R v Pearce, Pearce & Dodson - [2006] SADC 22

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v PEARCE, PEARCE & DODSON
Reasons for Ruling of His Honour Judge Clayton
10 March 2006
CRIMINAL LAW - EVIDENCE
SEVERANCE
Counts 1-7 allege offences against first accused alone - counts 8-11 allege offences against first and second accused jointly - counts 12 and 13 allege offences against first and third accused jointly - all charges allege sexual offending against daughters of the first accused.
HELD: Applications by second and third accused for separate trials and severance refused on the basis that evidence of the father's conduct shows an "underlying unity" between the alleged offences and explains the circumstances in which the alleged offences against the second and third accused could take place and the complainants acquiesced and never complained.
Criminal Law Consolidation Act 1935 s278, referred to.
R v Tracey & Ors (No 1) [2005] SASC 355; R v Demirok (1976) VR 244, applied.
R v Patsalis & Spathis (1999) 107 A Crim R 432; R v Middis NSWSC, Hunt J, 27 March 1991 (unreported); R v Hogan & Ors (1990) 159 LSJS 297 at 306; R v Bunting & Ors (No 3) (2003) 230 LSJS 410 at 462; R v Clothier & Williams (2001) 122 A Crim R 353; R v Trotter & Ors (1992) 58 SASR 223; R v Harbach (1973) 6 SASR 427 at 432; R v Collie, Krantz & Lovegrove (1991) 56 SASR 302; R v Grondkowski [1946] KB 369; R v Flaherty (1968) 3 NSWR 734, per Asprey J at 741; R v Glover (1987) 46 SASR 310; R v Liddy (2002) 81 SASR 22; R v Darby (1982) 148 CLR 668, considered.

R v PEARCE, PEARCE & DODSON
[2006] SADC 22
Applications for severance of counts and separate trials

The accused, WCEP, is the father of three daughters, L, J and M, born in 1961, 1962 and 1963 respectively.
In count 1 of the Information WCEP is charged with carnal knowledge of the eldest daughter, L, between 12 March 1967 and 12 March 1969 when L was aged 6 or 7 years. Count 2 alleges that WCEP indecently assaulted L between 12 March 1974 and 12 March 1967 when L was aged 13 or 14 years. Count 3 alleges that WCEP indecently assaulted M between 8 September 1973 and 8 September 1975 when M was aged 10 or 11 years. Count 4 alleges incest with L in 1988. Count 5 alleges incest with J in 1987. Count 6 alleges incest with J in 1988. Count 7 alleges incest with M between 1 January 1988 and 8 September 1989.
The eighth, ninth, tenth and eleventh counts allege four charges against WCEP and LWJP jointly. Count 8 alleges that WCEP and LWJP had carnal knowledge of L between 12 March 1974 and 12 March 1975 when L was aged about 13 years. Count 9 alleges that WCEP and LWJP indecently assaulted J between 1 January 1975 and 9 December 1976 when J was aged 13 or 14 years. Count 10 alleges that WCEP and LWJP had carnal knowledge of J between 1 January 1975 and 9 December 1976 when J was aged 13 or 14 years. Count 11 alleges that WCEP and LWJP had unlawful sexual intercourse with M between 8 September 1977 and 8 September 1979 when M was aged 14 or 15 years.
The twelfth and thirteenth counts allege two charges against WCEP and AGD jointly. Count 12 alleges that WCEP and AGD had carnal knowledge of L between 12 March 1975 and 12 March 1976 when L was aged about 14 years. Finally the thirteenth count alleges that WCEP and AGD had unlawful sexual intercourse with M between 8 September 1979 and 8 September 1980 when M was aged about 16 years.
In the case of AGD it is alleged that he had carnal knowledge of the daughter, L, in 1975 and unlawful sexual intercourse with the daughter, M, being an act of fellatio, in 1979 to 1980. It is alleged that the father, WCEP, was present on both occasions.
In the case of LWJP it is alleged that he had carnal knowledge of the daughter, L, being penile penetration of the vagina by LWJP while WCEP was present, that he indecently assaulted the daughter, J, who performed an act of fellatio upon LWJP with WCEP present and encouraging the act, that he had carnal knowledge of J, being penile penetration of the vagina by LWJP with WCEP present and facilitating penetration. Finally, against LWJP it is alleged that he had unlawful sexual intercourse with the daughter, M, whilst WCEP was present.
The evidence against WCEP alone alleges in count 1 carnal knowledge of L being penile penetration of the vagina; in count 2, indecent assault being penetration of the vagina by a dog’s penis; in count 3, indecent assault being attempted penetration of the vagina by a dog’s penis; in count 4, incest; in count 5, incest; in count 6, incest, and in count 7, incest.
As against WCEP the Crown also relies upon many uncharged acts which establish the relationship which WCEP had with each of his daughters and the control he had over them. It is said those matters are relevant to the circumstances in which all of the offending took place and to the fact that no complaint was raised by any of the daughters at the time of the offending.
AGD has applied for orders that counts 12 and 13 be severed and tried separately from the remainder of the Information and that AGD be tried separately from the accused, WCEP. His counsel argued that the counts with which AGD is charged do not form a series with the other counts alleged against WCEP. It was argued that for there to be a nexus more is required than that the offences be legally the same or similar in character and that there must be a sufficient correlation between the alleged offences to enable them to be described as a series. If the offences do constitute a series the court has a discretion under section 278(2) to sever.
Counsel put his client’s application on the basis that his client was going to be tarred with WCEP’s brush. Counsel argued that the case against his client was far weaker than the case against WCEP. He did not accept that the two offences constitute a series. Counsel argued that in a joint trial complicated jury directions would be required.
LWJP has also sought an order that he be tried separately from the other two accused. The grounds which are stated in his Form 9 Notice assert that WCEP is charged with offences committed between 1967 and 1987 when the alleged victims were between 6 and 27 years of age, that similar fact evidence is alleged against WCEP over a period from the 1960s to 1988 and the alleged offending by WCEP spans a 22-year period of ongoing regular habitual conduct involving fellatio, penile-vaginal sexual intercourse and vagina penetration by animals. The grounds assert that “there are virtually tens of hundreds of incidents alleged”. LWJP is charged with four offences on three occasions over five years.
In the particulars in the Rule 9 Notice LWJP admits that he had sex with each of the daughters of WCEP, but says the offences occurred over a much shorter period than the prosecution alleges.
The grounds state that LWJP relies on the defence of duress. He claims that throughout his childhood he was the victim of extreme abuse by a drunken father and that he was bullied at school. He claims his sexual contact with the three alleged victims was initiated and directed by WCEP who manipulated and threatened to tell the father of LWJP if LWJP did not do what WCEP told him. LWJP believed that his father would beat him to the point of injury or death if he found out. It is claimed that LWJP was a particularly vulnerable person because of his extensive childhood abuse and bullying.
The grounds further state that the declarations of the victims support that WCEP directed LWJP in the sexual assaults and one victim tells of how her father “guided” the penis of LWJP into her vagina because LWJP “wasn’t getting it right or something”.
The grounds also refer to the fact that the evidence that the prosecution can use against WCEP shows abuse by him on his three daughters over a long period of time and state there is a large body of similar fact evidence that the prosecution will lead to establish that WCEP was in the habit of having sex with his daughters on a repetitive basis over a very long time. The grounds state that the prosecution may be entitled to invite the jury to reason by way of the propensity of WCEP to have sex with his daughters. It is said that line of reasoning is not available in the case against LWJP, and that the jury would have difficulty in isolating that line of reasoning and limiting it to WCEP if both men were tried together. The grounds state that the difficulty of avoiding this reasoning of guilt by association or propensity is so prejudicial to LWJP that it could not be cured by a warning to the jury and could only be avoided if there are separate trials.
In the oral argument counsel referred to the particulars in the Rule 9 Notice. She said LWJP admitted that he had sex with each of the complainants once after June 1975. She said that the reference to the defence of duress in the particulars was incorrect and that there should have been a reference to the “innocent agent defence”.
The prosecution argued for a single joint trial.
The desire for a single joint trial is easy to understand. There are many cases which refer to the desirability of a joint trial where different accused are jointly charged. The circumstance which gives rise to the applications in this case is that on the trial of WCEP evidence of all of the offences and evidence of the uncharged acts will be admissible. The question is whether that militates against the desirability of a joint trial.
Counsel referred me to R v Tracey & Ors (No 1)[1] where Nyland J referred to authorities which discussed the circumstances in which it would be appropriate to order a separate trial. Her Honour referred to R v Middis[2], where Hunt J said:
Briefly, the relevant principles are that:
1.    where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and
2.    where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and
3.    where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.
[1] [2005] SASC 355
[2] NSWSC, Hunt J, 27 March 1991 (unreported)
In R v Patsalis & Spathis[3] Kirby J endorsed the principles summarised by Hunt J, but also said that the formulation by Hunt J in Middis did not state exhaustively the circumstances in which it would be appropriate to order a separate trial. Kirby J said (at 435):
The touchstone must, of necessity, remain general. Is there a risk of positive injustice to the accused were he or she to stand trial jointly with a co-accused?
And (at 434):
There is a rule, and a proviso to that rule. It is desirable, in the ordinary course, that all persons said to have been concerned with the one crime should be dealt with in the one trial. That rule is subject to the proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered (Oliver (1984) 57 ALR 543).
[3] (1999) 107 A Crim R 432
Section 278(1) of the Criminal Law Consolidation Act 1935 permits the joinder of charges for two or more offences in the same Information if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character. Subsection (2) provides that where 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 it is desirable for any other reason to direct that an accused person should be tried separately, the court may order a separate trial of any count or counts.
The joinder of the three separate accused in one Information is not authorised by section 278, but depends upon common law principles. See R v Hogan & Ors[4]; R v Bunting & Ors (No 3)[5]; R v Clothier & Williams[6]; R v Tracey & Ors (No 1) (supra) paragraphs 24 to 26 and R v Trotter & Ors[7].
[4] (1990) 159 LSJS 297 at 306
[5] (2003) 230 LSJS 410 at 462
[6] (2001) 122 A Crim R 353
[7] (1992) 58 SASR 223
The present applications are concerned more with the joinder on one Information of the charges against different accused than with section 278 and the joinder on one Information of separate charges against the same accused.
So far as WCEP is concerned I find that all of the alleged counts form part of a series of offences of the same or a similar character and can be properly joined pursuant to section 278(1). The joinder of the accused LWJP and AGD is not governed by the section, but by common law principles. WCEP has made no application to sever.
So far as AGD is concerned, I find that the two offences alleged against him form part of a series and so far as LWJP is concerned I find that the four offences alleged against him form part of a series of offences of the same or a similar character. Section 278(1) contemplates that “charges for two or more offences” may form a series or part of a series.
Section 278(2) is directed at the possibility of prejudice or embarrassment by reason of the fact that an accused is charged with more than one offence in the same Information and whether “for any other reason it is desirable to direct that an accused person should be tried separately for any one or more of the offences charged in an Information”.
The alleged prejudice to the accused AGD and LWJP does not arise by reason of the fact that they are charged with four offences and two offences respectively in the same Information, but because the Information includes the charges against WCEP and the charges against each other. The question for me to consider is whether there is some other reason why it is desirable to direct that each of LWJP and WCEP should be tried separately for any one or more of the offences charged in the Information. Section 278(2) does not relate to the separation of the charges against different accused.
Where accused are charged with committing a crime jointly prima facie there should be a joint trial. R v Harbach[8]; R v Collie, Krantz & Lovegrove[9].
[8] (1973) 6 SASR 427 at 432
[9] (1991) 56 SASR 302
In R v Harbach the Full Court was concerned with the circumstances in which a Court of Appeal should interfere with the exercise of a discretion against separate trials. Whilst acknowledging that on appeal it was an ex post facto test, because the application is necessarily made at the beginning of the trial, the court said that one of the tests to be applied on appeal was whether improper prejudice had been created against an accused. Reference was made to R vGrondkowski[10] and R v Flaherty[11]. In Grondkowski, which was approved in Flaherty, Lord Goddard said:
The real test, after all, which must be applied by a Court of Criminal Appeal on a matter which is essentially one of discretion is, has the exercise of the discretion resulted in a miscarriage of justice? If improper prejudice has been created whether by a separate or by a joint trial - for as we showed at an earlier stage of this judgment prejudice might be caused to one prisoner by ordering a separate trial on the application of the other - this court will interfere but not otherwise.
[10] [1946] KB 369
[11] (1968) 3 NSWR 734, per Asprey J at 741
In R v Glover[12] King CJ said (at 312) that unless circumstances surrounding the case for the prosecution would be so prejudicial to a particular accused that a separate trial is imperative, participants in the same incident ought to be tried together. The Chief Justice also referred to the requirement that courts be sensitive not only to the interests of accused persons, but also to the interests of alleged victims of sexual crimes who should not be called upon to give evidence more often than is absolutely necessary to avoid a miscarriage of justice.
[12] (1987) 46 SASR 310
In R v Liddy[13] the Court of Criminal Appeal was concerned with the joinder of charges against a single accused. In that case evidence of charged and uncharged acts by the accused was held admissible to show the true nature of the relationship between the accused and each of the complainants as well as other features of the background against which the charged acts were alleged to have been committed. The evidence in support of each act was admissible in relation to each other count even though the counts related to different victims. It was held that if the jury concluded that the conduct in relation to a particular charge had been proven beyond reasonable doubt that proven fact became relevant as circumstantial evidence on the other counts, provided that there was no rational view of the evidence that was consistent with the innocence of the appellant of the charge being considered. Mullighan J said (paragraph 67) that the learned trial judge had correctly identified the position taken by the prosecution in that:
She said that the prosecution did not rely on “similarities between the acts” which were the subject of the specific counts in order to establish cross admissibility but that the evidence disclosed a “system” or “underlying unity” in the sense that each of the offences was committed in a specific context.
[13] (2002) 81 SASR 22
He held (paragraph 102) that the learned trial judge correctly categorised all of the evidence as demonstrating “unusual feature”, “underlying unity”, “system” or “pattern” and held (paragraph 106) that the evidence was cross admissible.
In R v Collie, Krantz & Lovegrove Cox J (at 321) referred to the possibility that what is likely to matter is that evidence admissible against one accused, but not against the others, might have a tendency to prejudice the others. His Honour said that R v Darby[14] is a reminder that there can be a marked quantative imbalance in the Crown cases against different co accused, whether there is also prejudicial evidence of the more obvious kind or not is one of the matters to be taken into account. He said that occasionally, but not often, it may be decisive. Cox J said “always it will be a matter in the end of weighing the competing considerations and deciding what the interests of justice require”. That principle is much easier to state than to apply.
[14] (1982) 148 CLR 668
The complaint of the applicants is that one consequence of introducing evidence of uncharged acts against WCEP, which involve a course of conduct over a period of over more than 20 years, will have the effect of introducing that evidence in the trial of each of the other two accused.
Mr Stokes submitted that the case against AGD is both weaker and “quantatively miniscule” compared with the case against WCEP. He points out that his client was only involved in two of the alleged events. He does not want his client to be “tarred with William Pearce’s brush”. The implication in the submission of Mr Stokes is that the conduct alleged against his client is relatively innocuous when compared with the complaints made against WCEP. Whether that is correct or not the offences alleged against AGD occurred on two occasions some time apart and involved two of the three daughters. Standing alone, they are serious allegations. However, I accept that by reason of both its nature and its volume the evidence against WCEP may make it difficult for the jury to focus on the evidence which is properly admissible against the applicants.

In R v Demirok[15] the Full Court of the Supreme Court of Victoria allowed an appeal and quashed convictions on the basis that separate trials had not been ordered. The court found that the discretion of the trial judge had been correctly exercised in the light of the circumstances which then existed but there was a miscarriage of justice because of events which developed during the course of the trial. The court said that matters of public interest must be considered. Those matters included the court time spent and the public expense incurred if more than one trial was conducted, the possibility of inconsistent verdicts, the desirability that the same jury should resolve differences between the accounts of accused persons, and the fact that it is the policy of the law to reach finality as expeditiously as possible and the convenience of witnesses. The court said:
Essentially, an accused man is entitled to a trial conducted in accordance with the relevant rules, the objects of which include ensuring that the evidence tendered against him is admissible evidence and that he is not exposed to prejudice by the introduction against him of material which is irrelevant or, in some situations, only marginally relevant. In very rare cases, of which we think this is one, although the trial has been correctly conducted, the result may nevertheless have been to expose the accused man to a conviction influenced by material which was both inadmissible and highly prejudicial. In such a situation, we think that it is not satisfactory to say that, the rules governing trials having been observed, there has been no miscarriage of justice. To do so is to elevate the rules above the end which they are designed to produce. The miscarriage lies in the fact that, despite the correct application of the various rules, the trial has not been of the kind which those rules are intended to produce.
[15] [1976] VR 244
It is difficult to know whether some of the reasons put forward in support of a joint trial are illusory. One could never be certain whether a single trial would be in the interests of the victims or whether a single trial would give rise to administrative efficiencies. A joint trial of thirteen counts involving three separate accused, three separate victims and covering a period in excess of twenty years is likely to create problems of its own.
I accept that evidence of all the charges and the uncharged acts are properly admissible against WCEP. That evidence would be given at a joint trial because it is admissible against WCEP. There could also be a question of whether that evidence was properly admissible against each of the other two accused.
I accept that the evidence of the uncharged acts and the evidence of the charges against the other accused could be prejudicial so far as LWJP and AGD are concerned. That evidence may also have the effect of distracting the jury from the issues in the respective cases against LWJP and AGD. The evidence of the actual conduct of LWJP and AGD will form a very small part of the total body of evidence.
I must consider the respective applications of LWJP and AGD separately.
Mr Stokes argued that because the case against AGD was very thin the possibility of prejudice is greater.
In the case of LWJP he has admitted an act of intercourse with each of the three complainants. I refrain from speculating as to what use will be made of that admission at the trial. I also refrain from speculating on the legal basis or the merit of the defence of “innocent agent” to which counsel for LWJP has referred. It was not appropriate to invite counsel for the accused to support any defence on the Rule 9 application, but there is a possibility that the “innocent agent” defence may give rise to some dispute between LWJP and WCEP. Counsel for LWJP simply disputed that the introduction of the evidence would be prejudicial.
In the case of LWJP the foreshadowed defence of “innocent agent” would be a reason for a joint trial.
The Crown relies upon the desirability of a single trier of fact resolving any conflicting accounts between the accused. In the case of LWJP, given his admissions, any conflict is likely to focus on the role played by WCEP in the offending; but the full extent of the “innocent agent” defence remains to be disclosed.
The Crown relies on the fact that the three daughters of WCEP are close in age and there was a programme of sexual activity by WCEP throughout their childhood. That sexual activity was carried out in secret and in circumstances controlled by WCEP. It was submitted that in evaluating the evidence of the victims, the relationship between WCEP and his daughters and the family dynamic as a whole needs to be considered. In particular, the Crown alleges that WCEP controlled all aspects of his daughters lives and that evidence of that nature explains how the other two accused were introduced and the victims acquiesced when they were required to have sexual intercourse with the other men. Counsel submitted that the evolution of the relationship and the particular nature of the relationship are intertwined with the offending and inextricably linked. It is said that those matters also explain the way in which the complainants behaved and their failure to complain.
As I have mentioned, I accept that the evidence against WCEP has the potential to be prejudicial to the other accused. However, that evidence is relevant to explain the background against which all of the offending came about and the reasons why the victims submitted and never complained.
The Crown also submitted that the father and each of the other accused were acting in concert. Counsel submitted that it would be an absurdity for liability to be considered by separate juries when the behaviour of the men is inextricably linked. If the individual cases against LWJP and AGD were heard separately the jury would only have a rather barren explanation of the circumstances in which the offending occurred. There would be no explanation for the lack of complaints at the time of the offending.
There are competing considerations which I am required to take into account. I think that notwithstanding the potential for prejudice, the evidence of the conduct of WCEP is admissible against LWJP and AGD because their alleged offending was only possible as a consequence of the relationship of the daughters with WCEP. The offending involved LWJP and AGD taking advantage of the influence that WCEP had over his daughters. Had they not done that the offences alleged against them could never have occurred in the way that they did.
Put another way, there is a real connection between the alleged offending of LWJP and AGD and the evidence against WCEP. I find that the relationship between WCEP and his daughters is itself an objective and relevant fact in the cases against LWJP and AGD.
A significant feature of the counts against LWJP and AGD is that the alleged offences occurred in the presence of WCEP, the complainants’ father. I find that circumstance gives rise to an “underlying unity” in the sense discussed in Liddy.
Although the applications are made in the context of joint charges against different accused, rather than the joinder of different charges against the same accused as was the case in Liddy, the evidence which is the subject of the applications demonstrates the nature of the relationship between each of AGD and LWJP and WCEP and each of the daughters of WCEP and other features of the background against which the charged acts are alleged to have been committed. Also, as in Liddy, the evidence is relevant as circumstantial evidence to show how the accused could behave as they did with each of the complainants on various occasions without opposition or complaint. I find those matters alone override the potential for prejudice. They are common to both applications.
Counsel for AGD submitted that one reason for severance of the charges was the complexity of the directions that the trial judge would be required to give. Obviously the trial judge will be required to give quite specific directions. However, there is no reason why an appropriate direction will not be given and comprehended by the jury.
I accept that it is in the interests of the victims that they only be required to give evidence once. In this case, that consideration is enhanced by the time that has elapsed since the alleged offending took place and the embarrassing and degrading nature of the evidence that the complainants will be required to give.
While the criteria outlined in Demirok support a decision not to order separate trials, those matters by themselves would not outweigh the possibility of prejudice in this case. There are many competing factors. I do not underestimate the prejudicial effect of the evidence in question. However, after taking all considerations into account, in particular the “underlying unity” and the fact that the relationship between the father and the complainants is relevant to explain how the alleged offences were able to occur and the fact that the complainants acquiesced and made no complaint, I dismiss the applications.