R v MJJ; R v CJN

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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…

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Details
Case
[2013] SASCFC 51
Decision Date

CaseChat Overview and Summary

This case concerned appeals against conviction and sentence brought by R v MJJ and R v CJN. The appeals involved the admissibility of evidence of discreditable conduct under the *Evidence Act 1929* (SA), specifically section 34P, and the sentencing discretion of the trial judge. The Court of Criminal Appeal of South Australia was required to determine whether the trial judge had erred in admitting certain evidence and whether the sentences imposed were appropriate.

The primary legal issues before the court were: (1) the correct interpretation and application of section 34P of the *Evidence Act 1929* (SA) concerning the admissibility of evidence of discreditable conduct, and whether the trial judge had correctly applied this provision; and (2) whether the sentences imposed on MJJ, including the head sentence and non-parole period, were within the proper exercise of the sentencing judge's discretion.

The court considered that section 34P of the *Evidence Act 1929* (SA) regulates the admissibility of discreditable conduct evidence, requiring that such evidence cannot be used to suggest a defendant is more likely to have committed an offence due to past discreditable conduct. While the Act modifies common law principles, the court found that common law authorities on the probative force of discreditable conduct evidence and the weighing of its probative value against prejudicial effect continue to inform the application of section 34P. The court noted that section 34P(2) allows for the admission of such evidence for a permissible use if its probative value substantially outweighs any prejudicial effect, and if it has strong probative value when used as circumstantial evidence of a propensity or disposition. Regarding sentencing, the court held that the sentence imposed on MJJ, while substantial, was within the sentencing judge's discretion, considering his criminal antecedents and the nature of the offending.

The appeals against conviction were dismissed. Leave to appeal against sentence was granted to MJJ, but that appeal was also dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.… 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. 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].

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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