aggravated assaults committed by CJN was committed between July and August 2011 at Burton against her son JJ who was then aged three.  The evidence against CJN was given by the witness Smith who testified that CJN hit JJ with a white studded belt.

    Discreditable Conduct – s 34P

12. The admissibility of discreditable conduct is now regulated by Part 3 Division 3 and in particular s 34P of the Evidence Act 1929 (SA) (the Evidence Act) which provides:

    34P—Evidence of discreditable conduct

    (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 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.

    (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.

    …

13. Section 34O of the Evidence Act provides that the provisions of Part 3 Division 3 of the Evidence Act prevail over the common law to the extent of any inconsistency. That provision implicitly accepts the continued operation of common law principles which are not inconsistent with Part 3 Division 3 of the Evidence Act. The common law authorities which have considered the probative force of discreditable conduct evidence, and the weighing of its probative force against its prejudicial effect, continue to inform the application of s 34P of the Evidence Act. I respectfully agree with the observations of Vanstone J in this respect. Part 3 has modified the common law in two important aspects. First, the rule derived from common law authorities in Hoch v R,[1] which precluded evidence of similar offending on different complainants when there was a possibility of concoction, has been abrogated by s 34S(b) of the Evidence Act. Furthermore, s 34S(1) of the Evidence Act has abrogated the rule stated in Pfennig v R[2] which precluded discreditable conduct evidence when there is a reasonable explanation of that evidence consistent with innocence.

    [1] (1988) 165 CLR 292.

    [2] (1995) 182 CLR 461.

14. Section 34P(1) of the Evidence Act provides that evidence of discreditable conduct is inadmissible subject to the decision of a trial judge to admit the evidence pursuant to s 34P(2) of the Evidence Act.[3] The question whether or not to admit evidence pursuant to s 34P(2) of the Evidence Act is one of law.

    [3]    Even though it is now only of academic interest in this State, I record my view that evidence of the kind which is commonly referred to as relationship evidence was always subject to the common law exclusionary rule which applied to discreditable conduct even though its admissibility was not governed by the Pfennig test which applied only to the tender of evidence of discreditable conduct for a propensity purpose:  see HML v The Queen (2008) 235 CLR 334 at 358; cf R v Nieterink (1999) 76 SASR 56 at 71 [75].

15. It is plain enough that in applying s 34P of the Evidence Act the probative value of the evidence of discreditable conduct can only be assessed in the context of all of the evidence on which the prosecution relies and to which it has a relevant connection. However, I doubt that the factual assumptions on which the Pfennig test was applied have the same part to play in the application of s 34P of the Evidence Act.[4]As Vanstone J has pointed out in [234]-[237] of her reasons, the probative weight and admissibility of an item of evidence is determined by the application of legal principle, and the relevance principle in particular, to the matrix of other evidence and the legal issues arising in the trial.

    [4]    HML v The Queen (2008) 235 CLR 334 at 398 [170] per Hayne J; 428 [284] per Heydon J; 501 [510] per Kiefel J; Phillips v The Queen (2006) 225 CLR 803 at 322-323 [60] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.

16. A decision to admit the evidence of discreditable conduct based on one or more identifiable and permissible purposes does not preclude the Judge from leaving the evidence of discreditable conduct to the jury for other additional purposes. The identification of an additional permissible purpose will generally add to the probative weight of the evidence relative to its prejudicial effect. However, before leaving an additional use which relies on a particular propensity, or which is closely linked to a prejudicial effect, the Judge should ensure that the “strongly probative value” test in s 34P(2)(b) of the Evidence Act has been satisfied and that the “sufficiently separate” consideration in s 34P(3) of the Evidence Act, has been taken into account. Ultimately, on an appeal, it will be the legal conclusion reached by the Court of Appeal on the probative force of the uses left to the jury which will be determinative and if the evidence is admissible any error made by the trial judge in reaching the same conclusion is of no consequence.

1. In this case, because I have reached the conclusion that the evidence was correctly admitted for all of the uses left to the jury, and indeed more, it is not necessary to decide whether the Judge erred in his reasoning to the same legal conclusion.  Nonetheless, I make the observation that it is not obvious to me, reading the Judge’s ruling as a whole, that he proceeded on the erroneous basis that the evidence was prima facie admissible.  I read the Judge’s reasons for admitting the evidence to involve, first, a finding that the probative weight of the evidence justified its admission, and, secondly, a finding that there was no reason to exercise the residual discretion to exclude it.

2. The impermissible use identified in s 34P(1) of the Evidence Act is the drawing of an inference of guilt from the fact that the accused has engaged in other conduct which has no relevant connection to the offence other than to share the epithet discreditable. Evidence of discreditable conduct of that kind may, admittedly with some imprecision, be described as evidence of a mere, or general, propensity. Section 34P(2)(b) expressly provides for the admission of discreditable conduct evidence which shows a particular propensity or disposition of the defendant. The particular propensity or disposition must be strongly probative of the offence charged, and outweigh its prejudicial effect. Discreditable conduct which has a permissible use, other than by way of demonstrating a particular propensity, need only have a probative value, whether weak, moderate or strong, which substantially outweighs its prejudicial effect.[5]

   [5]    Evidence Act 1929 (SA), s 34P(2)(a).

3. At the core of the assessment of the probative value of discreditable conduct evidence are two analytical steps.  The first is to identify the particular fact which is in issue.  The second is to consider how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact.  Resorting to generalities such as “context”, “background” and “underlying unity” will seldom illuminate the analysis. 

   Discreditable Conduct – The Evidence

4. Apart from the direct evidence of the offences charged, there was a substantial body of evidence of other sexual abuse of SJJ by MJJ, and the physical abuse of SJJ and her siblings by both appellants.   It is summarised in the following paragraphs.  The prosecution contends that that evidence, which plainly enough is evidence of discreditable conduct, made the commission by the appellants of the actus reus of the offences respectively charged against them more probable.

5. SJJ testified that MJJ would often hit the children and would warn them not to complain to anyone about the violence.  SJJ testified that MJJ would also assault CJN and warn her not to complain to anyone.   SJJ also testified that she and her siblings were often hit by CJN.  The assaults included punching and whipping with a belt.

6. The witness Hepenstall testified that she had seen CJN yell at and abuse her children, and kick her son MMJJ.  The witness Smith gave evidence of CJN hitting her son JJ.  The witness Harkin saw CJN kick, punch and abuse her children. 

7. There was also a substantial body of evidence that the children were poorly fed and housed.  SJJ testified that there was so little food that the children would fight over it.  Hepenstall testified that she had witnessed the children ask for food.  Hepenstall described the poor nutritional value of the food which she often saw the family eat and the appalling state of the family’s accommodation.  The witness Smith testified that on occasions she provided food to the children.  She testified that the premises at Burton were filthy.  Harkin also testified about the lack of adequate nourishment for the children and that she took food to them.  The witness Baker testified that he had heard MJJ say, referring to the lack of food, “Fuck’em, they can starve”.  The witnesses Blanch and Gorlick also gave evidence of the disgusting state of the house.

8. In my view, the evidence of the uncharged sexual and violent assaults committed by MJJ against SJJ was strongly probative of the commission of the offences with which he was charged.  The absence of evidence that SJJ had made any earlier, or more frequent, complaints was capable of casting doubt on her account of the commission of the charged offences.  The evidence of MJJ’s sexual and other violence against SJJ addressed that improbability by explaining SJJ’s failure to complain earlier.[6]  The use of the evidence for those purposes does not rely on propensity reasoning.

   [6]    R v Nieterink (1999) 76 SASR 56; R v M, BJ (2011) 110 SASR 1; HML v The Queen (2008) 235 CLR 334 at [9] per Gleeson CJ; [272]-[273] per Heydon J; [425] per Crennan J; [513] per Kiefel J.

9. In my view, the evidence was also relevant because it showed that MJJ’s relationship with SJJ was not one based on the natural instinct of care and protection which characterises the relationship between father and daughter.  The characteristic relationship between father and daughter makes the commission by a father of offences of the kind with which MJJ was charged relatively improbable.  For the reason on which I elaborate in [35-[40] below, the evidence of sexual and violent offending rebuts the inference of innocence which might otherwise be drawn from the relationship of father and child.   The use of the evidence for that limited purpose does not employ propensity reasoning but, depending on the precise finding as to the nature of the relationship, a propensity to commit the offence charged might also, incidentally, be disclosed.

10. In my view, the evidence of other sexual offending by MJJ illustrates the observation just made and is admissible, both to rebut the inference of innocence which arises from the parental relationship and as propensity evidence.  The evidence of uncharged sexual conduct strongly supports an inference of sexual attraction which, in turn, circumstantially supports the direct evidence of the charged offences.[7]  The Pfenning test no longer applies to the admissibility of that evidence because it has been abrogated by s 34S(1) of the Evidence Act.[8]  It is sufficient that the evidence has a strong probative value which outweighs its prejudicial effects.  In this case, the evidence of Dale Baker, who described finding SJJ wearing lingerie in MJJ’s presence on a visit to the family home, could properly have been left to the jury as evidence which strongly supported SJJ’s testimony by tending to demonstrate MJJ was sexually attracted to SJJ.  However, as we shall see, the Judge did not leave the use of the evidence in that way to the jury.

    [7]    R v Ball [2009] SADC 40; R v P, MG [2009] SADC 148.

    [8]    Cf BBH v The Queen (2012) 245 CLR 499 at [153] per Crennan and Kiefel JJ.

11. The evidence of MJJ’s assaults on his other children and on CJN was also relevant against MJJ because it explained why SJJ, having witnessed such offences against her mother and siblings, did not complain earlier. That use does not rely on propensity reasoning. It is also further evidence of the violence and abuse which characterised MJJ’s relationship with his family.  The evidence, in its totality, discloses a pervasive domestic environment of violence, abuse and deprivation which makes it more probable, than would otherwise have been thought, that MJJ committed the offences charged against his own children.  The use of the evidence in that way does not involve propensity reasoning.

12. I acknowledge that the evidence of MJJ’s sexual offending against SJJ is probably not relevant to the charge of assaulting JJ.  However, it is unlikely that the jury would have reasoned from the commission of the sexual offences against SJJ to the offences of a non-sexual violence against JJ.  I also acknowledge that the evidence of the assaults was insufficient to establish a particular propensity or disposition to assault JJ or any of MJJ’s other children.   However, the Judge’s admonition against bearing MJJ a general prejudice, and his Honour’s directions not to reason from propensity adequately guarded against such a miscarriage of justice arising out of the prejudicial effect of that evidence.

13. The evidence of violence committed by CJN against SJJ and the other children was relevant to the procurement and assault charges brought against her in an analogous way to that which I have outlined in the case of MJJ.  It explains the failure of SJJ to make an earlier complaint about CJN’s conduct.  The use of the evidence for that purpose does not rely on propensity reasoning.  It also rebuts the improbability that CJN would commit the procurement offences because of her maternal relationship to SJJ.  It is not evidence that shows a particular propensity from which an inference of guilt might be drawn.  However, it is again my view that, as in the case of MJJ, the Judge’s direction sufficiently safeguarded from the risk of the jury so acting.

14. The evidence of CJN’s violence against her children was also relevant to the charges against MJJ in the same way as the evidence of his sexual and violent assaults was admissible against her.  The evidence had a tendency to show that neither parent harboured the protective instincts towards their children, which a parent ordinarily has, because they continued their relationship when they knew of the abuse inflicted on the children by them, together, jointly and individually. 

15. The evidence that MJJ sexually assaulted SJJ was also relevant to the charges against CJN because it is improbable that CJN would attempt to procure SJJ to engage in sexual relations with MJJ unless she believed that MJJ was disposed to engage in that conduct.  The fact of his offending was a probable source of that knowledge.  The evidence also increased the probability of the truth and reliability of the testimony of witnesses who claimed that CJN had spoken of knowledge about MJJ’s sexual offending against SJJ.  The use of the evidence to explain CJN’s preparedness to ask such a thing of her own daughter and to corroborate the reliability of those witnesses does not rely on propensity reasoning.

16. The evidence of MJJ’s sexual offending against SJJ was also relevant to the procurement charges brought against CJN because it could explain why SJJ did not complain earlier of CJN’s conduct.  Finally, it tended to show that CJN did not have the maternal instinct to care for, and protect, her children, which she would otherwise be expected to have, because she remained with MJJ after she became aware of his offending. 

17. The evidence of MJJ’s non-sexual violence against his children was relevant in the case against CJN for analogous reasons to those given in the preceding paragraph.

18. The evidence of the squalid conditions and lack of nutrition explained the failure of the children, who were the victims of the various charged offences, to complain.  Children who are kept in abject living conditions are more likely to be so subjugated that they will not complain about the commission of offences, of the kind with which the appellants were charged, than children who are properly cared for.  It was also relevant to the cases brought against both appellants because it showed that they were not bound to their children by the protective bonds which are the ordinary incident of parental relationships and which would otherwise found an inference that they did not commit the offences alleged against them.   I elaborate on the relevance of the evidence that the appellants lacked the protective bonds which characterise parental relationships in the paragraphs which follow.

    Abusive parental relationships – relevance further explained

19. It is a fundamental human instinct of parents to protect and nurture their children.  If the evidence on a charge of assault brought against a parent with respect to his or her child was limited to the direct evidence of the assault itself, the tribunal of fact would be entitled to weigh that evidence against the improbability, drawn from an understanding of the human characteristic to which I have just referred, that a parent would so act.  If a complainant were to give evidence of a protracted course of offending, that evidence would call into question the validity of so reasoning, even though the human drive to nurture children would remain a reason to doubt that the course of violence was inflicted.  Obviously, items of independent evidence of conduct which is inconsistent with that parental characteristic may have an important bearing on the final resolution of the issue.

20. The evidence of MJJ and CJN’s chronic abuse of their children showed that it may not be sound to reason that the common characteristics of a parental relationship rendered it improbable that the appellants committed the offences charged. In my view, the use of the evidence in that way does not involve propensity reasoning.  The evidence is not used positively to reason that they are more likely to have committed the charged offences because they had engaged in the uncharged conduct.  It is used defensively to rebut the view which might otherwise be taken of the improbability of parents offending in the way alleged.  Nonetheless, I acknowledge the subtlety of the distinction.

21. The relevance of evidence of this nature is well understood in the context of offences of violence committed by one party to a domestic relationship against another.  In R v Hissey,[9] this Court considered the admissibility of evidence of a long course of violence committed by the accused against his de facto wife.  The body of evidence of the violent relationship included evidence of extensive bruising observed on the deceased, admissions by the accused to using force against his partner and direct observation evidence of one act of violence.  The Court in R v Hissey explained the proper use of that evidence in this way:[10]

    Evidence of this nature is not to be led as evidence of bad character or of a tendency to use violence on the part of the appellant. Such evidence is admissible for the purpose mentioned by the learned trial Judge, namely that of showing the relationship existing between the appellant and the deceased (Wilson v. The Queen). We think that it was relevant and indeed important for the jury to know the general terms upon which the parties were living. If evidence of this nature were to be excluded as being technically inadmissible, then equally it would be technically inadmissible for evidence to be tendered to the jury which might be favourable to an accused person, for example of a man having lived with his wife on terms of affection and harmony over a long period of years; and we think that such evidence would clearly be relevant and indeed important. When evidence of this kind is admissible it is admissible not only to prove the intent of the accused, but also the fact of the crime: R. v. Ball, per Lord Atkinson at p. 68; Wilson v. The Queen, per Barwick C.J. at p. 339. So here the evidence was admissible not only to prove malice aforethought, but also to prove that the appellant was responsible for the death of the deceased. The jury evidently declined to give effect to it for the former purpose, since they acquitted the appellant of murder, but they were at liberty to use it for the latter.

    [9] (1973) 6 SASR 280.

    [10] (1973) 6 SASR 280 at 288-289.

22. The relevance of evidence of prior abuse of the sort to “the general terms upon which the parties were living”, and the distinction between that use and the use of evidence to show propensity was recently explained by Crennan and Kiefel JJ in Roach v The Queen:[11]

    The purpose of the evidence in Pfennig may be contrasted with that for which the evidence in question was tendered in the present case. Here the complainant gave direct evidence both of the alleged offence and of the “relationship” evidence. The latter evidence, which included evidence of other assaults, was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant’s conduct on the day of the offence would not appear “out of the blue” to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury.

    ...

    Moreover, a view that evidence of the history of a relationship, including the conduct of one party to it towards the other, is not relevant other than as to the other person’s propensity does not accord with what was said by Menzies J (with whom McTiernan and Walsh JJ agreed) in Wilson v The Queen to which, it will be recalled, reference was made by the Attorney-General for Queensland in the debate on the Bill containing s 132B. Menzies J said:

    “It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence – which rests fundamentally upon the requirement of relevancy, ie having a bearing upon the matter in issue – to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.”

    In the present case the evidence, if accepted, was capable of showing that the relationship between the appellant and the complainant was a violent one, punctuated as it was with acts of violence on the part of the appellant when affected by alcohol. Without this inference being drawn, the jury would most likely have misunderstood the complainant’s account of the alleged offence and what was said by the appellant and the complainant in the course of it. To an extent Holmes JA acknowledged this in the conclusions to her reasons. Whilst her Honour identified the relevance of the evidence as showing the particular propensity of the appellant, she also concluded that it made the appellant’s conduct in relation to the alleged offence intelligible and not out of the blue.

    [Citations omitted; underlining added]

    [11] (2011) 242 CLR 610 at [42]-[45].

23. I acknowledge, as did Crennan and Kiefel JJ in Roach, that the evidence of discreditable conduct which rebuts the existence of a caring relationship might also demonstrate a propensity to violence.  It may do so by showing that the accused often resorts to violence as a means of imposing his or her will or out of exasperation.  The strength of the evidence of propensity will vary greatly depending on the frequency, duration and temporal proximity of the discreditable conduct and the similarity between the circumstances of the charged offences and the discreditable conduct.

24. However, the capacity of the evidence to demonstrate propensity does not preclude the admissibility of the evidence pursuant to s 34P(2)(a) of the Evidence Act for a permissible purpose other than propensity. All that is necessary is that the probative weight of the evidence for the non-propensity purpose substantially outweighs the prejudice. If evidence relied on for a permissible purpose, other than propensity, which happens to show propensity, must also pass the test in s 34P(2)(b) and have “strong probative value”, I would find that the test was satisfied in this case. However, as will shortly be seen, the Judge directed the jury not to use the evidence as propensity evidence, and for that reason also no error of law, nor any miscarriage, has been shown.

    Strong Probative Value

1. All of the evidence to which I have referred was strongly probative of the commission of all of the offences charged against the appellants.  That is so because the real state of the familial relationship in the period during which the offences were allegedly committed critically affected the probabilities of the occurrences of the offences charged.

2. When evidence of discreditable conduct is given by the same witness who testifies directly as to the commission of an offence charged, the jury is unlikely to fragment the assessment of that witness’s credibility between the direct testimony and the evidence of discreditable conduct.   The jury is likely to either accept or reject the evidence as a whole.  The prejudicial effect of the evidence of uncharged offences is for that reason more limited.  Nonetheless, there is prejudice in the human tendency to accept the truth of a barrage of accusations of discreditable conduct without subjecting the individual accusations to close analysis.  There is also the related risk that, in the face of those accusations, the jury will develop a prejudice against the accused and readily convict him or her, irrespective of the true strength of the evidence.

3. Where, as in this case, the multiplicity of offences charged and the range of witnesses who gave evidence on the various counts results in a body of corroborated evidence as to the existence of an abusive family environment, there is an added risk.  The risk is that if the jury is persuaded of the commission of the uncharged acts by evidence which is independent of the complainant, prejudice, which might be engendered by that finding, may affect the jury’s assessment of the complainant’s credibility.  To a large extent those prejudicial effects can be ameliorated by directions.

4. The authorities referred to in [37]-[38] above show that the probative weight of what is sometimes referred to as “relationship evidence” has long been held to outweigh the prejudicial effect of the discreditable conduct it reveals.  It does so because the evidence is specific to the relationship and patterns of conduct of the accused to the victim, and not to people generally.  Evidence of the kind received in Hissey, Wilson, and Roach has strong probative value, because it is a matter of human experience that when abusive behaviours develop in close personal relationships, they generally persist.  In this case, the relationship evidence extends to all members of the appellants’ family.  It is also a matter of common experience that abusive conduct can affect a family as a whole and result in general dysfunction.  Greater caution must be exercised when the discreditable conduct extends beyond the accused’s relationship with a single victim.  However, the evidence in this case discloses close connections between the forms of abuse practised by the appellants against each of their children.  It discloses such a deep-rooted breakdown of their sense of parental duty that it can be relied upon as showing the true terms on which the appellants and all of their children were living.  If the evidence were accepted by the jury, it would cause them to give less, or no, weight to the parental relationship as a reason for thinking the offences improbable.

   Discreditable Conduct – the Judge’s Directions 

5. The Judge directed the jury that the evidence of the children’s living conditions was relevant to the degree of “power, control and authority” that the appellants exercised over their children and to explain why SJJ did not complain.  I  explained in [24], [27], [32] why the evidence is relevant for that purpose. The Judge warned the jury against reasoning from mere propensity.  His Honour admonished the jury not to reason that, because the appellants had so poorly cared for their children, they were the kind of people who would commit the offences charged.

6. The Judge also warned the jury against reasoning from mere propensity from the evidence of uncharged acts of violence committed by CJN and MJJ, and from the uncharged sexual offending of MJJ.

7. The directions as a whole were, in my view, favourable to the appellants in not explaining to the jury the available use of the evidence of the abuse of the children for the purpose of rebutting the improbability of parents committing offences of the kind with which the appellants were charged, in the way I explained in [35]-[40].  The directions were also favourable to MJJ in not leaving the evidence of the uncharged sexual offending as evidence of MJJ’s sexual attraction to SJJ, in the way explained in the reasons of the majority in BBH v The Queen.[12]

   [12] (2012) 245 CLR 499.

   Failure to sever

8. All of the counts against both MJJ and CJN were properly joined pursuant to s 278(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The offences were part of a series of offences of the same or a similar character. The underlying character of the offences was the serial abuse by both MJJ and CJN of SJJ, MMJJ and JJ. Offences may be part of a series even if the offences are different and are committed against different victims at different places and times.[13]  Offences of a sexual nature and offences of violence may form part of a series of offences of a similar character.[14]

   [13] R v Liddy (2002) 81 SASR 22 at [119]; R v Smith (1998) 71 SASR 543 at 549.

   [14] R v M, BJ (2011) 110 SASR 1 at [22]-[24] per Vanstone J.

9. Charges may be severed, even though properly joined, if the joinder creates a substantial risk of miscarriage. The receipt of evidence on one or more of a number of counts jointly charged which is inadmissible on other counts creates such a risk. Section 34T of the Evidence Act requires a court, relevantly for this appeal, to give strong weight to the risk of prejudice from the admission of discreditable conduct evidence against one defendant which is inadmissible against another defendant.  For the reasons already given, the evidence received on the joint trial was by and large admissible, for various purposes, against both appellants.  Additionally, strong directions were given against the use of the evidence, either in a prejudicial way or for the purposes of propensity reasoning

10. MJJ separately complains of the prejudice caused by the evidence admitted against CJN of statements made by her which also inculpated MJJ.  The two items of evidence of which MJJ complains are:

    (a)Evidence from the witness Whelan about a conversation with CJN when they were both in custody in Northfield Womens’ Prison.  According to Whelan, CJN told her that she was in gaol “because her husband … had in fact raped her daughter” and that “her husband had raped her daughter and it was all her fault because she’d actually asked her … to have sex with her father”.

    (b)Evidence from the witnesses DN and Kelly Gorlick of a conversation between SJJ and CJN in which CJN had become upset and angry with SJJ and said to her “You are fucking your father.  You will get everything you want and you’re taking my place”. 

    I will refer to the items of evidence as the admission and the accusation respectively.   

11. The degree of prejudice generated by inadmissible evidence, the extent to which the prejudice might be removed or ameliorated by an appropriate direction and the inconvenience involved in separate trials are all relevant considerations when determining whether there has been a miscarriage of justice.[15]

    [15] The Queen v Jacobs (1988) 143 LSJS 14 at 24; as to the relevant question being whether there has been a miscarriage see R v Dawson-Ryan (2009) 104 SASR 571 at [14], [22]; R v Collie (1991) 56 SASR 302 at 310.

12. The prejudice engendered by the evidence of the admission and the accusation made by CJN is that, having acted on it as a statement against interest in the case against CJN, the jury might then use the implicit inculpatory assertions against MJJ.

13. This problem more commonly arises in the context of co-accused charged with the same offence when evidence of admissions by one accused, generally to police officers, which also inculpate another accused, are adduced in evidence.  It is generally accepted that directions against the use of the admissions of one accused testimonially against another sufficiently ameliorate the prejudice to avoid a miscarriage of justice.  In this case the prejudice is probably more acute because of the improbability, as a matter of human experience, that CJN would make the admission or the accusation unless she knew that MJJ had sexually assaulted SJJ.  To put it in another way, the implicit assertion that MJJ was engaging in a sexual relationship with his daughter is particularly strong coming from his wife. 

14. The Judge directed the jury when dealing with the requirement to consider each count separately that “it is imperative that you isolate the evidence on a particular count against the accused under consideration”.  The Judge also gave strong directions to the jury against using the evidence of the admission or the accusation against MJJ.  The Judge warned the jury against using the admission in the case against MJJ when the evidence was first given, and again in his summing up.  The Judge directed the jury:

    I remind you what I said at the time this evidence was given, that it is only admissible, that is able to be used, against [CJN] only.  It cannot be used against [MJJ] in any way whatsoever.

15. The Judge gave the jury this direction about the evidence of the accusation:

    The first point to make about that evidence is that it is not admissible or able to be used against [MJJ].  He was not there and it is inadmissible against him.  It is, however, able to used against [CJN]. … You cannot use those assertions to prove that [MJJ] was, in fact, having sex with [SJJ] you would have to accept [SJJ’s] evidence to prove her father was having sex with her.

16. In the course of summarising the address of MJJ’s counsel, the Judge again warned the jury against the use of the evidence of the accusation and directed them that as to the fact of the sexual conduct itself, the jury had “to be satisfied about [SJJ’s] evidence”. 

17. The summing up as a whole made it quite clear to the jury that they could only convict MJJ of the sexual offences against his daughter if they were satisfied beyond reasonable doubt of the commission of those offences on evidence other than the evidence led against CJN.  The direct evidence given by SJJ against MJJ was not connected to the evidence of the accusation and admission led against CJN.  In addition to the evidence of SJJ as to MJJ’s sexual offending, there was the strongly supportive evidence of the witness Edward Baker to which I earlier referred. 

18. Having regard to the Judge’s direction and the substantial body of direct evidence against MJJ, I am satisfied that the prejudicial effect of the evidence of the admission and accusation did not compromise the jury’s evaluation of the evidence properly admissible against MJJ.  Separate trials of MJJ and CJN would have placed a great burden on SJJ and lesser burdens on many other witnesses. There has been no miscarriage of justice by reason of the joint trial.

    Child Witnesses

19. Counsel for MJJ at the trial called on the prosecutor to call three of SJJ’s siblings.  They were C who was born in February 1998, MMJJ who was the victim of one of the offences and who was born in July 1991 and T who was born in March 2000.

20. C and MMJJ were interviewed by a police officer in August 2011.  The transcripts of their interviews were provided to the appellants.  T was not interviewed and no statement was taken from him.  When interviewed, C and MMJJ denied that they, or their siblings, had been abused in any significant way. 

21. The prosecutor informed the Judge that he would not call C and MMJJ because he had formed the view that they were not reliable witnesses.  The prosecutor explained his reasons for making his decision.  The prosecutor’s grounds for not calling the children were reasonable.  The denial of abuse by the children was inconsistent with the substantial evidence given by the other witnesses to which I have referred.  The very abuse described by that evidence was capable of explaining why the children would conceal the truth.  So too did the loyalty which young children feel to their parents, sometimes even to parents by whom they are abused.  Finally, there were indications in C’s interview that she had been influenced by her parents’ hostile attitude to government welfare authorities.

22. The prosecutor informed the Judge that he would not call T because he did not have a statement from him.  T was not alleged to be a victim of any offence.  Having regard to the difficulties a child in T’s position would face in being questioned, and then possibly testifying in a matter such as this, the prosecutor was not bound to obtain a statement from him.

23. MJJ’s counsel called the children C, MMJJ and T. They denied that they or their siblings had been assaulted.  They testified that they were well looked after.  They testified that CJN did not own a white belt and that she usually wore sneakers.  They denied that MJJ hit CJN. 

24. Leaving aside the soundness of the prosecutor’s decision, MJJ, having called the children, has not been prejudiced by that decision.  It fell to the jury to assess the evidence of the children in the same way in which they would have assessed the evidence if the children had been called by the prosecution.  The jury was bound to apply the same considerations to the assessment of that evidence whether the children were called by the prosecution or the defence.  The prosecutor would not have been bound to urge the jury to accept the evidence of the children even if he had called them.  The prosecutor could have told the jury, quite properly, that the other witnesses should be preferred.  The prosecutor’s cross-examination of the children did no more than give the jury an opportunity to weigh their testimonial denial of abuse in the face of the prosecutor’s questioning.  The testing of evidence cannot, of itself, be productive of miscarriage.  It is the very method which the common law has adopted to arrive at a just result.  If the children had resiled from the evidence in chief when cross-examined, different considerations may have arisen, but they did not.  In the circumstances MJJ has not suffered any prejudice.

25. Counsel for MJJ made an application to the Judge to call the children on the voir dire in the absence of the jury before calling them on the trial itself because he had not had an opportunity to speak to them.  Counsel wanted to be sure of the evidence they would give before calling them before the jury.  The Judge refused the application. 

26. I accept that in rare and unusual circumstances it may be appropriate to allow defence counsel to examine a witness on the voir dire before calling him or her on the trial.  There is no reason to limit the procedure to the cross-examination of witnesses whom the prosecution intends to call.  It may be appropriate to allow such an examination when it is necessary to do so to avoid a miscarriage of justice.  Whether or not that was so in this case the testimony ultimately given by the children supported the defence case.  The failure to allow MJJ’s counsel an opportunity to examine the children in the absence of the jury was not productive of any prejudice or disadvantage in the trial itself.   For that reason that ground should also be dismissed.

    Indecent assault as an alternative to unlawful sexual intercourse

27. In [5] I related that SJJ did not give evidence of any vaginal penetration when she testified about the incident which was the subject of the charge of unlawful sexual intercourse made by count 7 of the Information.  It followed that there was no case to answer on the charge of unlawful sexual intercourse at the end of the prosecution case.  In the ordinary course, and leaving aside the complication arising from the latent statutory alternative, the Judge should have directed the jury to acquit on that count.

28. Section 75 of the CLCA empowers a jury to return a verdict of indecent assault if it is not satisfied that the accused is guilty of unlawful sexual intercourse.[16]  The section is premised on there being a case to answer on the charge of unlawful sexual intercourse because, only then, would the question of the jury’s satisfaction of the guilt of the accused, on either the primary or alternative offence, arise.  If there be no case to answer, the jury is directed, as a matter of law, to acquit at the end of the prosecution case.  No occasion arises for the jury, at the time it is given the direction to acquit, to consider whether the charge has been proved beyond reasonable doubt, because the jury has been directed that the evidence is incapable of proving the offence beyond reasonable doubt.  Moreover, at the time that the jury is directed to acquit, the jury is not, procedurally, in the position contemplated by s 75 of the CLCA to be satisfied that the accused has committed the alternative offence of indecent assault because, at that time, the defence case has not yet been given.

    [16] See also s 25 CLCA with respect to charges of causing serious harm.

29. If a Judge has an obligation to direct an acquittal when there is no case to answer on the charge of unlawful sexual intercourse, even when there is a case to answer on the alternative of indecent assault, an anomaly appears.  If MJJ were acquitted of unlawful sexual intercourse at the end of the prosecution case, he could not subsequently be prosecuted for the offence of indecent assault because he had been put in jeopardy of conviction for indecent assault on his arraignment on the count of unlawful sexual intercourse.  Not surprisingly then, there is some authority for the proposition that the policy behind the provision for alternative verdicts extends the statutory and common law rules to those cases in which there is no case to answer on the charged offence. The authorities disclose some debate about whether, and in what forensic circumstances, it may be unfair to leave an alternative charge on which the prosecution had not opened.[17]  

    [17] Byrne v Godfree (1997) 96 A Crim R 197; R v Van Bay Che (1988) 50 SASR 1; R v Cameron (1983) 2 NSWLR 66; R v Fitzpatrick (1988) 50 SASR 10. 

30. I doubt that s 75 of the CLCA allows for a trial to proceed on an uncharged alternative after the Court has ruled that there is no case to answer on the offence charged.  Only a strained reading of the text could yield that result.[18]  I accept that the very policy considerations on which s 75 of the CLCA is based apply almost as strongly to allow the trial to proceed on the alternative charge when there is no case to answer on the pleaded charge as they do when there is a case to answer on both the pleaded, and the alternative, offence.  However, it is by no means absurd to limit the application of the policy to the field of operation so strongly suggested by the text of s 75 of the CLCA, which is when the jury is also considering its verdict on the pleaded count.  There are fundamental conceptual difficulties in allowing the alternative to go to the jury when there is no case to answer on the primary charge.  It is difficult to see a basis on which a Judge could decline to rule on a no case submission which is not only properly made, but correct as a matter of law.  Once a Judge has directed an acquittal on the primary charge at the end of the prosecution case, it is equally difficult to see how the Court could remain seized of the alternative charge.

    [18] The provision considered in Byrne v Godfree (1997) 96 A Crim R 197, in which it was held that a trial could proceed on the alternative charge even though there was no case to answer on the pleaded count, is in materially wider terms than s 75 CLCA.

31. To my mind, the better solution to the conundrum lies in the power of the Court to amend an Information to substitute a count charging indecent assault for the count charging unlawful sexual intercourse.[19]  There is an important limitation on the exercise of that power just as there is on the power to return an alternative verdict.  The conduct of the accused on which the alternative charge of indecent assault is based must be the same conduct on which the charge of unlawful sexual intercourse was based.  If the same conduct, save for the issue of whether that conduct resulted in intercourse, is charged then it can be accepted that the charge of unlawful sexual intercourse in general terms puts the accused on trial for both the pleaded charge and on the lesser alternative of indecent assault.[20] If that is right, then there is arguably a power to amend the charge to plead the alternative if there is no case to answer on the primary offence.   Of course, it may, in a particular case, still be unfair to leave the alternative to the jury.

    [19] Ayles v R (2008) 232 CLR 410 at [7] per Gleeson CJ; [50] per Heydon J; [69]; [75] per Kiefel J.

    [20] R v Fitzpatrick (1988) 50 SASR 10.

1. It is not necessary for me to express a concluded opinion on the question of the power of the Court to continue a trial on the alternative of indecent assault when there is no case to answer on the charged count of unlawful sexual intercourse only because there is no evidence that the conduct alleged resulted in penetration.  Whatever the position might be in such a case, it is my view that a trial cannot proceed on a charge of indecent assault based on different conduct to that which was the subject of the unlawful sexual intercourse charge.

2. In this case, SJJ did not give evidence of the conduct which the prosecution alleged had effected the necessary penetration to constitute the offence of unlawful sexual intercourse.  The count of unlawful sexual intercourse cannot be treated as having alleged the penetrative conduct as an offence of unlawful sexual intercourse and the preceding non-penetrative conduct as a separate offence of indecent assault.  A count that made that allegation would be bad for duplicity.  The power to amend an Information does extend to the adding of a separate count charging conduct which was alleged in a single omnibus count which was bad for duplicity, if no incurable unfairness is thereby caused.[21]  However, in this case the prosecution did not charge, and never intended to charge, the touching of SJJ’s breasts as a discrete indecent assault.[22]  In those circumstances the Information could not have been be amended to include a separate count of indecent assault, even if the application had been made.  The appeal on this ground must be allowed and the conviction on count 7 quashed.

   [21] The question of duplicity should be approached in a commonsense manner and with regard to the fairness of the situation:  DPP v Merriman [1973] AC 584 at 593 per Lord Morris; Stanton v Abernathy (1990) 19 NSWLR 656 at 662 per Gleeson CJ.

   [22] R v Salmon [1969] SASR 76; JD v Police (2005) 91 SASR 189.

   CJN’s knowledge of MJJ’s sexual relationship with SJJ

3. CJN contends that the evidence of the accusation levelled by her against SJJ was not probative evidence in the case against her on the procurement charges.  CJN also contends that the Judge erred in telling the jury that the evidence of the accusation was supportive of SJJ’s testimony.

4. In my view, the accusation levelled against SJJ by CJN, that SJJ was having a sexual relationship with her father, was probative evidence in the case against her.  The proposition that a mother would ask her daughter to sleep with her father is most improbable for many reasons.  Most obviously it is improbable that a mother would subject her daughter to that abuse.  It is to counter that improbability that the discreditable conduct to which I earlier referred was properly admitted.  However, the proposition is also improbable because the mother of a child is even more unlikely to procure her child to engage in sexual behaviour with the child’s father if she has no reason to think he is predisposed to engage in that conduct.  The point is that CJN is unlikely to have put the proposition to SJJ, unless she knew that SJJ and MJJ had previously engaged in sexual conduct, because of the strong reproach she could expect from them if that was not the case.  The evidence of both the accusation and the admission addressed that improbability and were admissible against CJN.

5. It can be accepted that, on the evidence of the accusation given by DN and Kelly Gorlick, CJN was, at that time, angered and upset by the relationship between SJJ and MJJ.  To that extent, it was antithetical to the evidence that CJN had procured the offence in the way SJJ described.  Indeed, CJN’s counsel alluded to that improbability in her address.

6. However, the use of the evidence to contradict SJJ’s account was not the only available view of it.  The evidence could also be used in another way.  In the light of the abusive domestic regime over which MJJ presided, SJJ’s evidence of CJN’s procurement of her to engage in sexual relations with her father could also be seen as a manifestation of CJN’s further subjugation and degradation by that very regime.  Evidence is not inadmissible merely because the jury might ultimately, after weighing it in the context of all the evidence and its assessment of the credit and reliability of the witnesses, accord it very little, or even no, weight.[23]

   [23] BBH v The Queen (2012) 245 CLR 499 at [97] per Heydon J.

7. The Judge told the jury that the evidence provided some support for SJJ’s testimony about CJN’s procurement of her.  In terms of its possible use, the direction was correct.  The ways in which the evidence could be used was within the province of the jury who would consider it in the context of all of the evidence, and in the light of their combined experience of life.  The Judge warned the jury against reasoning that CJN had a predisposition to offend as alleged because she knew of MJJ’s sexual offending but did nothing about it.  The failure to spell out the possible supportive use, and to refer to the antithetical use, alluded to by CJN’s counsel, did not result in a miscarriage of justice.

   MJJ application for permission to appeal against sentence

8. MJJ was sentenced to 12 years with a non-parole period of nine years.

9. MJJ’s offences were not isolated but occurred in the context of repeated indecent assaults and penetrative intercourse over a period of several years.  The evidence of repetitive and protracted offending meant that MJJ could receive no leniency on the basis that the offences were isolated aberrations.  More than that, the history of offending and other abuse, including the abject conditions in which SJJ and her siblings were kept, demonstrated the callousness with which he offended.  It showed that MJJ’s prospects of rehabilitation was poor.

10. In this case, MJJ’s violent subjugation of his family places his offending in a more serious category than many of the offences that come before this Court.  MJJ flagrantly treated SJJ as an object of sexual gratification.  MJJ’s aggravated assault against his son JJ merited a substantial term of imprisonment in addition to the sentence imposed for his sexual offending against SJJ.

11. SJJ was over 12 years of age at the time of the offending.  In R v D this Court held that the starting point for sentencing for the sexual abuse of children by a person in a position of trust when the child is over 12 is ten years’ imprisonment.[24]  The benchmark set in R v D was given legislative recognition by s 29D of the Criminal Law (Sentencing) Act 1988 (SA). Section 29D described the benchmark set by R v D as one which reflected “an emerging recognition by the judiciary and the community generally of the inherent seriousness of offences involving paedophilia”. The purpose of s 29D was to apply the sentencing standards which emerged from that recognition to offences committed before the decision in R v D.

    [24] R v D (1997) 69 SASR 413 at 424.

12. The Solicitor-General, who appeared for the Director of Public Prosecutions, referred the Court to a body of research and literature undertaken since the decision in R v D.  The Solicitor-General submitted that the research and literature expands the knowledge of the impact of paedophilia on its direct victims and the community generally.  The material was not disputed.  The Solicitor-General provided, as an annexure to his submissions, a summary of that literature.  I, in turn, annex that summary to my reasons.

13. It is proper for the courts to inform themselves by reference to literature of the kind submitted by the Solicitor-General.  The material is not put before the Court so that it can make a judgment or decision of some sort on the issues investigated and discussed in the literature.  Nor can the material be used in a direct way to arrive at the proper sentence in a particular case.  The purpose of the material is to provide, by way of context, information about the potential personal and social impacts of offending of the kind for which an offender is to be sentenced.  The sentencing discretion is undertaken in that context, but remains controlled by the common law and statutory principles which govern its exercise.  The information disclosed in the literature is consistent with the appreciation of the effects of sexual abuse which I have gained empirically from the many psychiatric reports and victim impact statements I have seen in the criminal jurisdiction of this Court.  There is no doubt that victims of sexual abuse and their families carry a substantial psychological and financial burden.  There is also a great social cost to the community.  Community anxiety about sexual offending curtails the freedom of children to explore their environment in a way which is a necessary part of their psycho-social development.  It also generates increasing suspicion and sensitivity about completely innocent behaviours.  The great personal and social harm caused by sexual offending against children demands a strongly deterrent sentencing response.

14. In all of the above circumstances, the sentence was not excessive for the offences of which MJJ was convicted.  I would have refused permission to appeal if the appeal was limited to one against sentence only.  However, having set aside the conviction on count 7, it is necessary to resentence MJJ.  The remaining offences of unlawful sexual intercourse and indecent assault committed against SJJ and the aggravated assault against JJ are very serious offences in the context of the abusive regime over which he presided.  I would impose a head sentence of 11 years, and a non-parole period of 8 years and 9 months.

    Orders

15. I would allow MJJ’s appeal against the conviction on the statutory alternative charge of indecent assault on count 7 but dismiss his appeal against the convictions on the other counts.  I would resentence MJJ to 11 years imprisonment with a non-parole period of 8 years 9 months to commence on 17 August 2011.  I would dismiss the appeal of CJN.

    Annexure

    
    

    GRAY J.

16. The defendants and appellants, MJJ and CJN, have both appealed against conviction following a trial before a judge and jury in the District Court.  MJJ has also sought permission to appeal against sentence.

    Introduction

17. The defendants were charged on the one Information.  They were not jointly charged with any offence.  Counts 1-10 on the Information charged MJJ; and counts 11-15 charged CJN. 

18. The defendants had been in a de facto relationship for 17 years at the time of arrest.  Together they had nine children who were all living with them at the time of their arrest.

    Pre-Trial Applications

19. The prosecution gave notice that it intended to lead evidence of discreditable conduct against both defendants.  The Judge considered that the evidence should be admitted.

20. Each defendant sought to be tried separately from the other.  Additionally, CJN sought separate trials in respect of certain counts alleging offences against her.  The applications for separate trials, each from the other, were refused.  The application by CJN for separate trials of the counts affecting her was also refused.  As a consequence, the trial proceeded against both defendants on all counts on the Information. 

    The Defendant MJJ

21. MJJ pleaded not guilty to each count.  Unanimous verdicts of not guilty were returned on counts 1, 2, 3, 4, 6 and 9.  These verdicts followed a direction of the Judge that the jury should acquit.  Earlier in the trial, the Judge had found no case to answer on each of these counts. 

22. Counts 5, 7, 8 and 10 charged MJJ as follows:

    …

    Fifth Count

    Statement of Offence

    Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).

    Particulars of Offence

    [MJJ] between the 17th day of May 2008 and the 30th day of April 2011 at Woodville Gardens, had sexual intercourse with [SJJ], a person between the age of 12 and 15 years, by inserting his penis into her vagina.

    …

    Seventh Count

    Statement of Offence

    Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).

    Particulars of Offence

    [MJJ] on the 6th day of February 2011 at Woodville Gardens, had sexual intercourse with [SJJ], a person of the age of 15 years, by inserting his penis into her vagina.

    Eighth Count

    Statement of Offence

    Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).

    Particulars of Offence

    [MJJ] between the 1st day of April 2011 and the 17th day of August 2011 at Burton, indecently assaulted [SJJ], a person of the age of 15 years.

    …

    Tenth Count

    Statement of Offence

    Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).

    Particulars of Offence

    [MJJ] between the 17th day of July 2011 and the 17th day of August 2011 at Burton, assaulted [JJ], a person of the age of 3 years.

    It is further alleged that [MJJ] committed the offence knowing that [JJ] was a child of whom he was a parent.

    It is further alleged that [MJJ] committed the offence, knowing that [JJ] was under the age of 12 years. 

    Unanimous verdicts of guilty were returned on counts 5 and 10, a majority verdict of guilty was returned on count 8 and a unanimous verdict was returned on count 7 of not guilty of unlawful sexual intercourse but guilty of indecent assault. 

    The Prosecution Case – the Defendant MJJ

23. It was the prosecution case that MJJ had an inappropriate sexual interest in his eldest child, his daughter SJJ.  It was said that MJJ had engaged in inappropriate touching of SJJ on repeated occasions over some years and that this touching had developed over time into more extensive sexual contact, including penile sexual intercourse.  Evidence was led from SJJ of these circumstances.  Her evidence was of ongoing sexual misconduct towards her by MJJ and involved many uncharged criminal acts of sexual abuse.  It was the prosecution case that, on occasions, MJJ would have SJJ dress in her mother’s lingerie.  There was further evidence led from SJJ of violent conduct towards her.  On the prosecution case, this conduct occurred in circumstances of the family living in squalor.  The evidence led suggested that children in the family were neglected, impoverished and abused. 

24. The prosecution case on count 5 was that MJJ had engaged in an act of unlawful sexual intercourse with SJJ.  The alleged act was one of penile vaginal sexual intercourse.  At the time SJJ was about 14 years of age.  The prosecution alleged that the offence occurred in a room adjacent to the kitchen of a premises at Woodville Gardens.  It was said that MJJ made SJJ dress in a short skirt with no underwear.  It was claimed that this was the first occasion on which penile vaginal sexual intercourse had occurred at Woodville Gardens.  SJJ gave evidence in support of the alleged offence.

25. The prosecution case on count 7 was opened as an act of unlawful sexual intercourse.  SJJ gave evidence concerning this incident but did not give evidence of an act of penile vaginal sexual intercourse.  Her evidence was that she had been touched on the breasts and vagina in her bedroom.  The incident was said to have occurred on the day after SJJ’s 15^th birthday.  She gave evidence that the offending ceased when noises indicated that CJN was awake and moving around the house.  SJJ claimed that MJJ then hid behind the bedroom door. 

26. The prosecution case on count 8 was that an act of indecent assault occurred.  It was said that MJJ had touched SJJ on the breast while she was sleeping in the same bed as MJJ and CJN at the Burton premises.  Apparently CJN stirred and the offending ceased.

27. The prosecution case on count 10 related to an act of aggravated assault against JJ.  JJ, a male child, was aged three years at the time of the alleged offending.  It was alleged that MJJ was seen to throw JJ into the side of a shipping container.  SJJ gave evidence that she saw MJJ pick up JJ and throw him into the container.  Ms D S, an adult acquaintance, gave evidence that she saw MJJ throw JJ towards a shipping container, which he hit with a thud. 

28. MJJ gave evidence denying each of the above charges.  It was his case that no sexual abuse of any sort occurred and that there had been no assault of any child.  MJJ called evidence from three of the children.  Those children gave evidence that they had not been subjected to any physical or sexual abuse by MJJ.  There was evidence that the children were smacked, but there was no suggestion that this amounted to abuse.  They said that they had not seen any abuse of any other child.

    The Defendant CJN

29. CJN was charged as follows:

    Eleventh Count

    Statement of Offence

    Procuring a Child to Commit an Indecent Act. (Section 63B(1) of the Criminal Law Consolidation Act, 1935).

    Particulars of Offence

    [CJN] between the 1st day of January 2011 and the 30th day of April 2011 at Woodville Gardens, incited [SJJ], to commit an indecent act.

    It is further alleged that [CJN] committed the offence knowing that [SJJ] was a child of whom she was a parent.

    Twelfth Count

    Statement of Offence

    Procuring a Child to Commit an Indecent Act.  (Ibid).

    Particulars of Offence

    [CJN] between the 1st day of January 2011 and the 30th day of April 2011 at Woodville Gardens, incited [SJJ], to commit an indecent act.

    It is further alleged that [CJN] committed the offence knowing that [SJJ] was a child of whom she was a parent.

    Thirteenth Count

    Statement of Offence

    Aggravated Assault.  (Section 20(3) of the Criminal Law Consolidated Act, 1935).

    Particulars of Offence

    [CJN] between 1st day of April 2011 and the 7th day of July 2011 at Clearview, assaulted [SJJ].

    It is further alleged that [CJN] committed the offence knowing that [SJJ] was a child of whom she was a parent.

    Fourteenth Count

    Statement of Offence

    Aggravated Assault.  (Ibid).

    Particulars of Offence

    [CJN] between the 7th day of July 2011 and the 17th day of July 2011 at Burton, assaulted [MMJJ].

    It is further alleged that [CJN] committed the offence knowing that [MMJJ] was a child of whom she was a parent.

    Fifteenth Count

    Statement of Offence

    Aggravated Assault.  (Ibid).

    Particulars of Offence

    [CJN] between the 17th day of July 2011 and the 17th day of August 2011 at Burton, assaulted [JJ], a person of the age of 3 years.

    It is further alleged that [CJN] committed the offence knowing that [JJ] was a child of whom she was a parent.

    It is further alleged that [CJN] committed the offence, knowing that [JJ] was under the age of 12 years.

    CJN pleaded not guilty to each count.  The jury returned unanimous verdicts of guilty on each count.

30. It was the prosecution case in respect of counts 11 and 12 that in 2011 on two consecutive days, CJN went to SJJ’s bedroom and told her to have sex with her father.  SJJ gave evidence in respect of each occasion and, in addition, gave evidence that CJN “carried on about it” for a few months thereafter.

31. The prosecution case in respect of count 13 was that CJN committed an act of aggravated assault by punching and hitting SJJ in the face.  Evidence in support of the charge was led from SJJ.  Ms H H gave evidence that MJJ and CJN were fighting at the front of her house and that after she told them to be quiet, CJN struck SJJ with her fist, causing SJJ to fall to the ground. 

32. The prosecution case in respect of count 14 was that an aggravated assault was committed against MMJJ, a child of MJJ and CJN.  Evidence in support of the charge was led from SJJ who said that she saw CJN kick MMJJ while wearing steelcapped boots.  Ms P H gave evidence of having seen CJN push MMJJ into an office wall and then kick him while wearing work boots.  Ms H H gave evidence of seeing CJN kick one of the children while wearing steelcapped boots.

33. The prosecution case on count 15 was that an act of aggravated assault had been committed against JJ.  It was said that at that time, JJ was three years of age.  It was said that CJN hit JJ with a belt.  Ms D S gave evidence of CJN striking JJ with a white studded belt.

34. CJN did not give evidence and led no evidence as part of a defence case.  However, as noted above, MJJ gave evidence and called three of the children to give evidence.  MJJ gave evidence that he did not witness any misconduct by CJN.  None of the three children called confirmed any physical abuse by CJN.

    Discreditable Conduct Evidence

1. The Judge sentenced MJJ to imprisonment for a term of 12 years.  A non-parole period of nine years was fixed.  The sentence was backdated to 17 August 2011, when the defendant was taken into custody following his arrest. 

2. When sentencing, the Judge made it plain that MJJ was only to be sentenced in respect of the offences of which he was convicted.  In respect of the sexual abuse of SJJ, the Judge remarked:

   As I mentioned, [SJJ] was the eldest, having been born on 2 February, 1996. I accept that you, [MJJ], took an unnatural sexual interest in [SJJ]. I accept that your sexual conduct against her was not limited to the occasions of which you were found guilty by the jury. I accept there was a course of sexual misconduct towards her that spanned some years, commencing with sexual touching and culminating with sexual intercourse. In other words, your offending against her was not isolated to the guilty verdicts, although it is only on those verdicts that I must sentence you.

3. In respect of the aggravated assault on JJ, the Judge remarked:

   The last count of which you were convicted relates to the aggravated assault upon [JJ], then aged three years. It is difficult to spell out a reason for this but whatever the reason, your conduct was not only illegal but brutal. You picked up [JJ] and threw him some distance through the air against a metal shipping container.

4. The Judge considered that the betrayal of the children was a serious matter and, in that respect, observed:

   The betrayal of your children by both of you, particularly [SJJ], was profound. Instead of protecting and nurturing [SJJ], you breached the fundamental trust that parents should have for a daughter. In this area, both general and personal deterrence must apply in substantial measure. General deterrence is most significant to send a message to like-minded men that offending like this will result in substantial time in gaol.

5. MJJ complained that the sentence was manifestly excessive, both as to the head sentence and the non-parole period.  It was argued that the Judge erred in sentencing against the background of other sexual abuse when the defendant had been acquitted on a number of accounts relating to abuse. 

6. In considering the circumstances in which a sentence will be interfered with by an appellate court in Horstmann I made the following observations:[62]

   When assessing whether an appeal against sentence should be allowed, identification of error is not sufficient.[63]  Even where error has occurred in the sentencing process, the sentence will not be interfered with unless it can be said to be manifestly excessive,[64] or there has been a miscarriage of justice requiring intervention by the Court.[65]

   To determine whether a sentence is manifestly excessive, an appellate court must consider the maximum sentence prescribed by law, the standards of sentence customarily observed for offences of that kind, the seriousness of the offences committed when compared to other offences of their kind, and the personal circumstances of the offender.[66]

   [62] R v Horstmann [2010] SASC 103, [16].

   [63] House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt & McTiernan JJ).

   [64] Skinner v The King (1913) 16 CLR 336 at 340.

   [65] R v Becker (2005) 91 SASR 498 at [59]-[61], [68].

   [66] R v Morse (1979) 23 SASR 98, 99.

7. In relation to the sexual offending, the Judge was referred to the case of D[67] and invited to sentence on a basis consistent with that authority.  In that case, Doyle CJ observed the following in relation to cases involving a course of conduct including unlawful sexual intercourse with a child committed by a person in a position of trust and authority:[68]

   … They are offences that cause a feeling of outrage and revulsion in the community. The penalty must reflect that feeling. They involve a serious breach of trust. As this case makes clear, such offences cause serious harm to the victim in many cases. There is every likelihood that the effects of that harm will be prolonged, and perhaps lifelong. The courts must do what they can to protect children from such conduct. Deterrence is an important part of sentencing for an offence such as this. Although reasons for the offending vary, and sometimes the offenders are persons who were themselves sexually abused as children, it seems clear that such offenders are not usually persons who are unable to control their sexual instincts. While acknowledging that the punishment of offenders is only one factor that may limit the incidence of this offence, the courts must proceed on the basis that punishment has a part to play in deterring offenders.

   Offences such as the present one have an insidious effect upon the community, and that is also something to consider. They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing.

   It appears that the sexual abuse of children by persons in a position of trust is quite widespread. It may not be occurring more often than it did in the past. It may well be that it is now being detected more often than it was. Be that as it may, the offences that are involved come before the courts with disturbing frequency. It is for those reasons that I consider that the court should increase, to a moderate degree, the level of penalty imposed for such offences.

   …

   In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). That starting point would be subject to reduction on account of a plea of guilty, co-operation with the police, genuine contrition and so on. It is impossible to be precise in these matters, and I do not wish to be taken as suggesting a precise figure. In an appropriate case the starting point might be higher or lower.

   When the child in question is over 12 years of age, in my opinion the starting point in such cases should be a head sentence of about 10 years imprisonment.

   [67] R v D (1997) 69 SASR 413.

   [68] R v D (1997) 69 SASR 413, 423-4.

8. These comments indicate a general approach or standard that a sentencing judge should bear in mind. 

9. The sentencing Judge was justified in imposing the sentence having regard to the following matters: there was a need to adequately punish MJJ for offending of which he was convicted; the nature of the offending, particularly against SJJ, involved a gross betrayal of trust; a primary policy of the criminal law is to protect children from sexual offending by ensuring that significant consideration is given to the need for deterrence;[69] the offending was only brought to an end by a complaint of SJJ; and the repeated and ongoing nature of the offending indicates that there was no intention by the defendant to cease the offending of his own volition.  In the case of SJJ, the offending was coupled with threats of violence if the offending was disclosed; MJJ continually denied the offending and demonstrated no contrition or remorse; and the offending has had a marked and ongoing impact on SJJ.

   [69] Criminal Law (Sentencing) Act 1988 (SA) section 10(2).

10. In fixing the non-parole period, there is no “norm” as to the proportion of the head sentence which the non-parole period should represent.[70]

    [70] R v Creed (1985) 37 SASR 566, 569, R v Power [2003] SASC 288, [26]; R v Robinson [2007] SASC 105, [14].

11. The Judge made no error of fact and did not take into account irrelevant considerations or fail to take into account any relevant matter.  This was serious criminal conduct.  MJJ was in breach of the trust between father and daughter.  The Judge had regard to MJJ’s personal circumstances. Beyond that, there was little evidence of factors that could be considered in mitigation of his penalty.

12. In summary, the sentence imposed, including both the head sentence and the non-parole period, was within the sentencing discretion of the Judge.  It is to be accepted that MJJ’s criminal antecedents involved relatively minor offending.  He had not on any earlier occasion been given any form of custodial sentence.  He had not been convicted of any offence for a period of about 10 years preceding the present offending.  A head sentence of 12 years imprisonment with a non-parole period of nine years is, in my view, a substantial sentence.  MJJ will spend the best part of a decade in custody.  However, in my view, as indicated above, no error has been made in the sentencing process by the Judge.  The sentence was within his discretion.

    Conclusion

13. The appeals against conviction should be dismissed.  MJJ should be granted leave to appeal against sentence but that appeal should also be dismissed.

14. VANSTONE J:    I have had the advantage of reading the reasons for decision of each of the Chief Justice and Justice Gray. I agree with the orders proposed by the Chief Justice and I am in general agreement with the reasons he has written. In respect of two matters raised by the appeals against conviction I would like to make some observations of my own. Those two topics are, first, the relatively new s 34P of the Evidence Act 1929 which deals with discreditable conduct and second, the question of the implications of the trial judge finding no case to answer on count 7 and the availability of an alternative verdict.

    Evidence of discreditable conduct

15. During the argument on this appeal an aspect of the approach of the learned trial judge to the question of admission of evidence of discreditable conduct was criticised by counsel for the respondent, being the Solicitor-General. It was conceded by the Solicitor-General that the judge had made an error of law in his approach to the admissibility of evidence under the new s 34P(2)(a) of the Evidence Act 1929. It was suggested that, notwithstanding that error, the evidence had in fact been correctly admitted and that the proviso found in s 353 Criminal Law Consolidation Act 1935 should be applied. In his reasons, Gray J has expressed the view that the judge’s approach revealed “a fundamental misunderstanding by the Judge concerning the operation of section 34P”. In my respectful opinion the criticism of the judge’s approach to s 34P Evidence Act is not warranted.

16. Before going more particularly to the terms of s 34P I would set out what I consider to be some fundamental principles embodied in the common law rules of evidence. As will be apparent, I consider that these principles remain untouched by s 34P of the Evidence Act.

17. Questions of admissibility have always been, and, leaving aside some statutory exceptions, remain, pure questions of law. (Those statutory exceptions almost exclusively permit relaxation of the strict requirements of the rules of evidence; for example, sections 34C, 34CA, 34K, and 34KA of the Evidence Act.)  That is so, notwithstanding that decisions on admissibility involve judgments about facts; matters of relevance and weight.  Questions about whether evidence is legally admissible do not involve any exercise of discretion.

18. The admissibility of evidence is determined by an application of legal principle to a set of facts, whether disputed or not.

19. All relevant evidence is admissible, provided it is not excluded by operation of an exclusionary rule, such as the hearsay rule or, relevantly, the rule in R v Makin [1894] AC 57, in this jurisdiction now embodied, with some modifications, in s 34P of the Evidence Act.  Consideration of any exclusionary rule, whether created by the common law or by statute, is, similarly, an application of legal principle.

20. A corollary of these principles is that no error of law is made by a trial judge who, for the wrong reasons, admits what is in fact legally admissible evidence.  The question for the appeal court will always be whether the evidence was properly admitted.  For this reason, where evidence is found by the appeal court to have been properly admitted no question of an error of law, or the application of the proviso, can arise.

21. Even if legally admissible, evidence may be excluded as an exercise of discretion by the trial judge, on the basis that its probative value is outweighed by its prejudicial effect.  It is only at this point that any question of discretion arises.

22. In my view it is most unwise to too readily read into a provision such as s 34P a wholesale change to the structure of the law of evidence. The existing framework of rules should be assumed to remain in place unless the Parliament uses words which clearly evince an intention to introduce fundamental changes to it.

23. I now set out the terms of s 34P of the Evidence Act.

    34P—Evidence of discreditable conduct

    (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 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.

    (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)     Subject to subsection (5), a party seeking to adduce evidence under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.

    (5)     The court may, if it thinks fit, dispense with the requirement in subsection (4).

24. The Chief Justice has made some general observations about s 34P, s 34O and s 34S of the Act. I respectfully agree with those observations, but I do not read them as being in any way inconsistent with the points I endeavour to make.

25. The structure of s 34P bears some resemblance to the well known statement of principle by Lord Herschell in Makin v Attorney-General for New South Wales [1894] AC 57 at 65. Lord Herschell commenced with a statement to the effect that evidence which is generally discreditable is inadmissible. He went on to say that such evidence might yet be admissible if relevant to an issue before the jury. Section 34P(1) and 2) follow the same formula. His Lordship said:

    It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.  On the other hand, the mere fact that the evidence is adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

26. Section 34P(2) divides discreditable evidence into two categories. Section 34P(2)(a) deals with non propensity uses. Examples of these uses are seen in cases such as R v Wilson (1971) 123 CLR 334 (evidence of marital discord prior to wife’s death by firearm); R v Tucker (1984) 36 SASR 135 (proof of theft of firearm later used to shoot victim as evidence of premeditation); R v Nieterink (1999) 76 SASR 56 (proof of uncharged acts of sexual nature not used to prove sexual interest). This last has often been referred to as relationship evidence. It introduces what I see as a requirement more demanding than the common law, namely that the probative value of the evidence “substantially outweighs any prejudicial effect”. Formerly, such evidence was admissible, but fell to be excluded as a matter of discretion if its prejudicial effect was adjudged to outweigh its probative value.

27. Propensity or disposition evidence is dealt with in s 34P(2)(b). I would assess the qualitative requirement there provided as being comparable to the common law as it stood prior to Hoch v The Queen (1988) 165 CLR 292. The degree of probative force required at common law has been described as “a really material bearing on the issues to be decided”: Director of Public Prosecutions v Boardman [1975] AC 421 per Lord Morris of Borth-y-Gest at 439 and 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 per Brennan J at 609; Phillips v The Queen (2006) 225 CLR 303 per the Court at 320.

28. In my opinion the changes made by s 34P, s 34Q, s 34R and s 34S may be briefly stated as follows:

    1.The test for admissibility established in Hoch that propensity evidence, if accepted, bear no reasonable explanation other than the inculpation of the accused person and the offence charged no longer applies – see s 34S(a);

    2.The possibility of collusion or concoction by the witnesses attesting to the similar events is no longer a ground for exclusion – see s 34S(b);

    3.The exclusionary rule which formerly regulated the admission of propensity or disposition evidence is now extended so that it applies to discreditable evidence introduced for non propensity purposes – see s 34P(2)(a).

    For such evidence to be admissible the judge must now be satisfied that the probative value of such evidence “substantially outweighs any prejudicial effect it may have on the defendant”;

    4.The criterion for admission of evidence tendered to demonstrate a particular propensity or disposition is now that the evidence has “strong probative value having regard to the particular issue or issues arising at trial” – see s 34P(2)(b).

29. Section 34Q is a codification of a common law rule.

30. Again, s 34R gives statutory effect to rules of long-standing.  Section 34R(2) embodies the rule in Shepherd v R (1990) 170 CLR 573.

31. It is always for the party tendering evidence to demonstrate that it is relevant and admissible, and, if so, that it should not be excluded in the exercise of the general discretion. I do not see s 34P as casting a new onus on the tendering party or otherwise as altering that position.

32. The approach to be taken by a judge faced with an application to introduce evidence of discreditable conduct is, in my view, much as it was before s 34P was introduced. As before, the judge will need to understand for what purpose or purposes the evidence is tendered and, in particular, whether it is proposed to rely on propensity reasoning. It will be necessary for the judge to identify the permissible and impermissible uses of the evidence. It is be hoped that this task will be assisted by the requirement found in s 34P(4) that the party seeking to lead the evidence will give notice of it in accordance with the rules of court with some particularity and will outline the permissible uses.

1. Once the permissible use or uses of the evidence are identified and it is determined whether s 34P(2)(a) or (b) is invoked, then the probative value of the evidence must be assessed in accordance with the applicable criterion. If s 34P(2)(a) is applicable then the judge will need to consider whether the permissible use or uses can be kept sufficiently separate and distinct from the impermissible use, as required by s 34P(3).

2. Next there is the question of the general or residual discretion. I take the use of the expression “may be admitted” in the opening words of s 34P(2) to indicate that the legislature means to preserve in the judge the common law discretion to exclude otherwise admissible evidence. It is hard to see that this general discretion would have a real role in relation to non propensity evidence, which would already have been adjudged to substantially outweigh any prejudicial effect. However, it is not impossible to see that the discretion could come into play in relation to evidence which had been found to qualify under s 34P(2)(b). I am reminded that Brennan J expressed the view in Harriman v The Queen (1989) 167 CLR 590 at 594 that the continued existence of the general discretion to exclude admissible evidence of predisposition should be acknowledged. On the other hand Heydon J in BBH v The Queen (2012) 245 CLR 499 at [111] took the position that it was “highly questionable” whether there was any room for discretionary exclusion if the Pfennig test for admissibility had been satisfied.

3. I turn to the approach taken by the judge in this case to the consideration of the tender of evidence of discreditable conduct.

4. In his reasons for ruling the judge began by referring to the new section and making a number of general observations about changes wrought by it. It is unnecessary to set out those observations, but I note that they included a specific reference to s 34P(2)(a) and the fact that the criterion for admission of non propensity evidence was now more demanding than previously. In respect of the criterion for propensity evidence, the judge noted that the Hoch and Pfennig test had been sidelined, and he expressed the view that the new test was to be likened to that existing before Hoch. 

5. Against that background, the judge made his rulings in relation to the various bodies of evidence under consideration.  He did not give separate reasons for each ruling.  In my opinion he was not obliged to.  As I said earlier, since admissibility is a matter of law, a flawed approach to it, or absence of reasons for a ruling on it is not of much consequence; the appeal court will form its own view about the admissibility of the evidence.  I do not wish to imply that the judge’s approach in this case was flawed, or not explained.  Like the other members of the Court, I consider the evidence of discreditable conduct was properly admitted. 

   Indecent assault as an alternative to unlawful sexual intercourse

6. Count 7 on the Information was a charge of unlawful sexual intercourse.  In the prosecution opening, quite some detail was given about the evidence upon which this charge was based.  It was said to have occurred the day after the complainant’s 15th birthday.  Counsel for the prosecution said:

   [The complainant] will tell you that he came into her room after others had gone to bed and indeed after she had gone to bed.  She had in fact fallen asleep and woke to find her father on top of her.  He had removed her knickers and had pushed up the nightie she was wearing so that in effect it was pushed up to around her neck revealing the vaginal area and indeed her breasts.  She told him to go away and he told her she had to cooperate and if she told anyone he would hurt her.  That you will hear was something he commonly said to her, ‘Don’t tell anyone, if you do I’ll hurt you.  If you don’t let me do it, I’ll hurt you’.  In any event he was on top of her, her knickers removed, her nightie shoved up around her neck, he began touching her on the breasts and then he put his penis inside her.  She will tell you he moved his penis in and out for a time.  She could hear at a stage her mother walking down the hallway and her father stopped, withdrew his penis, got up and went and hid behind the door in the room.  She heard her mother go out the front of the house as if to be looking for someone and then he opened the door and off he scooted out of the room. 

7. However, when the complainant gave evidence, she said only that on a night that she could not identify, she awakened to see her father, wearing his underpants, standing beside her bed, and that he “touched” her on the “boobs” and “vagina”, on the skin.  She could not remember if he remained standing next to the bed, nor if he said anything to her.  She became aware of her mother being awake and moving about, and said that her father hid behind the door until her mother walked past. 

8. At the close of the prosecution case, defence counsel made a submission that there was no case to answer. While acknowledging that there was no case to answer on the charge of unlawful sexual intercourse, in reliance on s 75 of the Evidence Act the judge permitted the count to go to the jury as a charge of indecent assault, based on the touching of the breasts and vagina.

9. I consider there were two problems with this course. First, as the Chief Justice has observed, if there was no evidence of unlawful sexual intercourse before the jury upon which the accused could properly have been convicted, as was the case, then the accused was entitled to have the benefit of a directed acquittal then and there. Once that ruling was made and a verdict of acquittal entered, the prosecution of that count was at an end. There was no charge remaining for the jury to consider. Section 75 of the Criminal Law Consolidation Act could have no application.  That, of itself, disposes of the matter in the appellant’s favour. 

10. Moreover, there is a second matter.  I question whether there was any proved nexus between the incident of which the complainant gave evidence and Count 7 as particularised in the opening.  In my view, on the evidence as given, the jury could not have been satisfied that the complainant was referring to the same incident.  The one of which she spoke appeared to be a different transaction.  (See R v Matthews (2005) 91 SASR 196). Therefore, even if there were, in theory, the possibility of an amendment to count 7 to replace the charge of unlawful sexual intercourse with a charge of indecent assault (about which I have considerable doubt) such an amendment could not be based on what might have been a different transaction.

11. For these reasons, the conviction on count 7 must be quashed.