R v Place

Case [2015] SASCFC 163

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PLACE

[2015] SASCFC 163

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Lovell)

11 November 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

Appeal against conviction.  The appellant was the gymnastics coach of EK, the complainant. He was charged with, and convicted by a jury of, four counts of indecently assaulting EK. The offending was alleged to have occurred from early 2000 to late 2001, when EK was aged between a little less than eight and nine and a half years. EK first gave a statement to police on 19 December 2010 when aged 17 years, and she was 23 years old at the trial.

EK gave evidence that she first complained about the appellant’s conduct to her then boyfriend Mr Bottomley when she was about 17 years old. Mr Bottomley gave greater detail of the conversation in evidence. The appellant contended that this evidence should not have been admitted as it did not sufficiently refer to the charges before the Court. In the alternative, he contended that it should have been excluded in the exercise of the Judge’s discretion. The respondent submitted that an exclusionary discretion was not available.

The appellant also contended that evidence of uncharged similar conduct should not have been admitted, and that the verdicts were unsafe and unsatisfactory.

Discussion of the admissibility of complaint evidence pursuant to s 34M Evidence Act 1929.

Held per curiam, dismissing the appeal:

1. Section 34M complaint evidence must be seen to refer to a charge before the court, but it is not necessary for admissibility under s 34M(3) that the details of the complaint be entirely consistent with the offence charged or that the complaint refer to specific details of the offending comprised by the charge.

2. The complainant’s conversation with Mr Bottomley constituted a definite complaint which sufficiently encompassed the conduct of indecent touching alleged. The Judge correctly directed the jury that they had to be satisfied that the complaint did refer to a charged offence. EK’s conversation with Mr Bottomley took place well after the end of the period during which the offending was said to have occurred and there was therefore no need for a differentiation between the counts to which the complaint was, and was not, referable as there had been in The Queen v S, DD (2010) 109 SASR 46. The complaint to Mr Bottomley was admissible as a matter of…

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R v Place [2015] SASCFC 163
Case
[2015] SASCFC 163
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CaseChat Overview and Summary

The appeal concerned the admissibility of certain evidence in a criminal trial. The appellant, R v Place, was charged with indecent assault. The complainant, EK, gave evidence of the alleged assaults and also of a complaint she made to her then-boyfriend, Mr Jarrod Bottomley, when she was approximately 17 years old. The prosecution also sought to admit evidence of other uncharged acts of similar conduct by the appellant.

The primary legal issues before the court were whether the evidence of the complaint made by EK to Mr Bottomley was admissible, and whether evidence of other uncharged acts of indecent touching by the appellant should have been admitted at trial. The court was required to consider the application of section 34M of the Evidence Act 1929 (SA) regarding complaint evidence and the principles governing the admissibility of propensity or tendency evidence, including evidence of uncharged acts.

The court held that complaint evidence is admissible under section 34M of the Evidence Act 1929 (SA) if it refers to the sexual offence charged, serving to buttress the complainant's evidence by demonstrating consistency. While the complaint need not detail the specific occasion charged, there must be an identifiable link between the complaint and the offence. In this case, despite some inconsistencies between EK's recollection and Mr Bottomley's evidence regarding the complaint, the court found that the complaint evidence was not outweighed by its prejudicial effect and therefore should not have been excluded. Regarding the uncharged acts, the court determined that evidence of approximately ten occasions of similar conduct, including the charged offences, was admissible on counts 2 to 4. This evidence was admitted on the basis that it formed part of a wider course of conduct by the appellant, which explained the complainant's uncertainty about the precise order of events and her delay in complaining. The court noted that the uncharged acts and charged offences relied on the complainant's evidence equally, and the jury was properly directed on the distinction between the counts.

The appeal was dismissed. The court found that the trial judge had correctly admitted the complaint evidence and the evidence of uncharged acts, as these were relevant to the credibility of the complainant and the explanation of her conduct within the context of the alleged offending.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

EK gave evidence that she first complained about conduct by the appellant during a conversation with her then boyfriend, Mr Jarrod Bottomley, when she was about 17 years old. EK could give only sketchy evidence of that conversation but Mr Bottomley gave evidence that there was such a conversation and that it took place in about October of 2010. He was able to give greater detail of the content of that conversation than EK.[1] The evidence relevant to this ground of appeal is as follows.[1] A complainee can give evidence of a complaint even though, by the time of trial, the complainant cannot recall making that complaint; the factual background to such memory loss may be the effect of intoxication or the trauma of the alleged incident itself upon the complainant. See for examples Breen v The Queen (1994) 180 CLR 233; The Queen v RH [2004] VSCA 231, [50] (Gillard J); R v England (2013) 116 SASR 569, [32].The evidence of EK as to her complaint to Mr Bottomley EK gave the following evidence as to her conversation with Mr Bottomley:QOnce you finished gymnastics, immediately after you finished, did you tell anyone about what had been happening to you?A No.Q Why not?AIt had happened so many times by then I thought I would get in trouble and I had waited too long.Q Did you eventually tell someone about what had happened to you?A Yes.Q Who was the first person you told about what had happened to you?A I told my first boyfriend, Jarrod Bottomley, when I was 17 or so.QHow long had you been in a relationship with Mr Bottomley for when you told him what had happened to you?A About a year.Q Are you still in a relationship with him, or not?A No.Q When did that finish?A About two years ago.Q Where were you when you had this conversation with him?A In Jarrod’s room.Q Do you recall the precise words that you said to him?ANo. It was very hard for me to say it, because I had to say it out loud and I didn’t know how to word it properly. I just remember I cried a lot and it took me a long time to say what happened.Q Do you remember the effect of what you told him? What did you tell him about?AI didn’t tell him like each time, I just said, like, that I had been indecently assaulted when I was young and it was starting to get to me. The evidence of Mr Bottomley was as follows: Q How old are you now?A 23.Q Going back to when you were 16, did you have a girlfriend by the name of E?A Yes, I did.Q EK?A Yep.Q When did you first start your relationship with EK or how old were you?A I was - I first met her when I was 15 and I asked her out in 2006.Q That’s when the relationship started?A Started, yep.Q How long did you go out with her for?A Five to six years.Q What work are you currently doing?A I am a carpenter by trade.Q Carpenter?A Yep.QIn the period of time you were seeing EK was there an occasion she told you about something that happened in her childhood?A Yes, there was.Q I want to ask you about that. How old were you when she told you about that?A I was 16.Q Do you recall what year it was?A I was actually 17, it was 2010.Q Do you remember what time of the year it was?A Around about October.Q Where were you when you had this conversation with her?A I was at her home residence in her bedroom.Q What did she tell you about; what was the topic? …HIS HONOURQJust tell us what was said. It may be necessary for you to fill in some gaps, but you tell us what was said.AYep, alright. She basically just said that she trusted me and she then went on to tell me that, when she was younger, she used to do gymnastics and, yeah, she stayed at this bloke’s house a couple of times and he inappropriately touched her, so - .EXAMINATIONQ Did she say who had inappropriately touched her?A She did at the time.Q Did she say what his relationship was to her or his role was?A Yeah, he was her coachQ Did she tell you his name at the time?A She did.Q Can you remember that now or not?A No, I cannotQDo you remember the precise words that she used in the course of this conversation?A Yeah.Q Did she say how many times she’d stayed at his house?A Not exactly, but multiple.Q Did she say how many times she had been inappropriately touched?A She did, and it was a few.Q Did she give you any reason for why she’d been staying at her coach’s house?A Yeah, for early morning trainings.Q Did she say whether or not anyone else had been and stayed at his house?A Just her sister.QDid she say anything about what other kinds of activities they would do when she stayed at his house?A Yeah, watch movies and that’s basically all I can remember.Q Did she say whereabouts she had been touched?A Yeah.Q Where did she say she had been touched?A On her breasts and other female parts.Q Did she say what she meant by ‘other female parts’?A Yes, downstairs, in the undies.Q When you had this conversation with her, what was her demeanour like?AShe was very upset, frustrated, distraught and just crying like I’ve never seen before.Q How long did the conversation take?A 20 to half an hour.Q Was there anyone else in the house while the conversation was taking place?A No.CROSS EXAMINATION BY MRS SHAWQ Did you give a statement to the police about this matter on 31 December 2010?A Yes, I did.Q You’ve had a read of that to refresh your memory?A Yes, I did.QIs it correct that she told you this person owned or ran a dance studio in Hackham or something?A That is correct.QDid she tell you that she was staying at his house for early runs to gymnastics or something else in the morning?A That is correct.Q And that’s why she was staying there?A Yep.Q And she said to you that she was with her sister?A Yep.Q She made it plain her sister was there every time?A Yes.Q Correct?A Correct.Q And she told you that it happened a couple of times at his house?A Correct.Q She didn’t say ‘a few’, she said ‘a couple’?A Yep.Q When her sister was there?A Correct.Q Correct?A Yea.NO RE-EXAMINATIONSection 34M of the Evidence Act 1929

Decision

Reasons for decision

However, while such considerations may have real substance in the right case, in the present case it is apparent that the complainant could remember very little about the content of the complaint conversation with Mr Bottomley and that Mr Bottomley’ evidence does not establish a close match between that conversation and EK’s evidence in court; indeed, as noted above, there are positive inconsistencies evident. Thus while this particular contention may have high importance in some cases of long delay, it lacks particular substance in the factual circumstances in the present case. Conclusion as to the appropriate exercise of the exclusionary discretion here Having carefully considered the cumulative effect of the above considerations, we are not persuaded that the probative value of the complaint evidence upon the credibility of the complaint was outweighed by its prejudicial effect such that the evidence should have been excluded. Ground 2 of appeal is rejected.GROUND 1 OF APPEAL – THE UNCHARGED ACTS At trial, over defence objection, the prosecution led evidence that there were other occasions on which similar conduct of indecent touching occurred, with the total number of occasions (including the charged offences) amounting to a total of about ten. At trial, and on appeal, the appellant contended that the evidence of the other uncharged acts should not have been admitted. This complaint forms the subject of ground 1 of appeal. We consider that this evidence was admissible on counts 2 to 4 (but not on count 1 which related to “the first time” there was ever indecent touching),[67] upon the basis that the offences were committed in the context of a wider course of conduct by the appellant. That course of conduct tended to explain why the complainant was unsure as to the precise order and specifics of the four charged offences; on her evidence, the matter was complicated by the commission of the further offences. Further, the commission of the further uncharged acts formed a necessary part of the reasoning of the complainant in her explanation as to why she did not complain about the appellant’s conduct earlier: “It had happened so many times by then I thought I would get in trouble and I had waited too long.”[67] The Judge gave full directions to the jury concerning this distinction between count 1 and the other three counts and no complaint is made by the appellant in this regard. This was sufficient to make the evidence admissible here. The present case is quite unlike a case where there is independent evidence supporting the complainant’s evidence of the commission of an uncharged act but no independent evidence supporting the complainant’s evidence of the commission of the charged act, with a consequent risk of improper reasoning being adopted. Here, the charged counts and the uncharged acts all stood on exactly the same footing, all entirely relying on the word of the complainant with the appellant denying all of them. There was no basis upon which the jury could sequentially find that the appellant had committed uncharged acts and thence proceed to convict of the charged counts alleged acts and nor was it ever suggested that they could do so. The uncharged acts were simply an integral part of the complainant’s version of events which needed to be considered in a holistic way.

Ratio Decidendi

Legal Principle Established

It is, of course, necessary that s 34M complaint evidence must be seen to refer to a charge before the court. The whole rationale of common law “recent complaint evidence”, and now s 34M “complaint evidence”, is that it buttresses the evidence of the complainant concerning the offence(s) alleged against the accused person and it can only do so if it refers to that charge. Thus in The Queen v S, DD, Duggan J stated:[15][4] The complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referable to that offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. However, where a general complaint of sexual abuse is led in evidence for this purpose, it must be established that what was said encompasses the conduct alleged in that count.…[7] If the evidence was to be used to establish consistency in relation to particular counts, it was necessary for the trial judge to direct the attention of the jury to the question whether a link had been established between the complaint evidence and those counts. (Emphasis added)[15] (2010) 109 SASR 46, 49-50. In R v Usher, Kourakis CJ stated:[16][46] It remains an aspect of the common law rule that complaints about other incidents not the subject of a charge are inadmissible.[17] As I have observed, the use of complaint evidence is limited to enhancing the credibility of the complainant by showing a consistency between the conduct of the alleged victim in making the complaint of the offence, and her testimony of its commission.[18] That consistency can only lie in the disclosure of the offence charged, and not in a reference to a different offence.[47] In R v S,[19] the Queensland Court of Appeal held that evidence of a complaint made about an uncharged act in a trial of a number of particularised offences selected from many committed in the course of an unlawful sexual relationship was inadmissible hearsay. (Emphasis added)[16] (2014) 119 SASR 22, 32.[17] R v S (2002) 129 A Crim R 339, [21].[18] Kilby v The Queen (1973) 129 CLR 460.[19] (2002) 129 A Crim R 339. His Honour then turned to s 34M and stated:[20] [20] (2014) 119 SASR 22, 33.[49] On a proper construction of s 34M(3) of the Evidence Act the phrase “an initial complaint of an alleged sexual offence” corresponds with the subsequent phrase in the same subsection “a charge of the sexual offence”.[21] The complaint must therefore be of the sexual offence charged. Similarly, the “allegation” referred to in s 34M(4)(a)(i) of the Evidence Act is the allegation made by the charge and it is therefore as evidence of consistency between the complainant’s conduct and that charge that the complaint is admitted.[21] R v S, DD (2010) 109 SASR 46, [98] (Peek J).[50] Provided that the complaint is sufficiently general, it is not necessary for it to be admissible under s 34M(3) of the Evidence Act that the details of the complaint are entirely consistent with the offence charged.[22] Nor is it necessary that the complaint refer to the specific details of the offending comprised by the charge. However, there must be an identity between the two before it can be received. As Duggan J observed in R v S, DD, where a general complaint of sexual abuse is led in evidence, the terms of the complaint must be capable of encompassing the conduct alleged in the particular count or counts:[23] [22] R v El Rifai [2012] SASCFC 98, [132]-[134].[23] (2010) 109 SASR 46, [4].The complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referable to that offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. However, where a general complaint of sexual abuse is led in evidence for this purpose, it must be established that what was said encompasses the conduct alleged in that count.In R v Maiolo (No 2), Peek J (with whom Kourakis CJ and Stanley J agreed) observed of this passage:[24]There is no difference between the approach of Duggan J and myself in this regard and the result of the application of that approach in the present case is very clear. To adapt and apply the words of Duggan J to the present case, “the complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count because it cannot be seen to be referable to that offence”. As to this point, there is no discordance within any of the judgments of the Court of which I am aware. [Footnote omitted]The determination of the question, as to whether the complaint evidence is referable to the charge, and therefore admissible, will necessarily depend on the facts of the particular case.[25] In R v S, DD, Peek J postulated some circumstances in which a complaint would be inadmissible for lack of reference to the charged offence:[26]Such an argument may succeed where there is inconsistency between the complaint and the charge such as if a complaint includes words which make it clear that reference is being made to other and different sexual offending than that charged. As an example, a complaint in the year 2010 of sexual intercourse at Victor Harbor in the year 2000 could not be admissible under s 34M (that is, as complaint evidence) in relation to a charge of an offence against the same complainant but occurring at Adelaide in 2005. Similarly, a complaint constituting a specific and definite allegation of a precise type of sexual offending, say anal intercourse without consent, could not be admissible under s 34M in relation to a charge of oral intercourse. Further, a statement may be so vague that it does not constitute a “complaint of a sexual offence” on its face at all. For example, statements such as “my father upsets me” or “I hate my father” may, on the prosecution case, be made by a complainant because of sexual interference, and in response to it, but they simply do not satisfy a minimal objective standard of a “complaint of a sexual offence”.With respect, I agree with the observations made by his Honour, subject to the observations of Duggan J and Peek J about general complaints cited in [50] and [51] above. (Emphasis added)[24] (2013) 117 SASR 1, [25].[25] R v S, DD (2010) 109 SASR 46, at fn 30 (Peek J).[26] R v S, DD (2010) 109 SASR 46, at fn 30 (Peek J).