R v N, SH
[2010] SASCFC 74
•21 December 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v N, SH
[2010] SASCFC 74
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice David)
21 December 2010
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - JOINDER OF PERSONS OR COUNTS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Appeal against conviction – appellant convicted at trial of two counts of persistent sexual exploitation against a child against his step-daughter and step-granddaughter – whether separate trials should have been ordered – whether judge should have asked jury for special findings in relation to pleaded particulars – whether photographs tendered at trial were inadmissible – whether the verdict of guilty in relation to count 2 is unreasonable and cannot be supported by the evidence.
Held: appeal allowed and convictions set aside – similarity between count 1 and count 2 is unremarkable and falls well short of required probative force to justify cross admissibility – separate trials should have been ordered – judge erred in admitting photographs and failing to direct jury as to their use – open to the jury to be satisfied of the guilt of the accused on count 2 – appeal allowed and convictions set aside – retrials ordered on each count, to be tried separately.
Criminal Law Consolidation Act 1935 (SA) s 50, s 278, referred to.
R v Spanos (2007) 99 SASR 487; De Jesus v The Queen (1986) 68 ALR 1; Sutton v The Queen (1984) 152 CLR 528; R v Hoch (1988) 165 CLR 292; Phillips v The Queen (2006) 225 CLR 202; R v Ellis [2010] SASC 118; M v The Queen (1994) 181 CLR 487; Weiss v The Queen (2002) 224 CLR 300, applied.
R v N, SH
[2010] SASCFC 74Court of Criminal Appeal: Sulan, Anderson and David JJ
THE COURT.
Introduction
The appellant appeals against his convictions on two counts of persistent sexual exploitation of a child contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). The victims of his offending were his step-daughter (“V1”) (Count 1) and his step-granddaughter (“V2”) (Count 2).
Before the empanelling of the jury the appellant sought separate trials in respect of the two counts on the information. The application was refused by the trial Judge. The appellant now argues that the failure to order separate trials was erroneous and has resulted in a miscarriage of justice.
The appellant also argues that certain photographs tendered at the trial, in relation to count 2 and which were objected to, were inadmissible. Also in relation to count 2 he argues that the verdict of guilty is unreasonable and cannot be supported having regard to the evidence.
The charge and the trial
We set out the information as amended in full:
First Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[N, SH] between the 1st day of January 1973 and the 31st day of December 1976 over a period of not less than three days at Blackwood, committed more than one act of sexual exploitation of [V1], a person under the age of 17 years.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
(a)indecently assaulting [V1] by touching her on the leg in her bedroom;
(b)having carnal knowledge of [V1] by having vaginal sexual intercourse with her after the Schutzenfest in 1975;
(c)having carnal knowledge of [V1] by having vaginal sexual intercourse with her after the christening of her nieces, [K, RM] and [K, TM].
(d)having carnal knowledge of [V1] by having vaginal sexual intercourse with her after her 16th birthday party.
Second Count
Statement of Offence
Persistent sexual exploitation of a Child. (Ibid).
Particulars of Offence
[N, SH] between the 3rd day of October 1975 and the 31st day of December 1979 over a period of not less than three days at Blackwood, committed more than one act of sexual exploitation of [V2], a person under the age of 17 years.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
(a)indecently assaulting [V2] by rubbing her on her breasts in the study;
(b)indecently assaulting [V2] by placing his penis between the outer lips of her vagina; and
(c)indecently assault [V2] by inserting a finger into her vagina.
It is to be noted that in the particulars on count 2, after the evidence but before the trial Judge summed up, there was a further oral amendment by which the conduct alleged in para (b) was such that, on the evidence, there were two alleged instances of that form. Consequently that particular was split into two, namely, para (b)(a) and para (b)(b). The significance of that will be clearer when the evidence led at trial is outlined later in these reasons.
It is important at this stage to set out in full s 50 of the Act:
50—Persistent sexual exploitation of a child
(1)An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
(3)If—
(a) at any time when an act of sexual exploitation of a child was allegedly committed the child was at least 16 years of age; and
(b) the defendant proves that he or she believed on reasonable grounds that the child was of or over the prescribed age at that time,
the act of sexual exploitation is not to be regarded for the purposes of an offence against this section.
(4)Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a) subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)the alleged conduct comprising the acts of sexual exploitation;
(b) the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c) the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii)during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
(5)A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.
(6)This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section.
(7)In this section—
prescribed age, in relation to a child, means—
(a)in the case of a person who is in a position of authority in relation to the child—18 years;
(b)in any other case—17 years;
sexual offence means—
(a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)an attempt to commit, or assault with intent to commit, any of those offences; or
(c)a substantially similar offence against a previous enactment.
(8)For the purposes of this section, a person is in a position of authority in relation to a child if the person is—
(a) a teacher (within the meaning of the Education Act 1972) engaged in the education of the child; or
(b) a foster parent, step parent or guardian of the child; or
(c) a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) providing pastoral care or religious instruction to the child; or
(d) a medical practitioner, psychologist or social worker providing professional services to the child; or
(e) a person employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or any other person engaged in the administration of those Acts, acting in the course of his or her duties in relation to the child; or
(f) an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).
Both the appellant and the respondent on this appeal agree that to prove the offence the prosecution has to prove beyond reasonable doubt a course of conduct which is comprised of a series of acts. Where the series of acts is greater than one occasion the offence is established provided that, on more than one occasion over a period of not less than three days, an act of sexual exploitation was committed on the one child. In our view, this is consistent with s 50(1) of the Act.
It is to be noted that s 50(4)(b)(ii) of the Act says:
(b)the information must allege a course of conduct consisting of acts of sexual exploitation but need not —
…
(ii) identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
Nevertheless, in the present trial the particulars of the sexual exploitation on each count were specifically pleaded. The trial Judge asked for special findings in relation to each particular and, on receiving answers on each that the jury found that two of those particulars occurred, the jury were then asked for their final verdicts on each count.
The question of whether a Judge in a trial by jury should ask for answers to specific questions from a jury or ask them to return a special verdict or verdicts in order to ascertain the factual basis for a conviction was discussed in the decision of R v Spanos.[1] We adopt Debelle J’s summary of the law on that topic[2] in particular where his Honour said that “[g]enerally speaking, a special verdict consists of findings made by a jury in answer to questions asked by the trial judge on particular issues of fact”.[3] That is what happened in the present case.
[1] (2007) 99 SASR 487.
[2] (2007) 99 SASR 487 at 488-489.
[3] (2007) 99 SASR 487 at [2].
Although it is clear that a trial Judge has a discretion to take a special verdict, in our view in the present case it was, at the very least, unwise and unnecessary to do so.
The section clearly contemplates a course of conduct as distinct from particular specific acts being proved beyond reasonable doubt. If the particularity is such, as in this case, to amount to identifiable offences then it is appropriate to charge a number of offences rather than resorting to s 50 of the Act. For that reason it was unnecessary for the Judge to take the verdicts in the way he did.
Furthermore, it was unwise because of the possibility of the jury’s responses to the specific questions being unclear and does not allow for the fact that there possibly may have been various views of the evidence in relation to each particular. Even allowing for a difference of views on specific particulars, the charge could still be made out. To ask a jury to refine their thought processes as to how they reached their ultimate decision could in no way be helpful.
However, the appellant, in our view rightly, concedes that such an approach in this case would not amount to a miscarriage of justice.
The prosecution case at trial
Count 1
V1 was born in October 1960. Her natural father had died before the alleged acts took place. She has three sisters and one brother. When V1 was 12 years of age she moved with her mother and brother to live at Blackwood with the appellant, who was then in a relationship with her mother. After a short time, her brother moved away.
V1 gave evidence of being alone with the appellant at home on one occasion when her mother was working. She said the appellant stroked her in a sexual manner inside one of her legs and up to her thighs while she was lying on a bed. That evidence was the subject of particular (a) of the information. She gave evidence that, from that time onwards, he would have regular sexual intercourse with her whilst her mother was not in the house. She gave evidence that, during the period that this was happening, the appellant took inappropriate photographs of her. There was evidence that on occasions normal family photographs were taken. V1 gave evidence that the appellant took photographs of her partially clad, including her vaginal area. She thought that those photos were first taken when she was about 14 years of age. She gave evidence that she believed he had a trapdoor in his study where he hid the suggestive photographs.
V1 gave evidence that she specifically remembers an episode of the appellant having sexual intercourse with her after she, the appellant and her mother had returned from the “Schutzenfest” in 1976, when she was 16 years of age. That evidence was the subject of particular (b). She gave further specific evidence of sexual intercourse taking place between she and the appellant after the christening of her sister’s daughters. One of those daughters is the victim of count 2, V2. After the christening, the appellant took V1 home to Blackwood where sexual intercourse took place. That evidence is the subject of particular (c) of count 1.
She also gave evidence that, after her 16th birthday, a further act of sexual intercourse took place. She met her first husband, (“H”), in 1973 when she was very young. After the birthday celebration at a restaurant, H drove her home. After H left, the appellant had sexual intercourse with V1. Her mother was working that night. That evidence was the subject of particular (d).
Those four particulars are against a background of continuous sexual intercourse between the appellant and V1 and the taking of photographs as described.
After her 16th birthday, V1 left home and lived with H’s grandfather. She gave evidence that, other than in the house, sexual intercourse with the appellant also took place in the rear of a van. This took place when they went to Moana on two occasions. All of these acts took place either before she turned 16, or while aged 16.
V1 gave further evidence that the first person she told was H. She said this was about the time when she moved out of home when she was 16 years of age. She said that after she moved out of home, the appellant never had sexual intercourse with her again. She gave evidence that she first reported these matters to the police in 2004.
It was put to V1 in cross-examination that none of these events took place. She maintained that they did.
H was called. He gave evidence that he first met V1 in late 1974 or early 1975. They started going out together. He was living with his grandfather nearby to where V1 was living. He gave evidence that she complained about the appellant having sexual relations with her. He said that she talked about these occurrences on a number of occasions. Those conversations first began before she left her family home. H also gave evidence that she complained to him that the appellant had taken sexually explicit photographs of her. These conversations also took place before she left home. H gave evidence that after V1 left home she lived with H and his grandfather until 1977. They married in 1978, had three children and then divorced in 1986.
Count 2
V2 gave evidence. She was born on 31 July 1969. During the dates when it is alleged the offending took place she was between six and 10 years of age. She is the daughter of V1’s sister.
V2 gave evidence that she would visit her grandmother’s house where the appellant and V1 were living. She first did this when she was in grade 1 in 1975. She would visit the house with her sister, (“T”). She gave evidence that, when she first visited the house, the appellant would chase her around and “grope” her bottom. He grunted whilst doing it. He would do this in front of her grandmother. She gave evidence that, when she was about the same age, she woke up in a double bed with the appellant and her grandmother while she was staying over one night. She cannot recall whether T was also sleeping over. She said that whilst in the bed on that occasion the appellant’s penis was between her legs and he was moving it against the lips of her vagina. That evidence is the subject of particular (b)(a). As we have indicated, particular (b) was split into two by an oral direction of the Judge after the evidence.
On another occasion the appellant took her into his study when it was dark, placed her on top of him and was rubbing his penis on her vagina. She had no pants on. That evidence is the subject of particular (b)(b). She said there was a bed in the study.
She also gave evidence that, on another occasion, she was sitting on the floor, in a room which had a pool table, playing cards with T. She said that the appellant came over to her, put his hand inside her underpants and was playing with her vagina. She cannot recall whether his finger was inside her vagina or outside. That evidence is the subject of particular (c). V2 also said that, on a further occasion, he took her into his study and laid her on the bed and rubbed her chest really hard over the area of her breasts. She thinks she was seven or eight years of age when that occurred. That evidence is the subject of particular (a). She said that whilst he was doing that her grandmother came into the study and he stopped.
V2 gave evidence that photographs were taken by the appellant of her and her sister whilst they were naked in the shower. She said that photographs were also taken of the whole family without clothing at Maslins Beach.
When she was about 15 or 16 years of age, she complained about the appellant’s behaviour to V1 when they were driving through Blackwood and past the appellant’s house. In 2004 she reported the matter to the police.
Detective Barry Beaumont was called. He gave evidence of a search of the appellant’s house on 1 September 2004 in which photographs were found. However the photographs, which were tendered at trial, could be described as normal family snapshots plus a number of photographs of the family without any clothes at Maslins Beach which at that time was a “nude” beach. There were no photographs of an explicit sexual nature of either V1 or V2 as described in their evidence. There was also no trapdoor found in the study area.
Detective Beaumont interviewed the appellant on 23 November 2004. The appellant denied the allegations.
The final prosecution witness was V1’s mother and V2’s grandmother. In short, her evidence was that she saw no inappropriate behaviour between the appellant and either V1 or V2.
The appellant did not give evidence.
The verdicts
As we have mentioned, the trial Judge asked for special findings in relation to each of the particulars on each count. Having received those decisions of the jury, the Judge then asked in relation to the count itself whether the jury found the accused guilty or not guilty.
On the first count, the jury by majority verdict found that particulars (a) and (b) had been proved. They could not find that particulars (c) or (d) had been proved. As two of the acts of sexual exploitation had been proved to have occurred, the jury found the appellant guilty of count 1.
On the second count, the jury could not find that particulars (a) or (c) had been proved. They found by majority verdict that particulars (b)(a) and (b)(b) had been proved. By majority verdict, they found the appellant guilty of count 2.
As we have indicated, in our view, that is an inappropriate approach to the taking of the verdict but there is no suggestion that it resulted in a miscarriage of justice.
Appeal
We set out the grounds of appeal:
As to counts 1 and 2
1.There has been a miscarriage of justice as a result of the failure of the Learned Trial Judge to order separate trials in respect to each count on the Information.
2.There has been a miscarriage of justice in that the Learned Trial Judge erred in his directions relating to the cross-admissibility of the evidence involving the two complaints said to establish an underlying unity or system.
As to count 2 only
3.There has been a miscarriage of justice as a result of the Learned Trial Judge’s failure to exclude the evidence of photographs taken at “Maslins Beach”.
4.In the alternative, if the photographs were properly admitted into evidence, the Learned Trial Judge erred in failing to direct the jury as to the permissible use of that evidence.
5.The verdict is unreasonable or cannot be supported having regard to the evidence.
Particulars:
(i) the complainant’s evidence was unsupported;
(ii) the complainant’s evidence was contradicted by the evidence of her grandmother in material respects relating [to] the specific incident the subject of the first act particularised and the sleeping arrangements which related to one of the other acts particularised;
(iii) the complainant’s evidence related to incidents which occurred when she was very young with the evidence being vague in nature and lacking in detail;
(iv) the complainant’s evidence was inherently implausible.
Grounds 1 and 2
It is convenient to deal with both of these grounds together. They refer to both counts on the information.
Before a jury was empanelled counsel for the appellant made an application pursuant to s 278(2) of the Act for the two counts on the information to be tried separately. The Judge refused the application. The Judge, in his directions to the jury, explained how evidence of each count could be used on the other count. Counsel for the appellant argued, on the application before the trial Judge and before this Court on appeal, that there was no cross admissibility. It follows that the issues on grounds 1 and 2 are inextricably entwined.
It is important that we set out s 278 in full:
278—Joinder of charges
(1)Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2)Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
(2a)Despite subsection (2) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a) subject to paragraph (b), those counts are to be tried together;
(b) the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim;
(c) in determining admissibility for the purposes of paragraph (b)—
(i)evidence relating to the count may be admissible in relation to another count concerning a different alleged victim if it has a relevance other than mere propensity; and
(ii)the judge is not to have regard to—
(A)whether or not there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant; or
(B)whether or not the evidence may be the result of collusion or concoction.
(3)This section does not affect any other provision of this Act or any other enactment permitting more than one charge to be joined in the same information.
(4)In this section—
sexual offence means—
(a) an offence against section 48, 48A, 49, 50, 56, 58, 63B, 68 or 72; or
(b) an attempt to commit, or an assault with intent to commit, any of those offences; or
(c) a substantially similar offence against a previous enactment.
Subsection (2a) is a recent addition to s 278 of the Act.[4] In our view, the purpose of the subsection is clear, namely:
1If two or more counts are properly charged on the one information, they are to be tried together with certain exceptions;
2The Judge may order a separate trial (but does not necessarily have to) if evidence in relation to a count relating to a particular alleged victim is not admissible in relation to another count relating to a different alleged victim;
3Evidence may be cross admissible if there is a relevance other than mere propensity; and
4It is not a matter for the Judge, in considering admissibility, to have regard to whether there is a reasonable explanation consistent with the innocence of the defendant or whether or not the evidence may be the result of collusion or concoction.
[4] Section 278(2a), inserted by the Criminal Consolidation (Rape and Sexual Offences) Amendment Act 2008 (SA), came into operation on 28 November 2008.
In De Jesus v The Queen[5] the applicant was charged with the rape of two women. Gibbs CJ, Brennan and Dawson JJ reaffirmed the remarks of Brennan J in Sutton v The Queen[6] where his Honour said:[7]
When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury’s mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted. There may be an exceptional case where countervailing factors appear but I do not presently foresee them. As Lord Cross of Chelsea observed in Director of Public Prosecutions v. Boardman, so long as the general rule excluding similar fact evidence is maintained “the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the inadmissible evidence by trying all the charges together”. It would be misleading for a judge to require some further “special feature of the case” — the criterion adopted by Lord Pearson in Ludlow v. Metropolitan Police Commissioner — before giving a direction for separate trials. The purpose of provisions such as s. 278 is to avoid the technicalities and rigid rules of criminal pleading and procedure, but not to impair the administration of criminal justice. Irvine C.J. pointed out in R. v. Brent with respect to the corresponding Victorian provision, that it did not “intend to introduce any fundamental alteration in the general rule that the tribunal to determine the guilt or innocence of a person charged should not be affected by the evidence given in relation to another charge — certainly not the evidence given by another person in relation to another charge”. The price of dispensing with the technicalities and rigid rules of criminal pleading and procedure is the imposition upon the trial judge of the onerous function of directing the course of proceedings to ensure that justice is properly administered. To that end he is given a discretion to order separate trials. Where the evidence admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the sound exercise of the discretion generally (if not universally) requires a direction for separate trials (cf. per Lord Hailsham of St. Marylebone in Boardman; Novac).
Footnotes omitted
[5] (1986) 68 ALR 1.
[6] (1984) 152 CLR 528.
[7] (1984) 152 CLR 528 at 541
Brennan and Dawson JJ reaffirmed those statements in R v Hoch[8] where they said:[9]
If the evidence admissible on each count is not admissible on the other counts and there is a consequent risk of impermissible prejudice to an accused in the conduct of a single trial on all counts — and there usually is such a risk in sexual cases — separate trials should be ordered: De Jesus v. The Queen.
Footnote omitted
[8] (1988) 165 CLR 292.
[9] (1988) 165 CLR 292 at 298.
In our view, the amendment of s 278 by the insertion of subsection (2a) does not alter the general proposition that if the evidence on one count is not admissible on the other count or counts, the Court will usually exercise its discretion to order separate trials, particularly in sexual cases. The section limits the Court in deciding the cross admissibility of the evidence[10] but upon the Court determining the evidence is not cross admissible the Judge, in exercising his or her discretion, must have regard to the principles referred to in Sutton and De Jesus.
[10] Criminal Law Consolidation Act 1935 (SA) s 278(2a)(c).
We are also of the view that s 278(2a)(c)(i), by reference to mere propensity, does not abrogate the general discretion to exclude evidence where the probative value is slight and is outweighed by the impermissible prejudice.
The effect of s 278(2a)(c)(ii)(A) is that the prerequisite to be established before similar fact evidence is admissible, namely, that a reasonable explanation consistent with innocence must be excluded[11] is now a matter for the jury and not a matter for the Judge. Similarly, s 278(2a)(c)(ii)(B) directs that, in considering the improbability of two or more people making similar complaints, questions of collusion or concoction are not matters of admissibility but matters to be decided by the jury. Other than those two caveats, the law as stated in Sutton, De Jesus and Hoch applies.
[11] Pfenning v The Queen (1995) 182 CLR 461 at 483.
The prosecution at trial argued that the evidence of V1 and V2 was cross admissible on the basis that the probability of two family members reporting that a third family member did similar sexual things to each of them separately but in broadly similar circumstances being a coincidence is so unlikely that either both women had told the truth and were sexually interfered with as they described or their evidence is a product of concoction.
The question for this Court is whether the Judge’s decision not to sever the information and order separate trials on each count amounted to a miscarriage of justice. In the light of authority, there is no dispute that it would be a miscarriage of justice if he erred in finding the evidence of V1 and V2 was cross admissible.
The respondent argues that the Judge’s finding of four primary facts to establish a sufficient degree of similarity to support the above proposition was adequate. He points to the following matters:
1Each girl was a family member;
2Each girl alleged that the accused photographed her naked or in sexually explicit poses;
3The offending against each only ceased when the accused no longer had access to the particular complainant; and
4Other than the evidence of V2 that two acts of intercourse took place in a van at the beach, all offending took place at the house at Blackwood.
The appellant argues that the similarities relied upon are hardly unique. Added to that he argues certain dissimilarities, namely:
1The difference in ages of the two girls;
2V2 never complained of full sexual intercourse;
3V1 lived with the appellant whereas V2 used to visit; and
4The nature of the taking of the photographs was different although both had a sexual aspect.
To be added to that is that, although there is a certain overlapping of the periods that each were at the house, there is no reference to the other victim in relation to each of the particulars. They appeared not to be present or have anything to do with the particular allegation. In other words, the acts were quite separate and distinct in relation to each victim.
The test of cross admissibility in a sexual case was referred to in Hoch in which Mason CJ, Wilson and Gaudron JJ said:[12]
Where, as here, an accused person disputes the happenings which are said to bear a sufficient similarity to each other as to make evidence on one happening admissible in proof of the others, similar fact evidence bears a different complexion for the issue is whether the acts which are said to be similar occurred at all. In such a case the evidence has variously been said to be relevant to negative innocent association (R. v. Sims) or as corroboration (Reg. v. Kilbourne) but the better view would seem to be that it is relevant to prove the commission of the disputed acts: see Boardman, per Lord Hailsham and Lord Cross; Sutton, per Deane J. Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well-known passage in the speech of Lord Wilberforce in Boardman:
“This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.”
Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible. When the happenings which are said to bear to each other the requisite degree of similarity are themselves in issue the central question is that of the improbability of similar lies: see Sims; Boardman; see also Rupert Cross, R. v. Sims in England and the Commonwealth, Law Quarterly Review, vol. 75 (1959), p. 333; Piragoff, Similar Fact Evidence (1981), pp. 38-47.
Footnotes omitted
[12] (1988) 165 CLR 292 at 295.
Also, in Phillips v The Queen,[13] the Court held:
Despite that passage, and despite the reformulation of the tests stated in Pfennig v The Queen in R v O’Keefe, neither of those cases departed from a fundamental aspect of the requirements for admissibility: the need for similar fact evidence to possess some particular probative quality. The “admission of similar fact evidence ... is exceptional and requires a strong degree of probative force’. It must have “a really material bearing on the issues to be decided”. It is only admissible where its probative force “clearly transcends its merely prejudicial effect”. “[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind”. The criterion of admissibility for similar fact evidence is “the strength of its probative force”. It is necessary to find “a sufficient nexus” between the primary evidence on a particular charge and the similar fact evidence. The probative force must be “sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused”. Admissible similar fact evidence must have “some specific connection with or relation to the issues for decision in the subject case”. As explained in Pfennig v The Queen:
“[T]he evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.”
[13] (2006) 225 CLR 303 at [54].
In R v Ellis[14] Sulan J, with whom Duggan J agreed, observed that in considering whether evidence in respect of one count is admissible on other counts it is necessary to identify the purpose for which the evidence is sought to be led. In this case the prosecution sought to rely on the compatibility of the two complainants giving a similar account of the abuse they suffered.
[14] [2010] SASC 118 at [43].
In our view, the similarities between the evidence of V1 and V2 are not such as to have the requisite degree of probative force to make it just to come to the conclusion that it was improbable that V1 and V2 would tell similar stories about the appellant if they were not true. Other than the fact that there was evidence that the appellant photographed each of the victims in indecent circumstances, every other aspect of similarity as argued by the respondent is unremarkable and falls well short of the required probative force to justify cross admissibility.
In the light of that finding we consider it unnecessary, and indeed illogical, to consider ground 2 because that focuses upon the trial Judge’s directions on cross admissibility. In our view, there should have been no such directions as separate trials should have been ordered.
The appeal is allowed on grounds 1 and 2.
Grounds 3 and 4
Grounds 3 and 4 are set out above. We will deal with these two grounds very briefly. The photographs found at the appellant’s home when the search by the police took place were tendered subject to objection at the trial. Generally speaking, the photographs were normal family snapshots, but included among them were a number of photographs taken at Maslins Beach in which V2 is shown naked. She is depicted with the appellant and the appellant’s former partner. All are naked. There is no dispute that at that time Maslins Beach was a legally nudist beach. The learned trial Judge failed to address the jury of the use it may make of the photographs. It is argued before this Court that they may have been used for a number of purposes, namely, to show a prurient interest on the part of the appellant, or they formed part of the grooming process by the appellant towards V2.
The appellant argues that the lack of directions on the photographs was an error, as there is no basis upon which the jury could use them and this might have led to impermissible reasoning by the jury. There is merit in the appellant’s argument. The relevance of the photographs was so slight that in our view they should have been excluded. In any event, the Judge failed to direct the jury of the use that could be made of them.
We consider that grounds 3 and 4 are made out. If the complaint was limited to those grounds we would conclude that no substantial miscarriage of justice had occurred by admitting the evidence and failing to adequately direct the jury how they could use it.
Ground 5
This ground is set out above and asserts that the verdict is unreasonable and cannot be supported having regard to the evidence. Like grounds 3 and 4, this ground only applies to count 2 and the case in relation to V2.
In considering the question of whether the verdict was unreasonable or could not be supported having regard to the evidence we must, of course, excise from that exercise any questions of cross admissibility and support the prosecution could obtain for count 2 from count 1. The appellant now argues that the verdict was unreasonable because:
1V2’s evidence was unsupported;
2V2’s evidence was contradicted by her grandmother;
3The incidents happened when V2 was very young and her evidence lacked detail; and
4V2’s evidence was inherently implausible.
Furthermore, Mr Muscat SC, counsel for the appellant on appeal, argues that there were other worrying factors with her evidence. It was an agreed fact that she had an injured left arm from an accident in November 1979 and she was shown in a photograph with her left arm in a sling at the appellant’s house. This is in contradiction to her evidence that she had no recollection of being at the appellant’s house after her parents separated in 1977.
We remind ourselves of the principles for the test as stated in M v The Queen[15] and also Weiss v The Queen.[16] The test is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. It is not sufficient to merely show that the evidence is open to criticism or that there was material which might have led to a different conclusion. The Court must make its own independent assessment of the evidence and determine whether, making “due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record”, the accused was proved beyond reasonable doubt to be guilty of the charge.[17]
[15] (1994) 181 CLR 487.
[16] (2005) 224 CLR 300.
[17] Weiss v The Queen (2005) 224 CLR 300.
In our view, making an independent assessment of the evidence and also allowing for the limitations of an appellate court as compared to the advantage of a jury, we are unable to conclude that it was not open for the jury to be satisfied beyond reasonable doubt of the guilt of the accused on count 2. There are a number of points, as set out by the appellant in his argument in this Court, upon which he could rely at trial to undermine the evidence of V2. The fact that her evidence was unsupported is unremarkable and common in cases of this type. The fact that her evidence was contradicted by her grandmother, in that her grandmother did not give any indication of seeing anything untoward in the behaviour of the appellant towards V2, is a matter very much for the jury. They had the opportunity of assessing V2 and her grandmother. Inconsistencies in her evidence which were established at the trial, in particular the fact that she had no recollection of being at the appellant’s house after 1977 when a photograph indicated she had, was also a matter to be taken into account by the jury when assessing V2 and was, of itself, not fatal to her evidence.
This ground of appeal is dismissed.
Conclusion
The appeal is allowed and the convictions are set aside. The Court orders retrials on each count, to be tried separately.
22
9
1