R v O, AE - [2007] SASC 206

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v O, AE
[2007] SASC 206
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Layton)
8 June 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Sexual offences - uncharged acts - whether evidence of uncharged acts admissible - uncharged acts properly admitted as circumstantial evidence relevant to proof of the charged act - whether trial Judge erred in failing to direct as to standard of proof of uncharged acts - no direction as to standard of proof required.
Held: appeal dismissed.
R v Nieterink (1999) 76 SASR 56; R v IK (2004) 89 SASR 406, applied.
Tully v The Queen [2006] HCS 56; Gipp v The Queen (1998) 194 CLR 106; BRS v The Queen (1997) 191 CLR 275; Hoch v The Queen (1998) 165 CLR 292; Pfennig v The Queen (1995) 182 CLR 461; P v S, B [2006] SASC 319; R v Clifford (2004) 233 LSJS 157; R v Kostaras (2002) 222 LSJS 373; R v Sciberras (2003) 226 LSJS 473; R v M, RB [2007] SASC 207, discussed.

R v O, AE
[2007] SASC 206
Court of Criminal Appeal: Doyle CJ, Debelle and Layton JJ

DOYLE CJ: The appellant was tried before a District Court Judge and jury on an Information alleging one count of indecent assault on L (count 1), and one count alleging that he raped L (count 2). A charge of unlawful sexual intercourse was laid as an alternative to count 2.
The jury returned a verdict of not guilty on count 1, and a verdict of guilty on count 2.
The appellant appeals against the conviction by leave. Two grounds of appeal were argued. First, that the Judge erred in admitting evidence from L of sexual misconduct by the appellant towards her in a period between the incident the subject of count 1 and the incident the subject of count 2. Second, that the Judge erred in failing to direct the jury that they could use the evidence of the uncharged acts to support a guilty verdict, only if they were satisfied beyond reasonable doubt that those uncharged acts had occurred, or only if they were satisfied beyond reasonable doubt that the course of conduct that they constituted was established beyond reasonable doubt.
The appeal raises yet again the admissibility of uncharged acts (as they are called, and as I will call them for convenience) and the issue of the appropriate directions to be given to a jury about proof of uncharged acts. This is an issue on which differing views have been expressed by intermediate appellate courts in Australia: see Tully v The Queen [2006] HCA 56 at [65] Kirby J. It is an issue with which this Court has had to grapple on a number of occasions in recent times.
Facts
L was born in 1987. In 1993 she and her younger sister were placed in foster care with the appellant’s adult sister. The appellant operated horse stables. L and her sister developed an interest in horses, and often went to the stables. The appellant taught L how to feed and to groom the horses. L went to the stables almost daily. The appellant often ate his meals with his sister and with the two girls. The appellant’s sister often came to the stable. Other young people came to the stables fairly regularly to ride horses. That much was common ground.
L said that the incident the subject of count 1 occurred in the latter part of 1999, when she was 12 years old. She was helping the appellant administer an injection to a horse. She and the appellant were alone at the time. She accidentally mishandled the syringe that she was holding. The appellant became angry, and she apologised. The appellant, she said, grabbed her and touched her on the breasts and placed his hand on her vagina outside of her clothing. L did not speak to the appellant or to her foster mother about the incident.
The appellant denied the allegation. He recalled an occasion, which he said was some years later, when L was helping him inject a horse. But there were a number of different features to the incident. In any event, he denied sexually assaulting L on the occasion in question. He gave evidence that L’s description of the handling of the horse was not in accordance with his practice or with good practice.
L said that the incident the subject of count 2 was in about August or September 2003, about four years later.
L gave evidence, an objection to the evidence having been overruled, of a series of acts of sexual misconduct beginning shortly after the incident the subject of count 1. They were indecent assaults involving the appellant touching her breasts and vagina on the outside of her clothes, and inside her clothes, and on occasions inserting a finger or fingers into her vagina. She said that this happened often, almost daily. L said that on occasions she took a meal to the appellant’s room, and sometimes he would be dressed only in his underwear, and would get her to touch his penis on the outside of his clothing. She said that on occasions when they were driving to race meetings the appellant asked her to engage in sexual intercourse, but she always refused.
The appellant flatly denied these allegations. He said that other people were often around the stables, including his sister, and that the sort of thing described by L would not have escaped observation.
L did not complain to the appellant’s sister, her foster mother. L said she thought that the appellant’s sister would support the appellant. She said that she feared she might be moved if she complained, and would be separated from her younger sister. There were other people with whom L had dealings and to whom she might have complained, but she did not. They included a teacher at her school, with whom she had a good relationship.
L said that the incident the subject of count 2 occurred in the following circumstances. She was preparing some feed for the horses in the feed shed. The appellant walked up to her, turned her around and pushed her head down. He held her down with his left hand on her back. The appellant reached around to the front of her jeans with his right hand and undid them. He pulled her jeans and underwear down to her knees. He inserted at least one finger into her vagina, and moved a finger or fingers around and then stopped. L said that she resisted, but was unsuccessful. The appellant was said to be about six feet tall and to weigh approximately 130 kg. L was described as “quite small”. L said that at the end of the incident, while she was pulling up her jeans and adjusting her shirt, she saw the appellant’s sister standing outside, and that the sister “gave her a dirty look”. L did not complain about the incident.
The appellant denied that the incident occurred. His sister gave evidence that there was never an occasion when she saw her brother emerge from the feed shed, and she saw L inside the shed adjusting her clothing. The appellant gave other evidence tending to cast doubt on L’s version.
About two months later, on 4 November 2003, L told the government department that was responsible for her care that she did not wish to live with the appellant’s sister any more. She did this through the school teacher to whom I referred before. L agreed that she told the departmental officer that she would be prepared to stay with the appellant’s sister if she was given more freedom. She did not mention the sexual abuse of which she complained in evidence. L first complained to the police on 13 March 2005, some four years after the incident the subject of count 1, and some 18 months after the incident the subject of count 2.
The Judge’s ruling and directions
The Judge admitted the evidence of the uncharged acts on the basis that it tended to show that the incident, the subject of count 2 “did not happen out of the blue”. Otherwise, he said, the jury might be left with the impression that on L’s account the appellant interfered with her at the age of 12, but did not touch her again until she was over 16 years of age, even though she was living next door and attending his stables on a daily basis.
The Judge gave clear and careful directions about the possible significance of L’s delay in complaining about the appellant’s conduct, and about the impact of delay on the appellant’s ability to defend himself. He warned the jury that they should scrutinise L’s evidence “with great care”, and that it would be “dangerous to act upon that evidence” unless “completely satisfied of its truth and accuracy”. No complaint was made about these directions. The summing up was generally clear, comprehensive and fair.
The Judge gave the jury careful and clear directions about the use of the uncharged acts. He warned the jury that it would be wrong to use the evidence to establish “a propensity or tendency on the part of the accused to commit the charged offences”. He emphasised that they could convict the appellant only if satisfied of his guilt based on the evidence relating to a particular count, and that they could not convict him simply because they were satisfied that he had committed one or more of the uncharged acts. He told the jury clearly, and in terms that cannot be criticised, how the evidence could not be used. He also told the jury how the evidence could be used. The central part of that direction is as follows:
Without that evidence – without the evidence relating to the uncharged acts – the circumstances of the feed shed incident might appear quite artificial or unrealistic. It would have appeared that after committing the first offence the accused – on the Crown case – did not sexually interfere with [L] for another four years, though she attended his home on a daily basis.
Putting it another way, it would have looked as if the feed shed incident had happened out of the blue, so to speak.
Admissibility
As I have noted, the Judge admitted the evidence of the uncharged acts on the basis that the evidence could be used to show that the incident the subject of count 2 did not “come out of the blue”. I take that to mean that the jury could use the evidence to support a conclusion that the appellant was prepared to seize an opportunity to engage in sexual conduct, had reason to believe that L would submit to him if he did (even though not consenting to what he did), and that L would not complain. If this evidence was not before the jury, they might find it difficult to accept that the appellant would suddenly have acted as L alleged, even though they were in daily contact.
Mr Vadasz, counsel at trial for the appellant and on appeal, submits that this evidence lacked probative force in relation to count 2. He said that the evidence might be relevant if consent was not in issue, but that the evidence was not relevant to proof of acts involving force, and involving intercourse without L’s consent. As the offence of rape was not one that involved L submitting to the appellant, there was no need to explain why she might have submitted. The lack of consent made the incident the subject of count 2 a different kind of incident from the uncharged acts. He added that allegations of rape often involved conduct that was “out of the blue”.
I do not agree. I agree with the Judge’s assessment of the probative use or value of the evidence. I appreciate that the present case differs from many cases involving sexual abuse of young girls and young women. Count 2 was a charge of rape. Rape is a crime that often comes out of the blue, particularly when the alleged offender is a stranger. But in a family or domestic setting in which the alleged incidents occurred, the evidence of L would have been substantially less plausible if it stood alone without the evidence of the uncharged acts. The evidence of L about the uncharged acts could explain the appellant’s boldness in taking the opportunity to act as he did. Although count 2 is a charge of rape, and the jury must have been satisfied that L did not consent, L’s conduct involved a kind of submission to the appellant. She did not kick and scream, nor did she immediately complain. The evidence of the uncharged acts had the potential to explain why L reacted as she did. It can also be said that the uncharged acts that L described involved an element of rough handling, which had some similarities to the behaviour of the appellant in the incident the subject of count 2. Accordingly, the starting point must be that the evidence of the uncharged acts was circumstantial evidence that had relevance to proof of the charged act. The uncharged acts provided a background that made L’s account of the incident, and her response to it, more believable. This use of the evidence did not involve any element of propensity reasoning.
I appreciate also the prejudicial tendency of the evidence of the uncharged acts. From a practical point of view there was little that the appellant could do but deny that the uncharged acts occurred, having regard to the general nature of the allegations and the frequency of the alleged uncharged acts. There was a risk of this evidence prejudicing the jury. The Judge was bound to do all that he could to prevent that risk materialising, and in my opinion he did so. His directions in that respect were clear, adequate and firm.
Mr Vadasz relies on a number of decisions, and in particular Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 and BRS v The Queen (1997) 191 CLR 275 to support a submission that the evidence was not admissible because it did not have the special probative value required to render admissible evidence of uncharged criminal acts. As I understand his submission it is, in effect, that the evidence was not admissible because it could not satisfy the test for admissibility, referred to sometimes as “the exclusionary principle”, established by the High Court in Hoch v The Queen (1998) 165 CLR 292 and in Pfennig v The Queen (1995) 182 CLR 461.
In R v Nieterink [1999] SASC 560; (1999) 76 SASR 56 I reviewed these and other decisions at some length. I will not repeat that review here. I concluded as follows at [75]-[78]:
My conclusion from my consideration of the reasons of the various members of the High Court in BRS and in Gipp is that most members of the Court have, at various stages, accepted the admissibility of evidence of uncharged criminal conduct, independently of the operation of the exclusionary principle. 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 and Pfennig, which I have called the exclusionary principle, do not govern exclusively the admission of evidence of uncharged criminal acts.
Applying those principles to the present case, I conclude that the evidence of the uncharged acts was admissible, in brief, on a number of bases. First, it could explain how the first charged incident came about, because it showed what might be called a lead up to the first charged incident. It could also explain the lack of surprise on the part of R. It could explain the confidence that the appellant might have had in repeating his conduct when committing each of the alleged offences. The submission of R to him over a period of time would give him confidence that she would submit again. It might help to explain the fact that R did not complain to her mother. The evidence could also establish a sexual attraction by the appellant towards R.
This is the basis upon which its admissibility was supported at trial, although in rather more general terms.
The evidence of the uncharged acts was not admissible under the exclusionary principle. In the present case, the evidence of uncharged acts did not prove a fairly specific or distinctive mode of offending that would enable a jury to reason in the direction of guilt simply from the manner in which the offences were committed compared with the manner in which the uncharged acts occurred. No other basis for the admissibility of the evidence was identified under the exclusionary principle.
I adhere to that view. It has subsequently been applied in a number of cases in this State.
The admissibility of evidence of uncharged acts, and the directions that should be given in relation to them, were most recently considered by the High Court in Tully. Kirby J referred to the issue in passing, but concluded that the case before him was not an appropriate occasion to clarify the law with respect to uncharged acts: at [18]-[24], [65]-[67]. Hayne J made no reference to the issue. Callinan J considered the issue at some length. He decided in the end that the case was not an appropriate occasion for the final resolution of the issues that arose: at [149]. But he made the following observations that have some relevance to the present case. He said at [140]:
The judgments of the majority in Gipp and subsequent authority accordingly do not, I would emphasize, countenance the reception of evidence simply as relationship evidence “to explain the nature of the relationship”. They require as a minimum that evidence of uncharged acts have some actual direct probative value relevant to the issues, that it be carefully scrutinized before it is admitted, that it may need to be characterized as propensity evidence, and that it almost always will require, if admitted over objection, directions appropriate for evidence of that kind.
A little later he made plain his concern about the potential for the misuse of such evidence, when he said at [145]:
Nothing that has been said in the cases before Gipp and since it, nor any criticism or otherwise of it, serves therefore to allay my very serious concerns about the reception, over objection, of non-specific, potentially prejudicial “relationship” or “contextual” or “background” evidence. Further, the practical reality is that in a case such as this one, in which there are multiple recurrent counts of the same offence or similar offences over a considerable period, any justification for the leading of “relationship”, “contextual” or “background” evidence will not be well founded. The position may, for example, be different if there is only one or a small number of offences charged and:
“a truthful complainant is likely to be disbelieved if relationship evidence is excluded and in consequence the jury derive the impression that the complainant is saying that the accused molested him or her out of the blue”. (footnote omitted)
That comment is relevant to the present case. He went on to say at [147]:
It may be that once it is established, if such be the case, that the evidence in question is truly relationship evidence, that the proper directions are those which Doyle CJ (Perry J and Mullighan J agreeing) in the Full Court of the Supreme Court of South Australia thought appropriate in R v Nieterink. After reviewing the authorities, including Wilson, his Honour pointed out that in many cases of sexual offences against children, the evidence of uncharged acts had several potential uses. Almost certainly correctly, in my respectful opinion, his Honour said that the evidence of a particular relationship might be admissible to explain a criminal act, or the circumstances in which it was committed, that might otherwise be surprising, and, on that account, implausible. His Honour pointed out that the evidence may establish a pattern of guilt to explain a child’s submission and silence. I certainly agree with his Honour’s opinion that there has been a tendency towards an unsatisfactory non-specificity in the use of the term “relationship”. I further think, as did his Honour, that the term “background” is unsatisfactory because of its failure to identify the precise manner in which it is suggested that the evidence of uncharged acts can be used. (footnotes omitted)
Heydon J agreed with these observations at [151], as did Crennan J at [156].

There is nothing that I can find in their Honours’ reasons in Tully to indicate that I should depart from what I said in Nieterink. I do not mean that I treat what is said in Tully as an endorsement of my conclusion in Nieterink. But until the High Court settles the law on the topic, this Court should maintain the approach taken in Nieterink and followed in this State in subsequent cases. At the same time, the cautionary points made by Callinan J should not be overlooked.
Applying the approach that I took in Nieterink, I consider that the evidence of the uncharged acts was admissible.
To be admissible the evidence did not have to satisfy the strict test or standard established by Hoch and Pfennig. The evidence was admissible as circumstantial evidence. The basis of its admissibility, based in turn on its probative effect, was encapsulated by the Judge’s reference to proof that count 2 did not “come out of the blue”. The evidence had a prejudicial tendency that required the Judge to give careful cautionary directions to the jury. He did so. But that aspect of the evidence did not make it inadmissible, nor could it be said that its prejudicial effect outweighed its probative value. The generality of the evidence did not make it inadmissible.
For those reasons I reject the submission that the Judge erred in admitting the evidence.
The Judge’s directions
Mr Vadasz submits that the Judge should have directed the jury that they could use the evidence of the uncharged acts only if satisfied beyond reasonable doubt that those acts occurred.
Authority in this State does not support that submission, if the uncharged acts are used as circumstantial evidence, in the manner in which they were used in this case, and do not amount to an indispensable link in the chain or process of reasoning to guilt. This is a matter on which I take the law in this State to be settled by this Court’s decision in R v IK [2004] SASC 280; (2004) 89 SASR 406. I refer to my reasons at [78]-[86], to the reasons of Perry J at [126]-[132], and to the reasons of Vanstone J at [143]-[152]. Until the High Court settles the position, that decision should be followed in the interests of certainty and consistency. The decision was treated as settling the law in this State in R v S, B [2006] SASC 319 at [25], in a judgment with which the other members of the Court concurred. The decision in IK has been followed in other cases in this State.
In any event, consistently with what was said in Nieterink and IK about the undesirability of complicating directions by referring to different standards of proof, the directions that the Judge gave to the jury about the uncharged acts would have indicated to the jury that they needed to be satisfied as to the truth of the relevant evidence by L, and to be satisfied beyond reasonable doubt. The Judge referred on several occasions to the jury being satisfied that the appellant had committed one or more of the uncharged acts. He indicated early in his directions that when he used a term like that he meant proof beyond reasonable doubt.
So, even if Mr Vadasz is correct, the required directions were given.
It was not necessary for the Judge to direct the jury that they had to be satisfied beyond reasonable doubt of the course of conduct constituted by the uncharged acts. That was said to be an appropriate direction in R v Clifford [2004] SASC 104; (2004) 233 LSJS 157. The decision in Clifford has been regarded as an exceptional case, because of the difficulty in that case of particularising the offending conduct: see R v IK at [76] Doyle CJ, Perry J at [125]-[129], and Vanstone J (doubting the correctness of the decision) at [151]-[152].
It has been accepted in other cases that evidence of uncharged acts, evidence of the kind and quality led here, and for the purpose relied upon here, need not support a conclusion beyond reasonable doubt before it can be used. But the safer course is for the judge to tell the jury that they should be satisfied of the truth of the evidence, or something like that, even though that will suggest to the jury that this means satisfaction beyond reasonable doubt: see Nieterink at [83]; R v Kostaras [2002] SASC 326; (2002) 222 LSJS 373 at [51] and R v Sciberras [2003] SASC 104; (2003) 226 LSJS 473 at [39]. That avoids introducing the complication of differing standards of proof.
For these reasons, the criticisms of the trial Judge’s directions cannot be sustained.
Conclusion
It follows that the appeal against conviction should be dismissed.
DEBELLE J: The evidence of the uncharged acts led in connection with the evidence on count 2 was admissible as evidence proving aspects of the relationship between the appellant and the complainant. It was also admissible to prove that the appellant had a form of sexual attraction for the complainant. I agree with the Chief Justice that the appellant’s challenge to the admissibility of that evidence must fail.
On the question of the adequacy of the trial judge’s direction on the uncharged acts, I refer to my reasons in R v M, RB [2007] SASC 207. I will not repeat them. It is sufficient to note that, for the reasons there stated, it is my view that where evidence of uncharged acts consists of allegations of repeated sexual misconduct which is so intertwined with the charged acts, the trial judge must direct the jury that they must be satisfied that the uncharged acts have been proved beyond reasonable doubt. In the particular circumstances of this case, it would have been sufficient if the jury was satisfied beyond reasonable doubt that the appellant had a sexual attraction for the complainant.
The trial judge gave a direction as to the use which could not be made of the evidence of the uncharged acts. He then directed the jury as to the use which could be made of that evidence in these terms:
That does not mean that the evidence of the uncharged acts is irrelevant. The evidence is relevant. On the prosecution case, the uncharged acts show the nature of the relationship which existed between the accused and [L] during the four years leading up to the feed shed incident, which is the subject of the second and third counts.
Without that evidence – without the evidence relating to the uncharged acts – the circumstances of the feed shed incident might appear quite artificial or unrealistic. It would have appeared that after committing the first offence the accused – on the Crown case – did not sexually interfere with [L] for another four years, though she attended his home on a daily basis.
Putting it another way, it would have looked as if the feed shed incident had happened out of the blue, so to speak.
So that is the permissible use to be made of the uncharged acts, ladies and gentlemen. The evidence is relevant to put the charged offences, and in particular counts 2 and 3, in their proper context, but that is the only legitimate use to be made of this evidence.
I repeat, it would be wrong for you to reason – and you must not reason – that the accused must be guilty of the charged acts simply because you happen to be satisfied that he committed one or more of the uncharged acts.
This part of the direction contained no reference of any kind to the standard of proof of the uncharged acts. The judge did not even adopt the formula suggested in R v Nieterink (1999) 76 SASR 56 at [83] by Doyle CJ:
The jury had to be directed clearly not to act upon the evidence unless satisfied of its truth. It may be that to the extent that the evidence of uncharged acts were circumstantial evidence explaining R’s conduct, and the circumstances of the offences, proof beyond reasonable doubt was not required. But if the evidence was used as proof of a sexual attraction on the part of the appellant towards R, involving the commission of criminal acts, it seems to me that it might have formed an indispensable link in reasoning to guilt, and for that reason would have to be established beyond reasonable doubt; cf R v Ball and Gipp (at 133-134) per McHugh and Hayne JJ. My view is that to avoid confusing the jury, by referring to different standards of proof, the jury should have been told not to act upon the evidence of uncharged acts unless satisfied that those acts were proved, even though, in the light of the judge’s general directions to the jury, that would convey to the jury that what was required was proof beyond reasonable doubt.
The judge began by explaining the reason why the prosecution relied on that evidence. However, there was nothing to remind the jury that the uncharged acts were disputed. Indeed, the penultimate paragraph came perilously close to being an endorsement of the prosecution case. The use of the word “satisfied” in the last paragraph of that passage did not amount to a direction that the jury should not act on the uncharged acts unless they were satisfied that they had occurred.
In this case, the uncharged acts were so intertwined with the charged acts that it was necessary for a clear and unambiguous direction as to the standard of proof required in respect of the uncharged acts. The issue in this appeal does not turn on whether the uncharged acts must be established beyond reasonable doubt. The simple fact is that the judge failed to give any direction on the proper use of the evidence of the uncharged acts.
In the closing stages of his direction the judge gave a Longman warning which, among other things, identified the prejudice to the accused by reason of the delay in the complainant reporting the alleged offending. The judge concluded that part of the direction in these terms:
In light of all the matters that I have just mentioned to you it is necessary for me to give you a warning in this case. The warning is this; you should scrutinise [L’s] evidence with great care. I warn you that it would be dangerous to act upon that evidence unless, bearing in mind the warning that I have just given you, you are completely satisfied of its truth and accuracy.
I want to be clear about this; I am not saying you cannot convict the accused on [L’s] evidence, but it would be dangerous for you to act upon that evidence unless, bearing in mind the warning I have given, you are completely satisfied of its truth and accuracy.
That concludes my summing up. I remind you of the burden of proof and the requirement that the prosecution must prove its case beyond a reasonable doubt in respect of the charges. If you entertain a reasonable doubt about the guilt of the accused he must be given the benefit of that doubt and found not guilty. On the other hand, if you are satisfied beyond reasonable doubt of his guilt then it is your duty to say so.
Notwithstanding the clear and firm terms on which that warning was expressed, it does not overcome the absence of any direction as to the standard of proof of the uncharged acts. It was given a good deal later than the direction on the use to be made of the evidence of the uncharged acts. It does not cure the defects of the earlier direction concerning the evidence of the uncharged acts.
For these reasons I would allow the appeal and order a new trial.
LAYTON J: I consider the appeal against conviction should be dismissed and I agree with the reasoning of the Chief Justice.