R v Morton No. DCCRM-02-1010

R v MORTON
[2004] SADC 22
Chief Judge Worthington

This is an application for separate trials.
The accused is charged with four counts of rape occurring between January 1996 and February 2001. He provided therapeutic massage for a fee at his Norton Summit home and the complaints are made by four women, to whom I shall refer as Witnesses 1-4, who were clients.
Count 1 alleges rape of W1 between 1 January and 31 December 1996 by touching her clitoris without her consent.
Count 2 alleges rape of W2 on 24 September 1999 by touching her clitoris without her consent.
Count 3 alleges rape of W3 between 1 May and 31 July 2000 by digital penetration of her labia majora without her consent.
Count 4 alleges rape of W4 by inserting his finger into her vagina without her consent on 6 February 2001.
It is necessary to set out briefly the sequence of events leading up to prosecution. The incidents are as set out in the declarations and are accepted only for the purposes of the voir dire.
W4 attended at the accused’s home for a massage on 6 February 2001. She had had massages from the accused 4 or 5 times over the previous couple of years. On this occasion she had no clothing on and while she was lying on her back, he inserted his finger into her vagina.
On the next day she spoke to her boyfriend and her sister about it but, significantly for present purposes, she rang her mother, W3, to tell her. W3 revealed in the course of that conversation that she too believed that something similar had happened to her.
W3 then telephoned her friend W2, the mother of W1, to tell her what had happened to W4 and of her concern about her. During that conversation W2 and W3 each said they had been sexually abused by the accused. This was the first time either of them had told anyone else. W2 spoke to her husband who then suggested to W3 that she might like to speak to his daughter, W1, who was a therapist involved in counselling young people. A short time later W1 spoke to W3 about her daughter, W4, and a few days later, W1 told her mother, W2, that the accused had done something similar to her.
On Sunday 4 March 2001 W4 with her parents, her boyfriend and her sister, went to the accused’s home and confronted him with allegations of sexual misconduct concerning W4 and W3. He denied any impropriety.
W4 reported the matter to the police during 2001. W3 then rang W1 to advise her of that fact and to tell her that her name had also been given to the police. W3 also spoke to the police in 2001, and in 2002 the police followed the matter up further, obtaining statements from W2 and W1.
The accused has applied for separate trials in respect of each of the four counts.
The Crown seeks to lead evidence of each count in relation to other counts, not for the purpose of proving a pattern of behaviour or any other form of propensity reasoning, but for two limited purposes only. The first is to lead evidence of counts 1, 2 and 3 in support of counts 2, 3 and 4 to prove the accused’s state of mind, and the second is to prove the circumstances in which three of the complainants, W1, W2 and W3, came to make their complaints, thereby explaining delay which ranges between 1 and 5 years.
Ms Chapman, for the Crown, accepts that if she sought to lead the evidence for the purposes of propensity reasoning, it would need to comply with the threshold requirement of establishing that “the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged” (Pfennig v The Queen) (1994-1995) 182 CLR 461 at 481-482. However, she submits that because the Crown does not seek to lead the evidence for that purpose, it does not have to meet that requirement; in this case that has particular relevance to excluding concoction or collusion as a reasonable possibility. Mr Lang, for the accused, does not accept that the Crown is entitled to lead evidence of one count in respect of others unless it complies with the exclusionary test in Pfennig. Further, he submits, even if that were permissible, the Crown would still be obliged to exclude any rational view of the evidence having an innocent explanation before it could be admitted.
In R v Nieterink (1999) 76 SASR 56 Doyle CJ, with whom Mullighan J agreed and with whom Perry J was in substantial agreement, having referred to some decisions of the High Court where members of the court had discussed the admissibility of evidence of uncharged criminal conduct other than as similar fact or propensity evidence, said at pp71-72:
“It is not easy to extract clear and precise statements of principle because, as is so often the case with issues that arise in connection with the law of evidence, the application of the principle in the particular case depends very much upon the manner in which the evidence is used in the particular case. Nevertheless, I am satisfied that the principles stated in Hoch v The Queen (1988) 165 CLR 292 and Pfennig, which I have called the exclusionary principle, do not govern exclusively the admission of evidence of uncharged criminal acts.”
In R v Palaga (2001) 80 SASR 19 Doyle CJ, with whom Nyland J agreed, applied this reasoning to approve the admissibility of evidence of the cultivation of cannabis on a count of producing cannabis at one address, in relation to a separate count of production at a different address where that evidence could not be classified as similar fact evidence or propensity evidence. It is unnecessary to explore the details but, in short, the Chief Justice said that the evidence was admissible as circumstantial evidence to prove knowledge of how to produce cannabis plants and that this was so regardless of whether that evidence passed the “no rational view” test of admissibility set out in Hoch and Pfennig. In doing so his Honour referred to the analysis of a number of High Court decisions and summary of the position by McHugh J in KRM v The Queen (2000-2001) 178 ALR 385 at pp 392-394. McHugh J said that it was possible to read the passage in Pfennig “as meaning that evidence of ‘past criminal conduct’ that is otherwise relevant but incidentally reveals propensity is not governed by such a stringent test. But the matter is far from clear” (at p392).
Accordingly, although not completely free from doubt, there is strong authority for the proposition that evidence of other criminal conduct not the subject of the count itself may be admissible independently of the exclusionary principle if it is relevant to prove an issue in the count under consideration and that, because it is not governed by the exclusionary principle, the evidence does not have to meet the “no rational view” threshold before it can be admitted. Thus, if the circumstances of the case permit, I would adopt that approach in determining the admissibility of the evidence. As to whether it would in fact be admitted would still be subject to the exercise of the discretion in that its probative value must outweigh its prejudicial effect.
As to the first ground of admissibility the Crown submits that the evidence is cross admissible in the sense that in respect of each complainant, W2, W3 and W4, it shows that since 1996 the accused has known that (1) inserting his finger beyond the labia majora of a woman during massage is wrong and not part of massage therapy and (2) if he is going to do that, he needs the woman’s consent. I turn then to the evidence as it is available at this stage in the declarations.
W1 says that the accused touched her clitoris in the course of a massage in 1996: count 1. She did not say anything to him at the time, but she spoke to him later and complained about what he had done, saying that it was inappropriate, that he had no need to do it and that he had broken her trust. She also told him that he should explain to people what he was doing, especially if it involved being near “very sensitive areas of peoples’ bodies”. She says that she then told him about her own work with victims of sexual abuse and expressed the opinion that he could damage people by conduct that she regarded as unethical and unprofessional. Notwithstanding this event she continued to be massaged by him. There were later occasions during massage when, if his fingers brushed against the outside of her genital area, she would mention it to him. It is submitted that all of this evidence is admissible in proof of counts 2, 3 and 4.
W2 states that on 24 September 1999: count 2, the accused touched her clitoris deliberately and that she said to him immediately “Don’t do that”. It is submitted that this evidence is admissible in relation to counts 3 and 4.
W3 states that in about June 2000 she felt the accused’s finger “start to penetrate my vagina”, that she told him she was not comfortable about that, that he continued “fumbling with his finger at the entrance of my vagina”, that she said again that he should stop, and that he did: count 3. Nothing more was said about it. It is submitted that this evidence is admissible in relation to count 4.
It is trite to say that the accused’s state of mind in respect of each count will be governed by the circumstances relevant to that occasion. However, it would be no defence to any of the counts for the accused to say that he did not know that it was wrong to insert his finger beyond the labia majora of a woman without her consent. The issue is not whether the evidence of what each complainant said is admissible in respect of the count concerning herself, but whether what he was told by one woman on one occasion is admissible to prove what occurred, including the accused’s mental state, on one or more other occasions. If the evidence is accepted, there is no doubt that each of the women except W1 complained to him immediately about his conduct on the occasion in question. W1 spoke to him shortly afterwards and appears to have gone to greater lengths to explain why she regarded his conduct as unacceptable. But, whatever relevance such evidence might have to conduct involving that complainant herself, it is not apparent why it would be relevant to his conduct on some other occasion with some other person, unless, perhaps, he should say that he was not aware of the requirements of the law. That could raise the possibility of the Crown applying to call evidence in rebuttal but that does not need to be considered now. I am not satisfied that, as it stands, the evidence of any one complainant qualifies to be admissible in proof of what occurred with other complainants on dates that were, as I have mentioned, between one and five years later.
For this reason, I am not satisfied that the evidence of each complainant is admissible for the purpose put forward by the Crown.
If I am wrong in that and the evidence is cross admissible, I would exercise my discretion against permitting it to be led for that purpose alone. Its probative value would, at most, be marginal and it is common ground that the evidence and its cumulative effect carry with it an obvious risk of prejudice to the accused. That risk is unlikely to be cured by a direction to the jury. In this respect, the circumstances of the discussions that took place between the various complainants, including two of them in the company of others, jointly confronting the accused in March 2001 would have some bearing. In the result, however, I need not discuss that further.
The second ground upon which it is sought to lead the evidence of each count in respect of all the others is that its combined effect provides an explanation for the delay on the part of W1, W2 and W3 in complaining about the conduct of the accused. It is unnecessary to go into the details of what is contained in each of their declarations, but the thrust of the relevant parts of their declarations can be summarised as being that, once W4 took steps to complain about the accused’s conduct, the others each gradually disclosed their own allegations. While that may assist in understanding the circumstances in which, and the reasons why, each of those complainants eventually came forward to make their complaints, it does not address the principal issue, namely why each of them remained silent for as long as she did. I am therefore not satisfied that the evidence in relation to count 4 and the fact that each of the other complainants became aware of that, is admissible to explain the delay by W1, W2 and W3 in complaining about the conduct of the accused, or that the evidence of any one complainant is admissible to explain the delay in another making a complaint.
For these reasons I do not accept that the evidence on the various counts is cross-admissible and it would be inappropriate for any of the counts to be tried together. I order that there be separate trials in respect of each complainant.

[2004] SADC 22

3 February 2004