R v R, PA
[2019] SASCFC 19
•27 February 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Youth Court Appeal)
R v R, PA
[2019] SASCFC 19
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)
27 February 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The appellant appeals against his conviction by a judge sitting alone in the Youth Court on two counts of aggravated indecent assault contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA).
The conduct of which the appellant was convicted occurred over a period of two years between 10 September 1996 and 10 September 1998. The appellant was aged from 15 to 17 years during that period. The two complainants are sisters of the appellant. They were both under the age of 10 years at the time of the relevant events.
The appellant advances the following five grounds of appeal:
1. The appellant’s trial miscarried as a result of the wrongful admission of evidence from the complainants and other witnesses which was contrary to s 34M of the Evidence Act 1929 (SA).
1A. The learned trial Judge erred in finding that each of the complainants consistently maintained that they had never discussed the detail of the appellant’s actions, such finding adversely impacting upon an assessment of concoction or “infection”.
2. The appellant’s trial miscarried as a result of the failure of the learned trial Judge to adequately direct herself in accordance with s 34CB of the Evidence Act 1929 (SA).
3. The appellant’s trial miscarried as a consequence of prejudicial and inadmissible evidence being before the court.
4. The verdicts are unsafe, unreasonable and against the weight of the evidence.
Held, per Parker J (Kourakis CJ and Nicholson J agreeing), dismissing the appeal:
1. The possibility of concoction and contamination had to be excluded by the Crown in order for it to rely upon reasoning based upon the similarity of the account given by the several witnesses (at [50]).
2. While most of the complaint evidence was inadmissible under s 34M, the evidence was admissible and relevant in support of the similarity of account contention advanced by the prosecution (at [50]).
3. The Judge did not err by rejecting any suggestion of concoction or infection of the evidence of the complainants. That finding was entirely consistent with the complainants’ unequivocal evidence that they had not discussed the details of the appellant’s conduct (at [70]-[76]).
4. Because the Judge was sitting alone she was not required to warn herself about the forensic disadvantage suffered by the appellant (at [85]).
5. The warning given by the Judge adequately dealt with the matters referred to by Peek J in R v Maiolo (No 2) in respect of the forensic disadvantage to the appellant in challenging and responding to allegations made of incidents said to have occurred over 20 years ago (at [84]-[86]).
6. The question of forensic disadvantage caused by the passage of time was not relevant to the finding of the Judge that the appellant was not truthful in his evidence that he did not know the whereabouts of a SIM card for a mobile phone even though he had accessed it for the purposes of trial preparation (at [90]-[93]).
7. Discreditable conduct evidence does not ordinarily need to be proven beyond reasonable doubt (at [116]).
8. The leading of admissible evidence that is ultimately found not to be proven to the required standard does not have the effect of making that evidence inadmissible, nor does the receipt of that evidence at trial give rise to a miscarriage of justice (at [118]).
9. The alleged conduct referred to in count 1 was not physically impossible or inherently unlikely. The finding of fact made by the Judge was entirely consistent with the evidence. There was no miscarriage of justice (at [135]-[138]).
10. The alleged inconsistencies in the evidence of the complainants are not so significant as to raise any reasonable doubt as to the appellant’s guilt in respect of counts 1 and 3 (at [139]-[142]).
Criminal Law Consolidation Act 1935 (SA) s 56; Evidence Act 1929 (SA) ss 34CB, 34M, 34P, 71A; Young Offenders Act 1993 (SA) s 63C, referred to.
Hoch v The Queen (1988) 165 CLR 292; R v Maiolo (No 2) (2013) 117 SASR 1; R v Bauer (2018) (2018) 92 ALJR 846, applied.
R v Cassebohm (2011) 109 SASR 465; R v T, WA (2014) 118 SASR 382; R v Pedler (2017) 129 SASR 152; R v Bromley [2018] SASCFC 41; Standage v Tasmania [2017] TASCCA 23; R v Nguyen (2010) 242 CLR 491; Filippou v The Queen (2015) 256 CLR 47, considered.
R v R, PA
[2019] SASCFC 19Full Court: Kourakis CJ, Nicholson and Parker JJ
KOURAKIS CJ: I would dismiss the appeal for the reason given by Parker J.
NICHOLSON J: I would dismiss the appeal for the reasons given by Parker J.
PARKER J: The appellant appeals against his conviction by a judge sitting alone in the Youth Court on two counts of aggravated indecent assault contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). The appellant was charged on three counts but was acquitted on count 2.
The conduct of which the appellant was convicted occurred over a period of two years between 10 September 1996 and 10 September 1998. The appellant was aged from 15 to 17 years during that period. The two complainants are sisters of the appellant. They were both under the age of 10 years at the time of the relevant events.
Grounds of appeal
At the commencement of the appeal hearing the Court granted the appellant permission to amend his grounds of appeal. The grounds of appeal advanced are as follows:
1.The appellant’s trial miscarried as a result of the wrongful admission of evidence from the complainants and other witnesses which was contrary to s 34M of the Evidence Act 1929 (SA).
Particulars
1.1 Evidence of conversations between witnesses S and E (complainant), then J and K (complainant) and Ra and S (complainant) was inadmissible in that it did not meet the criteria for admission pursuant to s 34M of the Evidence Act.
2.The appellant’s trial miscarried as a result of the failure of the Learned Trial Judge to adequately direct herself in accordance with s 34CB of the Evidence Act 1929 (SA).
Particulars
2.1 The directions failed to identify the significant forensic disadvantage that existed in the circumstances of the case;
2.2 The directions failed to explain the nature of the forensic disadvantage and how that should be taken into account when scrutinising the evidence on each count.
2.3 The appellant’s inability to produce a SIM card was used in a manner adverse to the appellant, contrary to s 34CB of the Evidence Act;
2.4 The inability of the appellant’s wife to produce a SIM card was used in a manner adverse to the appellant, contrary to s 34CB of the Evidence Act.
3.The appellant’s trial miscarried as a consequence of prejudicial and inadmissible evidence being before the court.
Particulars
3.1 Evidence of alleged discreditable conduct involving sexual activity with children was received de bene esse, but subsequently ruled inadmissible by the Learned Trial Judge in the Reasons for Verdict.
3.2 Notwithstanding the evidence was inadmissible, it formed part of the case the appellant was required to meet at trial. The appellant’s forensic decisions, including whether to give and/or call evidence were made in the context of this inadmissible evidence.
3.3 The appellant was subjected to cross-examination upon inadmissible prejudicial evidence. This formed part of the assessment of his evidence (which was adverse) by the Learned Trial Judge.
4.The verdicts are unsafe, unreasonable and against the weight of the evidence.
Particulars
4.1 As to the complainant S, the evidence given of the actus reus of count 1 is such that no reasonable finder of fact could have found that the offence occurred as physically described, having regard to the clothing being worn by the complainant and mechanics of the incident described (TX 14-17, 38‑43).
4.2 There are inconsistencies in relation to the various versions of “complaint” evidence.
4.3 There is a multiplicity of inconsistencies on the prosecution case, such that no reasonable finder of fact could find any of the charges proved beyond reasonable doubt.
During the course of submissions the Court allowed the appellant seven days to make submissions in support of a proposed additional ground of appeal. The Court indicated that it would decide on the papers whether permission should be granted for this additional ground of appeal. The additional ground is as follows:
1A.The Learned Trial Judge erred in finding that each of the complainants consistently maintained that they had never discussed the detail of the Appellant’s actions, such finding adversely impacting upon an assessment of concoction or “infection”.
The grant of permission to pursue this additional ground does not prejudice the respondent. The proposed ground was dealt with by the parties in the course of submissions and has been the subject of further written submissions by the respondent. The additional ground is also closely linked to ground 1. I would grant permission to appeal on ground 1A.
Background
The appellant was born in 1981 and at the time of trial was aged 36 years. He is one of nine siblings, comprising three boys and six girls.
As the offences occurred when the appellant was a juvenile, his name cannot be published and the names of witnesses (who, leaving aside character witnesses, were all family members) cannot be published as that would tend to identify him and the victims.[1] Unfortunately, the initials used by the Judge and by the parties to the appeal were not always consistent. Accordingly, so as to reduce the possibility of confusion, I have referred to the witnesses as follows:
[1] See Young Offenders Act 1993 (SA) s 63C; Evidence Act 1929 (SA) s 71A(4).
·M - the appellant’s father.
·Ei - the appellant’s mother.
·Ja - the appellant’s sister born 1979.[2]
·A - the appellant’s brother born 1984.
·Ra - the appellant’s sister born 1986.
·S - the appellant’s sister born 1989.
·K - the appellant’s sister born 1991.
·E - the appellant’s sister born 1995.[3]
·J - the appellant’s sister born 1996.
·AS - the appellant’s aunt (i.e. his mother’s sister).
·R - the appellant’s wife.[4]
[2] Sometimes referred to by the Judge as JP and at other times as Ja.
[3] Also referred to by the Judge on some occasions as L.
[4] Sometimes the Judge referred to the appellant’s wife as Ra and at other times as R. The appellant’s sister R (born 1986) was sometimes also referred to as Ra. In context, it is clear to which person the Judge was referring.
Another brother, Jo (born 1993), did not give evidence but was referred to by some other witnesses.
The complainant in counts 1 and 2 was the appellant’s sister, S. During the relevant period she was aged from seven to nine years. The conduct alleged in count 1 is that while the family were travelling to church in their van the appellant indecently assaulted S by touching her vagina.
As I have noted, the appellant was acquitted of count 2. That count alleged that S had accompanied the appellant from her bed to his bed where he indecently assaulted her by touching her vagina.
The complainant in count 3 was the appellant’s sister, K. She was aged from five to seven years during the relevant period. The conduct covered by count 3 occurred while K was playing hide and seek with several of her siblings and hid in the appellant’s bed. He was in the bed and indecently assaulted K by touching her vagina. During the relevant period she was aged from five to seven years.
Evidence in relation to count 1
Because ground 4 of the notice of appeal contends that no reasonable finder of fact could have found that the offence comprised in count 1 could have occurred as described by S, it is necessary to refer in some detail to her evidence.
S stated that the offending conduct occurred on a Sunday morning when she was aged eight or nine years. She dressed herself and because “I knew something was coming” she put on extra layers of clothing under her dress comprising at least two pairs of knickers and also lycra bike shorts that reached to mid-thigh level. Her dress or skirt extended to mid-calf level (as did those worn by all girls in the family).
The family travelled in a 13-seater van to their church. S sat towards the back of the van hoping to avoid the appellant. However, he followed her to what she thought was the second last row of seats and sat next to her. The seating in the van comprised two seats on one side and one seat on the other. She was seated to the right of the appellant against the window. He put his right arm around her while his left hand held a book in his lap. He slowly slid his arm down the back of S, lifted up her dress, put his right hand below her underwear and other clothing, lifted her and touched her vagina from the rear and stimulated her clitoris. This conduct occurred for “maybe 10 minutes”. He did not speak while touching her. The appellant denied that this incident ever occurred.
Evidence in relation to Count 3
The complainant with respect to count 3 was the appellant’s sister, K. She was aged about six or seven years at the time of the relevant conduct. She was playing hide and seek with her sisters S and Ra (born 1986) and her brother A (born 1984). It was early in the morning and she ran into the bedroom where the appellant, his brother A and a third brother Jo slept. Jo did not give evidence. The appellant was in the bedroom and she told him that she needed somewhere to hide. At the suggestion of the appellant, she hid under the blanket. He pulled the blanket over her head and then pulled her nightie up and put his hand below her underwear and touched her vagina. K estimated that the touching of her vagina continued for “20 minutes or so”. He was rubbing her vagina by moving his fingers up and down and in a circular motion. The complainant’s brother A came into the room and was sitting on the bed next to the appellant while K remained under the blanket. When A realised that K was there, she got up and ran out of the room.
Discreditable conduct evidence
The prosecution gave notice of an intention to adduce discreditable conduct evidence for the purposes of s 34P(4) of the Evidence Act 1929 (SA). The notice contended that the discreditable conduct evidence was circumstantial evidence of a fact in issue showing the defendant to have a specific propensity to engage in opportunistic acts of sexual misconduct against his younger sisters. It was also contended that the discreditable conduct showed the defendant to have a sexual interest in his younger sisters and a tendency to act on that sexual interest. The evidence was sought to be led under s 34P(2)(b). The Judge proceeded on the basis that the discreditable conduct evidence must be proven beyond reasonable doubt.
The chook shed incident
The first allegation of discreditable conduct relied upon the evidence of the appellant’s sister E (born 1995).[5] The evidence of E was that when she was aged about five or six years the appellant asked her if she wanted to play a game. He took her to the back yard and sat her on his lap and bounced her up and down on his lap. Her legs were straddling his legs and her bottom was on his penis. He was fully clothed. E stated that the appellant had moved away from her towards the chook shed. While E was not sure that she had seen the appellant touch his penis, she did not recall him manipulating his penis. She had decided later when aged in her early teens that she had seen the appellant ejaculate. She made several different statements to the police and in evidence as to which way she was facing when bouncing on the appellant’s knee. The appellant denied this incident and said that from time to time he urinated in the back yard because of the heavy demand on the one toilet available to the children.
[5] In some passages in the judgment, the Judge referred to E as L.
The Judge expressed concern that there was an element of unconscious reconstruction in the evidence given by E. Her Honour was particularly concerned at the ability of a six or seven year old child to be able to determine the difference between a man urinating or ejaculating. The Judge concluded that she was unable to exclude as a reasonable possibility that E was mistaken as to what she had seen. Her Honour ruled that this evidence could not be used as discreditable conduct evidence.
The lounge room incident
J (born 1996) stated that when she was aged about six or seven years an incident had occurred in the lounge room of the family home. Her brother A, his girlfriend, her brother Jo and the appellant were watching television. The appellant was lying on a couch and invited J to sit and then lie down on him. As she did so he put his left hand under her dress and placed it on her underwear over her vagina. The appellant prevented her from moving away and “cuffed” her vagina for “minutes”.
While the Judge noted that there were some inconsistencies in the evidence of J as to who was present in the lounge room at the time of this incident, her Honour did not doubt the veracity or reliability of the evidence given by J. The Judge found beyond reasonable doubt that the incident had occurred as described by J.
The nappy incident
The appellant’s brother, A (born 1984), gave evidence about an incident involving the appellant when A was aged about 12 or 13 years. A and his sister, Ra (born 1986), had walked into a room where their sister E (born 1995) was on the bed next to the appellant. E’s nappy and waterproof nappy cover were around her ankles. The appellant was embarrassed and acting “real sheepish”.
Ra also gave evidence about this incident which occurred when she was aged 11 years. She said that the appellant had sat up very quickly when she and A entered the room and tried to “act casually”. She reported the incident to her mother.
While there were some differences in respect of matters of detail between the evidence of A and that of Ra about the “nappy incident”, this did not cause the Judge to doubt the credibility and reliability of their evidence. Her Honour found beyond reasonable doubt that this incident occurred in the manner described and admitted the evidence as relevant for a propensity purpose (namely, to show the appellant had a sexual interest in his siblings and was prepared to act on that sexual interest).
The chalkboard incident
A also gave evidence about an incident involving his sister K that occurred when he was aged 11 or 12 years. At that time, K would have been aged four to six years. While K drew on a chalkboard, the appellant was rubbing both his hands up and down the inside of her thigh. A could not remember if the appellant was rubbing one leg or both legs. The Judge accepted the evidence of A concerning the chalkboard incident.
The father’s evidence
The Judge accepted the evidence of the appellant’s father, M, that he had seen the appellant rubbing the outside of K’s thighs underneath her dress. M was deeply disturbed by what he saw and had significantly punished the appellant. Her Honour rejected the appellant’s explanation that he was working out the safest place to grasp K when throwing her up in the air. Her Honour also found that there was no innocent explanation for this behaviour and she was satisfied that the touching of K’s thighs had a sexual connotation. Accordingly, her Honour considered the strong probative value of this evidence outweighed any prejudicial effect, and ruled it admissible.
The Judge accepted the evidence of M that he had seen the appellant bouncing his younger siblings on his lap on a few occasions and that M regarded the appellant’s actions as unusual and distressing because he was never affectionate towards his younger siblings. However, her Honour determined that the highly prejudicial effect of this evidence on the appellant outweighed its probative value. Accordingly, the evidence was inadmissible.
The Judge also accepted the evidence of M that S had become distressed while the family was travelling in the van to church. However, at the time, M had considered this was due to normal sibling rivalry. Furthermore, the evidence of S was that she had only been indecently assaulted in the van on one occasion. While her Honour was satisfied that the event occurred, she was unable to find that the distress of S resulted from indecent touching by the appellant. Because the evidence did not have strong probative value and was outweighed by its prejudicial effect, the Judge ruled it inadmissible.
The mother’s evidence
The appellant’s mother, Ei, gave evidence about the appellant rubbing the legs of K and her observing an erection when he stood up. Ei also gave evidence about E rubbing the appellant’s fingernail and him having an erection. The Judge found the evidence of Ei to be unreliable due to problems with her memory. Her Honour placed no reliance upon the evidence of Ei.
Adoption of the District Court ruling
The appellant is the defendant in District Court proceedings alleging further offences against some of his sisters (E and J). The Judge adopted a ruling given by Judge Boylan of the District Court on 15 November 2017, to the effect that the evidence given by J could be used to show a disposition on the part of the defendant to engage in sexual conduct with his much younger siblings in a family setting. Her Honour also held that this evidence could be used to support the improbability of three of the appellant’s sisters giving false accounts of events with a degree of similarity unless those events occurred.[6] In the view of her Honour, the strong probative value of that evidence substantially outweighed any prejudicial effect that it may have.
Ground 1 – admissibility of complaint evidence under s 34M of the Evidence Act
[6] The three sisters referred to by her Honour are S, K and J – see [15]-[17], [21], [97] fn 14.
The appellant accepts that the complaints made by S to K and by K to S of sexual offending against them by the appellant were admissible under s 34M of the Evidence Act. However, the appellant contends that the trial miscarried as a result of the admission contrary to s 34M of evidence of complaints made by S to Ra (subsequent to her complaint to K), S to E (subsequent to her complaint to Ra), and by E to S and by J to K.
Evidence of complaints made by S
The Crown alleged in its opening that the first person S had told about sexual abuse by the appellant was her sister K. The prosecutor also alleged that S had further elaborated her complaint to her sister Ra. The Crown also relied upon a conversation that S had with E but only in relation to that conversation being an initial complaint by E.
S stated in her evidence-in-chief that the first person she had told about the abuse by the appellant was her sister Ra. That had occurred when S was aged 19 years at a wine and food festival. She stated that the disclosure had occurred in the course of a discussion between her and Ra when they were complaining generally about the appellant. S stated that the conversation was as follows:
Ra:You definitely don’t like him do you?
S:No, he abused me.
Ra:What do you mean by abuse?
S:He used to touch me.
S also stated in her evidence-in-chief that she had later told her younger sister, E, about the abuse while they were having a few drinks on the oval at Leigh Creek. Her evidence was that the conversation was in the following terms:
S:Do you know why we really don’t talk to [the appellant]?
E:No.
S:Because he abused me and [K].
E:I thought I was the only one.
S also stated that she had confirmed to E that she was not the only person who had been abused by the appellant and it was going to be okay.
It was put to S in cross-examination that she had stated to a police officer that the first person she had told about the abuse was K. That suggestion was not denied by S but she stated that the conversation with K was brief and to the effect “that it happened and that was it” and that Ra was the first person she had told whom was not previously aware of the conduct in question. S stated that during the conversation with K they had not spoken about anything specific that had happened to them but rather “it happened to you, it happened to me, okay, and we’ve never spoken of it since”. S stated that she had not discussed with K the detail of what had happened and had not discussed the incident in the van which is the subject of count 1.
The Judge’s findings in relation to complaint evidence
The Judge found that the first person S had spoken to about the conduct of the appellant was K. Her Honour considered this finding to be consistent with the evidence of Ra that S had told her that the appellant “used to touch” both her and K. Her Honour found that when S spoke to Ra she had already had a conversation with K about the abuse by the appellant.
The Judge found that the conversation between S and K was admissible as evidence of the first time a complaint was made by S concerning the sexual misconduct of the appellant. That conversation was referrable to the charged acts.
Her Honour also found that there was inconsistency between the evidence of S and of K in relation to the content of their conversations and also the location where the conversation took place. Because of those inconsistencies between S and K, her Honour was unable to make a finding as to what they had discussed. She was also unable to use the evidence of their conversations to demonstrate consistency of conduct. Her Honour also observed that she must take the inconsistencies between S and K into account when assessing the credibility and the reliability of their evidence.
The Judge held that evidence of the conversation between S and Ra was not admissible as complaint evidence. Her Honour also found that evidence of the conversations between the several siblings was relevant in the context of considering the possibility of collusion between witnesses and whether infection of their evidence could be excluded as a reasonable possibility. I will consider that issue in relation to appeal ground 1A.
The Judge also found that the evidence led in respect of complaints made by E to S and J to K could not be used to bolster their credibility. That was the case because s 34M(3) of the Evidence Act requires that the initial complaint evidence must be referable to a charged act. Neither E nor J was a complainant in the Youth Court trial, although they were complainants on the information laid in the District Court.
The appellant’s contentions in relation to the complaint evidence
The appellant contends that the evidence of the conversations between S and Ra and between S and E was inadmissible hearsay and should have been disregarded by the Judge. The appellant’s case at trial had not been conducted on the basis that the allegations made against him were the product of collusion. The cross-examination and closing address on behalf of the appellant were directed to the potential use of the impugned conversations as complaint evidence. The appellant’s case at trial largely focused on inconsistencies in the evidence and its implausibility. That did not render the impugned conversations admissible for the purpose of considering whether collusion or infection of evidence could be excluded. The evidence of the impugned conversations had not been led for the purpose that was articulated by the Crown in its closing address and which was accepted by the trial Judge.
The appellant complains that inadmissible evidence was used by the Judge to his detriment in circumstances where that evidence ought not to have been before the Court. The appellant further contends that the fact that the conversations were the subject of cross-examination is not material. Upon the conversations being raised in evidence by the Crown, that evidence needed to be tested in cross-examination.
The appellant also observes that it is unclear from the judgment how the Judge used the evidence of the conversation between S and E. Her Honour merely stated that this evidence could not be used to bolster the credibility of E as she was not a complainant. The appellant notes that while this observation was correct, he contends that the evidence was not admissible as complaint evidence in support of the allegations made by S.
The appellant submits that the Judge did not make clear how she used the evidence of the conversation between S and E. Her Honour merely specified that the evidence was not to be used to bolster the credibility of E as she was not a complainant in the proceedings before the Youth Court.
The respondent’s submissions in relation to the complaints made by S
The respondent submits that, as the Judge had determined that the conversation between S and Ra was not admissible as a complaint as it was a subsequent conversation to the initial complaint, it would have been illogical for her Honour to treat the even later “complaint” made by S to E any differently. The respondent further observes that because of the finding by the trial Judge that all evidence of conversations was relevant to the question of concoction, there was no uncertainty as to how her Honour used the evidence of the conversation between S and E.
The respondent also takes issue with the contention by the appellant that the possibility of collusion and witness contamination were not live issues at the trial. The respondent has pointed to passages in the cross-examination of S, K, E and J where counsel for the appellant directly put to those witness the suggestion that their evidence was contaminated by discussions with their sisters and the product of collusion. The respondent has referred to the last question asked in cross‑examination of S, the first prosecution witness, and suggested that this question succinctly encapsulated the appellant’s case that there was collusion and the evidence was contaminated. The question was:
Q.Well, you see, I told you at the start of this examination that my ultimate submission is that this simply didn't happen and I suggest that when the family fell out with [the appellant] you've all agitated, you've got your heads together, you decided he's the person that you can focus on that you can all hate, and then these offences have arisen. What do you say to that.
A.That is incorrect.
Consideration of ground 1
The only evidence treated as admissible by the Judge for the purposes of s 34M was the evidence of the initial complaint made by S to K and the initial complaint made by K to S. The appellant has not complained about those decisions.
It is quite clear that the possibility of concoction and contamination were live issues at the trial. Thus, it was of central importance for the Judge to determine whether these considerations could be excluded as a reasonable possibility. The possibility of concoction and contamination had to be excluded by the Crown in order for it to rely upon reasoning based upon the similarity of the account given by the several witnesses.[7] While the complaint evidence, other than S’s initial complaint to K and K’s initial complaint to S, was inadmissible under s 34M, that evidence was admissible and relevant in support of the similarity of account contention advanced by the prosecution. In this light, I accept the contention of the respondent that the Judge did not improperly use any evidence as complaint evidence contrary to s 34M.
[7] Hoch v The Queen (1988) 165 CLR 292.
I would dismiss ground 1.
Ground 1A – discussion between witnesses
The proposed additional ground 1A contends that the Judge erred by finding that each of the complainants had consistently maintained that they had never discussed the detail of the appellant’s actions. The appellant submits that this finding was not open on the evidence. In oral submissions the appellant suggested that the complainants had discussed details to the extent that they referred to touching of their vaginas.
The appellant contends that the erroneous finding by the Judge about the detail discussed by the complainants adversely affected her Honour’s assessment as to whether the evidence was a concoction or contaminated by the discussions between various witnesses.
Ground 1A focuses upon the conclusions reached by the Judge at paragraphs [269], [270] and [271] of her reasons. The relevant passage is as follows:
[269]The three complainants, S, K and J, have each given evidence of having been interfered with by the defendant. The circumstances of the alleged offending was similar. They were all of a young age and each of the incidents occurred in a family setting with other family members present. In my view, it is highly improbable that the complainants would have concocted similar stories unless the events had occurred. Furthermore, the discreditable conduct evidence given by M, A and [Ra] supports the fact of the defendant having a sexual interest in his siblings and being prepared to act on that interest.
[270]I have also accepted the evidence of [A] and [J] and found that the defendant had apologised for his conduct towards S in the meeting attended by [AS], and in the conversation between J and the defendant, he promised her that his conduct had only involved S and K.
[271]I reject any suggestion of concoction or infection of the evidence of the complainants. Each of the complainants consistently maintained they had never discussed the detail of the defendant’s actions. I also reject any suggestion the complainants have got together with other family members to plan the allegations. This is not borne out by the evidence. There was some evidence given of family meetings to discuss the matter. In my view, such meetings are quite understandable having regard to the events that had allegedly occurred and the distress caused to those involved. The allegations have had a significant impact on each of the siblings, the parents and the family unit. This was evident both from the evidence and the demeanour of the family members when giving evidence. However, I accept the evidence of all family members called by the prosecution that little or no detail has ever been discussed in these meetings.
Evidence was received at the trial from the appellant’s sisters Ra, E and J who were not complainants. The appellant submits that their evidence related to out-of-court statements made concerning other allegations and as such should not have been admitted. Their statements were effectively de facto complaint evidence but were not admissible under s 34M because the witnesses in question were not complainants at the appellant’s trial.
It is necessary to refer to certain parts of the evidence relevant to Ground 1A.
Complaints by S
I have referred at [33] to [37] to the evidence given by S concerning her complaint to Ra and also her later complaint to E in which she stated that the appellant had abused her and K. As I have noted already, in light of the latter comment the Judge found that the first person to whom S had complained about the conduct of the appellant was K. Her Honour also found that evidence of a conversation between S and K was referrable to the charged acts and admissible as evidence of the first complaint concerning the appellant’s conduct.
S also stated in relation to her discussion with K that “we did not talk about the particulars of what happened.” She said she did not recall the details of their conversation but it was a short conversation that had lasted at most a few minutes.
As noted previously, her Honour also found that due to inconsistencies between the evidence of S and K about the content of their conversation, she was unable to use that evidence to demonstrate consistency of conduct. Her Honour observed that she must take those inconsistencies into account when assessing the credibility and reliability of the evidence given by S and K. The appellant does not complain about that finding.
It was put to S in cross-examination that she had spoken to all of her sisters in detail about the allegations. She answered “not in detail.” She also denied that she and her sisters had compared notes and said to each other “[t]his happened to me, this happened to me.” S denied this proposition and stated “I still, to this day, have no idea what happened to my little sisters.” When asked if she knew of the particulars of what had happened to her sisters she stated “[n]one whatsoever.”
Complaint made by K and complaints made to K
The second complainant, K, gave evidence that she had complained to S and they had discussed the appellant touching both of them.
K also gave evidence that J had told her that the appellant had touched J’s vagina while some members of the family were watching a movie on TV in the lounge room at home. However, K’s evidence was that she had not told J about what had happened to her. J did not suggest in her evidence that K had told her what had happened to K.
The appellant submits that evidence of the complaint made by J to K was not admissible as she was not a complainant in the prosecution. This evidence, which was very similar in detail to the allegations comprised in count 3, should not have been led and should not have been received by the Court. The appellant also submits that the problem caused by the receipt of this evidence was compounded by the fact that S did not give evidence about what K had said to her. In fact, as I have noted already, S stated that she and K “did not talk about the particulars of what happened.”
The evidence of E
E gave evidence about the appellant bouncing her on his knee and then ejaculating near the chook shed. E stated that S was the first person she told about this incident, but she did not suggest to S that she had been touched upon the vagina. The alleged incident recounted by E was quite different to those described by S and K in that E did not allege that the appellant touched her vagina.
Complaint by J
J gave evidence concerning the uncharged act where the appellant allegedly touched her vagina while she lay on top of him on the couch while they and other family members were watching television. J stated that the first person that she told about this incident was K while the family was living at Leigh Creek. J returned home and found her sister E crying and being comforted by their mother, Ei. Their sister K was “in a panic”. J asked K what the matter was and K stated that the appellant had inappropriately touched E.
According to the evidence of J, K then asked J whether the appellant had done anything to her. In response to K’s question “[w]hat did he do?” J had stated “[i]t wasn’t that bad” and “[h]e touched me in a way but it wasn’t that bad”. K then told their mother who soon after told their father, M, at his place of work.
J also denied that she and her sisters had discussed the detail of what had been done to them. She stated:
No, on that occasion we all sat there and we spoke about what had happened to all of us. We didn’t go into detail on what had happened to all of us. What we – we spoke about it, like this has happened. What we want to do about it and then it was just sort of laid to rest for a little while. And then probably us siblings I think we’ve all – we just – we all generally just don’t like talking about it. It’s not a very pleasant thing for us to all speak about, so it’s not something that we all set aside and just sit there and feel comfortable about talking about it, so –
At a later point J stated:
Well there was a time when we had spoken about it. We had all spoken about it because this is when we did do the statements. It could have been before the statements that we did all kind of just talk about it. I don’t know what happened to my sisters. I have spoken to my sisters about – I think I’ve spoken to [K] about it, I don’t know. But we all don’t know in detail what’s happened to each other. I’ve got no idea what’s happened to them. So it’s not something like we like to sit there and talk about. Like I say, it’s not – we don’t feel comfortable talking about it.
Subsequently, when the family had returned to live in Adelaide, the family had discussed what had happened to E, K and S. They had not gone into detail as to what had happened to them.
Consideration of Ground 1A
At [271] of her Honour’s reasons, the Judge rejected any suggestion of concoction or infection of the evidence of the complainants. Her Honour based that finding on the fact that each of the complainants had consistently maintained that they had not discussed the detail of the appellant’s actions. That finding was entirely consistent with the evidence to which I have referred. The witnesses specifically stated that they had not discussed any detail about what the appellant had done to them. They explained their reticence on the basis that they were embarrassed and uncomfortable talking about such a subject. The Judge accepted their evidence after seeing and hearing them give consistent evidence in response to direct challenges in cross-examination when it was suggested that they had discussed the details of the offending with each other.
The Judge also found that little or no detail of the allegations had been discussed at the family meetings between the siblings and their parents. Once again, that finding was entirely consistent with the evidence of the witnesses.
The appellant has suggested that a common feature of the discussions between the sisters about the alleged offending was that they had been touched on the vagina by the appellant. In the submissions of the appellant, that common feature required that the Judge deal with the issue in her reasons.
The respondent submits that this complaint must be considered in light of the actual allegations made by S, K and J about the conduct of the appellant. S alleged that when she was aged about eight or nine years the appellant had placed his hand beneath several layers of clothing and stimulated her clitoris for about 10 minutes while the family travelled in the van to church. K alleged that the appellant had put his hand beneath her underwear during a game of hide‑and‑seek and rubbed her vagina for about 20 minutes by moving his fingers up and down and in a circular motion. J’s evidence was that when she was when she was aged about six or seven years, while watching a movie on TV with other family members in the lounge room, the appellant had put his hand under her dress and on her vagina over her underwear. She said that he had “cuffed” her vagina for a short time. In this light, the respondent submits that there was no commonality between the touching described by S, K and J.
While the conduct described by S, K and J is certainly not identical, there is very substantial commonality between the stimulation of her clitoris for some 10 minutes described by S and the rubbing of her vagina with the appellant’s fingers for some 20 minutes referred to by K. The common feature is that the appellant had allegedly placed his hand beneath the underwear of S and K to stimulate their genitalia for a relatively substantial period. The conduct complained of by J was noticeably different in that the appellant was said to have “cuffed” her vagina over her underwear for a short period. While the incident involving J did differ from those involving S and K, in all three instances the appellant used his hand or fingers to make contact with the complainant’s genital region.
While I do not accept the suggestion by the respondent that there was no commonality in the conduct alleged by S, K and J against the appellant, there were differences in the allegations, particularly that involving J. Furthermore, as the respondent has pointed out, there was no evidence that S, K and J had discussed with the other complainants the length of time over which the offending had occurred, the manner in which each was touched by the appellant, the precise nature of the touching or the circumstances surrounding the touching and the mechanics of the interference.
For the preceding reasons, I do not consider that the Judge erred by rejecting any suggestion of concoction or infection of the evidence of the complainants. That finding was entirely consistent with the complainants’ unequivocal evidence that they had not discussed the details of the appellant’s conduct. Accordingly, I do not consider that appeal ground 1A is made out.
Ground 2 – forensic disadvantage – s 34CB of the Evidence Act
The appellant contends that the trial miscarried because the Judge failed to adequately direct herself concerning the forensic disadvantage suffered by the appellant as required by s 34CB of the Evidence Act.
The Judge’s approach to forensic disadvantage
The Judge noted that the conduct comprising the subject matter of the charges was alleged to have occurred between 1996 and 1998. At that time the complainant S was aged between seven and nine years and complainant K from five to seven years. Her Honour stated:
[32]I accept that this delay has resulted in a significant forensic disadvantage to the defendant. This disadvantage presents itself in challenging and responding to allegations made in respect of incidents that were said to have occurred over 20 years ago. Specifically, the disadvantages faced by the defendant relate to having a clear recollection of what happened up to 20 years ago, his ability to have someone vouch for his movements or establish any alibi evidence and locate forensic evidence which may have been available.
[33] I will take into account the forensic disadvantage to the defendant when scrutinising the evidence of the prosecution and assessing whether the prosecution has proved its case against the defendant.
The appellant’s contentions concerning forensic disadvantage
The appellant complains that the directions the Judge gave to herself failed to identify the significant forensic disadvantage he suffered and also failed to explain the nature of that disadvantage and how it should be taken into account when scrutinising the evidence in support of each count.
The appellant contends that the directions were focused solely upon the effects of the passage of time upon the appellant without considering that issues arose for the appellant within the Crown case. In support of that contention, the appellant referred to observations made by Doyle CJ in R v Cassebohm, where the former Chief Justice indicated:[8]
… it is sufficient for a trial Judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that this is so. … The Judge will have to consider … the difficulty of testing the complainant’s evidence, and the difficulty of marshalling a defence. Other circumstances, not attributable to the passage of time, may well need to be considered.
[8] (2011) 109 SASR 465 at 474-475 [30].
The appellant submits that he was disadvantaged because of an inability in some instances, and a reduced ability in others, to test in detail the accounts given by the complainants.[9] The appellant contends that there were many occasions when the complainants and also other witnesses claimed a loss of memory in respect of the topics they were being questioned about. In the appellant’s submission, the Judge failed to identify these defects of memory as an element of the forensic disadvantage that the appellant suffered. The effect was to deny the appellant recognition of the full extent of the disadvantage occasioned by the passage of time.
[9] R v Maiolo(No 2) (2013) 117 SASR 1 at 55 [179] (Peek J).
The appellant also complains that his inability, and also the inability of his wife, to produce a SIM card for a mobile phone was used adversely to him contrary to s 34CB. The Judge found that his explanation for his inability to produce a SIM card was unsatisfactory. The appellant contends that, rather than making an adverse finding, the Judge should have recognised that his inability to explain the whereabouts of the SIM card was an aspect of the forensic disadvantage he suffered.
The respondent’s submissions in relation to forensic disadvantage
The respondent submits that s 34CB of the Evidence Act does not apply to a trial conducted by a judge sitting alone.[10] Importantly, the respondent acknowledges that while s 34CB does not require a judge sitting alone to direct themselves concerning forensic disadvantage, the judge needs to pay close attention to that issue and where delay is a material issue at trial the judge’s reasons must adequately deal with that issue. The respondent contends that the Judge did deal appropriately with the issue of forensic disadvantage occasioned by the passage of time. The respondent further submits that the risks referred by this Court in R v Maiolo (No 2) do not arise.[11]
[10] R v T, WA (2014) 118 SASR 382 at 387-388 [19]-[22] (Kourakis CJ, Vanstone J agreeing with respect to this point and Anderson J agreeing generally).
[11] (2013) 117 SASR 1 at 55 [179] (Peek J).
Consideration of Ground 2
Peek J held in R v Maiolo (No 2) (with Kourakis CJ and Stanley J agreeing) that in the circumstances of that case the Judge had erred by instructing the jury that forensic disadvantage meant “difficulties for Mr Maiolo in giving evidence about matters so old”.[12] It was correct that a forensic disadvantage included difficulty in remembering matters and also difficulty in obtaining information or documents from which memory might be assisted or refreshed. Peek J observed that, more importantly, the disadvantage may result in a diminution in the ability to effectively conduct one’s case, including the cross‑examination of complainants in a way that effectively casts doubt upon their credibility and/or reliability.
[12] Ibid.
Because the Judge was sitting alone she was not required to warn herself about the forensic disadvantage suffered by the appellant. Nevertheless, the Judge did administer a warning to herself. It is quite clear from the terms of that warning and the relevant passages in the judgment that her Honour paid close attention to the question of forensic disadvantage caused by delay and appropriately deal with that issue.
The warning given by the Judge, set out at [78] above, adequately dealt with the matters referred to by Peek J in Maiolo (No 2). The Judge specifically referred to, not only the difficulty for the appellant in responding to allegations, but also the disadvantage in challenging allegations that dated back some 20 years. I consider that the latter aspect of the warning was apt to encompass the wider considerations referred to by Peek J.
Against the background of that warning, the Judge carefully analysed the evidence of the witnesses called by the prosecution and the evidence given by the appellant. Her Honour was not persuaded by some of the evidence given by prosecution witnesses. Thus, for example, her Honour found that there was an element of unconscious reconstruction in the evidence given by E concerning the “chook shed incident”. Similarly, her Honour expressed concern as to the reliability of the memory of the appellant’s mother, Ei, and was not prepared to accept her evidence about particular incidents.
The Judge also found that the appellant was not an impressive witness. There were many aspects of his evidence that were unsatisfactory. Her Honour considered that there was also significant embellishment and exaggeration on his part. Her Honour identified nine specific aspects of the appellant’s evidence that she considered unsatisfactory and rejected his evidence on several points.
I consider that the Judge conducted a careful analysis of the evidence and clearly stated her reasons for accepting or rejecting particular evidence. There is nothing whatsoever in her Honour’s reasons to suggest that she failed to recognise the forensic disadvantage suffered by the appellant.
The background to the SIM card issue is that during his examination-in-chief the appellant referred to text messages that he and his wife had received from some of his siblings and his mother. He stated that he had been saving such text messages since about 2008 in view of the complainants’ attitude towards him. He produced photographs of some text messages recorded in his old telephone (exhibit D1) and in his wife’s phone (exhibits D3, D6 and D8). During cross-examination, but without being ordered by the Court to do so, the appellant agreed to produce his old telephone and consented to it being forensically examined.[13] While he no longer used the phone, he had it with him in Court. However, the SIM card was missing from the phone. Thus, the messages could not be retrieved upon forensic examination.
[13] There had been a suggestion that the police could seize the phone under a general search warrant for the purpose of forensic examination.
The appellant had access to his old telephone and that of his wife when preparing for the trial. At that time, he had taken the photographs of the text messages that were admitted into the evidence. He denied in cross‑examination that he had any knowledge of the whereabouts of his wife’s telephone or of the SIM card for his phone.
The appellant contends that the Judge should have recognised that his inability to produce the SIM card was part of the forensic disadvantage that he had suffered due to the passage of time. I do not accept this contention.
The important point is that the appellant had access to his wife’s phone and the SIM card when he was preparing for the trial. It is therefore not apparent how the passage of time prejudiced the appellant in respect of this particular issue. Furthermore, the Judge did not use the absence of the SIM card to infer that it contained adverse material. Her Honour simply found that the appellant was not truthful in his evidence that he did not know the whereabouts of the SIM card even though he had accessed it for the purposes of trial preparation. The question of forensic disadvantage caused by the passage of time was not relevant to that finding.
I would dismiss ground 2.
Ground 3 – trial miscarried due to prejudicial and inadmissible evidence being led at trial
The prosecution gave notice under s 34P(4) of the Evidence Act of its intention to adduce discreditable conduct evidence. The notice identified that evidence as follows:
1The evidence of [E] in relation to the charge of indecent assault;
2The evidence of [J] in relation to the charge of indecent assault;
3The evidence of [A] observing:
a. The defendant on a bed with [E] when her nappy was around her ankles;
b. The defendant rubbing the leg of [K] while she was drawing on a chalkboard.
4The evidence of [Ra] observing the defendant on a bed with [E] when her nappy was around her ankles;
5The evidence of Ja observing the defendant, when travelling in the family van on the way to church, saving a seat next to him for S to sit;
6The evidence of [Ei] observing the defendant crouching behind [K] and rubbing his hands up and down her legs while having an erection;
7The evidence of [M] observing:
a. The defendant running his hands up and down the legs of [K];
b. [S] becoming upset and saying “Dad, P’s touching me” while in the family van;
c. The defendant bouncing his younger sisters on his lap multiple times.
The Judge’s findings
The Judge reminded herself that she must be satisfied that the discreditable conduct is relevant to the charged acts. Her Honour also reminded herself that if the evidence of discreditable conduct was admitted, that did not absolve her from the task of determining whether the elements of the actual charges were made out. Such evidence was only admissible to assist in the evaluation of the evidence going directly to the charges.
As I have previously noted, the Judge adopted the ruling made by Judge Boylan of the District Court as to the cross admissibility of evidence given by the complainants in proceedings in the Youth Court and in the District Court. Her Honour also adopted the District Court ruling that the evidence of the complainants E and J was admissible to support the improbability of four of the appellant’s sisters giving false accounts of events with a degree of similarity unless those events had occurred.[14]
[14] The ruling by Judge Boylan related to the appellant’s sisters, S, K, J and E. However, her Honour ultimately did not rely on the improbability of account by reference to the evidence of E (and also not that of the appellant’s mother Ei) – see [19]-[20], [30], [120].
The use of the evidence in this way fell under s 34P(2)(a) of the Evidence Act and the evidence was admissible for non-prospensity reasoning purposes. Her Honour also reminded herself that when applying improbability reasoning, the evidence could not be used to suggest that the appellant was more likely to have committed the offences because he had engaged in discreditable conduct. Her Honour recorded that, like Judge Boylan, she was satisfied that the probative value of the discreditable conduct evidence substantially outweighed its prejudicial effect and the permissible use of this evidence could be kept sufficiently separate and distinct from the impermissible use.
The Judge found that the prosecution had not proved beyond reasonable doubt the discreditable conduct alleged at paragraphs 1 and 6 of the s 34P(4) notice. Her Honour further found that Ja had not given evidence in the terms alleged in paragraph 5 of the notice and also ruled that, in any event, the alleged behaviour did not amount to discreditable conduct. Her Honour also found that the allegation in paragraph 7(b) did not have strong probative value and was outweighed by the prejudicial effect on the appellant. Finally, her Honour found in relation to the discreditable conduct notice that the allegation contained in paragraph 7(c) was inadmissible as the high level of prejudice to the appellant outweighed the probative value of the allegation.
The end result was that the Judge found the following discreditable conduct evidence to be proved beyond reasonable doubt and admissible for the purpose of showing similarity of account, the appellant’s sexual interest in his siblings and his willingness to act upon that interest although the risk of detection was high:
·That the appellant had touched J’s vagina while she was in the lounge room in the presence of other family members (paragraph 2 of the notice);
·That A was with Ra when he saw the appellant on a bed with E while E’s nappy was around her ankles (paragraph 3(a)), and Ra who was with A when she saw that incident (paragraph 4). Paragraphs 3(a) and 4 refer to the same incident;
·That A saw the appellant rubbing his hand up and down the inner thigh of K (paragraph 3(b)); and
·That the appellant’s father had seen him touching K on the outside of her thighs beneath her dress (paragraph 7(a)).
The appellant’s submissions in relation to discreditable conduct evidence
The appellant submits that although the Judge ruled that much of the discreditable conduct evidence was inadmissible, the fact that the Court had received this evidence de bene esse led to other evidence being led that was prejudicial to the appellant. In this respect the appellant places reliance upon the observation of Vanstone J in R v Pedler that, where a judge is sitting without a jury, rulings on evidence should be sought and approached in the same way as if a jury was the fact finder.[15] The appellant submits that the dangers identified by Vanstone J arose in his case. Although the Judge ultimately ruled the evidence in question to be inadmissible, the fact that such evidence was received by the Court resulted in other evidence being led that was prejudicial to the appellant.
[15] (2017) 129 SASR 152 at 158 [26] (Vanstone J).
By way of example of inadmissible evidence being received, the appellant refers to the evidence that his mother, Ei, had spoken to him about growing up and that things that had happened with E probably went “a little bit far”. Hearsay confirmation of an alleged confession made by the appellant’s wife, R, was also received and, according to the submission of the appellant, apparently relied upon by the Judge in her reasons.
The appellant submits that the preceding evidence may not have been led if the evidence to which it related had been ruled inadmissible at the outset. The evidence found to be inadmissible by the Judge after being received de bene esse formed part of the forensic decision making process at the trial, was part of the factual background against which the appellant determined whether to give evidence or not and was the subject of cross-examination once he elected to give evidence. He would not have been required to give evidence on these topics and be cross-examined about them if the relevant evidence had not been received de bene esse. The messages contained in exhibit D6 also related to the allegations concerning E that were subsequently found to be inadmissible. This exhibit may not have been tendered if the evidence had been ruled inadmissible at an earlier point.
For these several reasons, the appellant contends that his trial miscarried.
The respondent’s submissions
The respondent notes that the Judge erred (albeit favourably to the appellant) in ruling that it was necessary to prove the discreditable conduct evidence beyond reasonable doubt before it could be used for any of the purposes identified in the s 34P(4) notice. The other evidence of discreditable conduct that was found to be admissible resulted in the issue of the appellant’s sexual interests in his sisters and his willingness to act upon that interest remaining a live issue at the trial. The appellant made his decision to give evidence in that context.
The respondent notes that the potential use of the discreditable conduct evidence given by E and her mother, Ei, was, first, as evidence of similarity of account between the siblings and the inherent improbability of four of the appellant’s sisters giving false accounts with such a degree of similarity in the absence of concoction or contamination.[16] Secondly, that evidence may, if accepted, establish that the appellant had a sexual interest in the complainant or a disposition to engage in opportunistic acts of sexual misconduct with his much younger sisters.
[16] The other three sisters being referred to are S, K and J.
The respondent points out that the appellant had agreed at a directions hearing prior to the trial that evidence falling outside the ruling of Judge Boylan in the District Court could be received de bene esse. The respondent submits that because there was no objection to this evidence being led, no error of law occurred.[17]
[17] R v Bromley [2018] SASCFC 41 at [311] (Peek, Stanley and Nicholson JJ) where the Full Court adopted with approval the reasoning of the Tasmanian Court of Criminal Appeal in Standage v Tasmania [2017] TASCCA 23 at [72]-[75] (Wood J).
The respondent also observes that the evidence of E and of the appellant’s mother, Ei, referred to in paragraphs [19] to [20] and [30] was not ruled inadmissible. The evidence had the required probative force and met the requirements for admissibility under s 34P. However, the Judge determined that she could not place any reliance upon that evidence because it had not been proven beyond reasonable doubt. The latter approach had been agreed by the parties. This decision favoured the appellant because it is not ordinarily necessary that discreditable conduct evidence be proven beyond reasonable doubt.[18]
[18] R v Bauer (2018) 92 ALJR 846 at 868 [80] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). Their Honours observed that “[o]rdinarily, proof of the accused’s tendency to act in a particular way will not be an indispensable intermediate step in reasoning to guilt.”
The respondent also notes that, because it had been agreed that discreditable conduct had to be proved beyond reasonable doubt before that evidence could be used by the trial Judge, the procedure of receiving discreditable conduct evidence de bene esse was the most efficient manner in which to conduct the trial. The only issue is whether the approach adopted has given rise to a miscarriage of justice. The source of the alleged miscarriage is said by the appellant to be the need for him to make a forensic decision as to whether he should give evidence and his exposure to cross-examination on the matters about which he gave evidence.
The respondent submits that there is nothing in the Judge’s reasons which suggests that her Honour took into account evidence that had not been proven beyond reasonable doubt. The result of the Judge’s finding that the evidence of E and her mother Ei had not been proven beyond reasonable doubt was that her Honour could not, and did not, have regard to that evidence for the purpose of proving similarity of account and the appellant’s sexual interest in a complainant and his disposition to sexually abuse his younger sisters. The respondent therefore submits that the Judge only used similarity of account reasoning in respect of three of the appellant’s sisters – S, K and J.
The respondent also submits that the leading of admissible evidence which is ultimately disregarded by the trier of fact does not make that evidence inadmissible, nor does it give rise to a miscarriage of justice. The respondent supports that submission by reference to two analogies.
The first of those analogies is that evidence that forms an indispensable link in a chain of reasoning to establish guilt must be proved beyond reasonable doubt. If the trier of fact is not satisfied beyond reasonable doubt, the chain of reasoning is not available. However, this does not have the result that the receipt of the particular evidence at the trial has caused a miscarriage of justice, nor does it mean that the decision of a defendant to give evidence has been unfairly compromised. To the contrary, whether or not a fact has been proven beyond reasonable doubt will often be influenced by the evidence of the defendant.
The second analogy relied upon by the respondent is that if the submission of the appellant is correct, any trial where a defendant is acquitted of one count but convicted of another would give rise to a miscarriage of justice on the basis that the defendant’s decision to give evidence was made in light of evidence which was not accepted and applied by the trier of fact.
The respondent also submits that the disposition of the appellant to engage in sexual misconduct against his sisters when they were between the ages of five and nine years remained an issue at the trial notwithstanding the fact that the Judge did not accept the evidence of E and Ei relating to that issue. The evidence of A and Ra that they saw the appellant on a bed with E while her nappy was around her ankles was relevant to the appellant’s disposition to sexually abuse E. The appellant made his decision to give evidence in the context of the prosecution introducing admissible evidence of A and Ra to prove his disposition to sexually abuse E. Thus, the respondent submits, the fact that the evidence of E and Ei was held to be inadmissible to prove that disposition could not have logically affected the appellant’s decision to give evidence.
The final point made by the respondent in respect of ground 3 is that it is clear from the Judge’s reasons that her Honour did not rely upon the evidence of E and Ei to find the appellant guilty. Her Honour specifically stated that she would not rely upon that evidence and referred only to the evidence of S, K and J when considering the improbability of account reasoning. There is no basis whatsoever to assume that the Judge incorrectly relied upon evidence that she found to be inadmissible. Similarly, the Judge did not refer to the evidence of E or Ei in the process of finding that the appellant had a sexual interest in his siblings and a preparedness to act upon that interest. In making that finding, her Honour only referred to the discreditable conduct evidence given by the appellant’s father, M, his brother, A, and sister, Ra.
Consideration of ground 3
The ruling by the Judge that the discreditable conduct evidence needed to be proven beyond reasonable doubt was not correct and was unduly favourable to the appellant.[19]
[19] R v Bauer (2018) 92 ALJR 846 at 868 [80] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
As the respondent has pointed out, the intention of the prosecution in introducing the evidence of the appellant’s sister E and his mother Ei was to provide additional evidence of similarity of account and the appellant’s sexual interest in his sisters and his disposition to engage in opportunistic sexual misconduct with his sisters. It is quite clear from the Judge’s reasons that she had no regard to the evidence of E and Ei.
I accept the correctness of the suggestion by the respondent that ground 3 conflates the admissibility of evidence concerning the occurrence of an event and the consequence of the trier of fact not being satisfied that the event occurred. The leading of admissible evidence that is ultimately found not to be proven to the required standard does not have the effect of making that evidence inadmissible, nor does the receipt of that evidence at trial give rise to a miscarriage of justice. In that respect I agree with the first of the analogies drawn by the respondent to which I have referred to at paragraphs [111] to [113]. However, I do not regard the second analogy relied upon by the respondent as being correct. In some circumstances a defendant may have been found not guilty for reasons other than evidence not being accepted and applied.
I am not persuaded by the appellant’s submission that the ultimate failure of the Judge to accept the evidence given by E and Ei resulted in a miscarriage of justice arising from the fact that he made forensic decisions to give evidence when some of the prosecution evidence that he would have taken into account when making his decision was ultimately rejected by the Judge. That contention cannot be accepted, because it fails to have regard to the fact that there was substantial other discreditable conduct evidence given at the trial that demonstrated similarity of account between the several sisters, his sexual interest in his sisters and his disposition to engage in opportunistic acts of sexual misconduct against them.
The Judge made findings concerning the improbability of account based upon the evidence of only S, K and J and made no reference to the evidence of E. Similarly, her Honour did not refer to the evidence of E and Ei when she made her finding that the appellant was sexually interested in his sisters and was prepared to act upon that interest. That finding was based upon the evidence given by the appellant’s father M, his brother A and his sister Ra.
I would dismiss ground 3.
Ground 4 – verdict unsafe and unsatisfactory
Ground 4 challenges the finding by the Judge that the appellant had touched the vagina of S while the family travelled to church in their 13 seater van and was thus guilty of count 1. This Ground also challenges her Honour’s finding in relation to count 3 that the appellant had touched K’s vagina while she hid in his bed during a game of hide and seek.
The Judge’s findings in relation to count 1
Before referring to the findings of the Judge in relation to count 1, it is necessary to note that the appellant’s elder sister, Ja, gave evidence that the appellant had admitted to her in a telephone conversation in 2008 that he had touched S. The appellant’s aunt, AS, also gave evidence that the appellant had apologised to S for his actions in the presence of AS.
The Judge stated that she accepted the evidence of S concerning count 1. In accepting the evidence of S, her Honour had taken into account the improbability reasoning and the finding that the appellant had a sexual interest in his siblings. The evidence of S was also supported by the admissions against interest made by the appellant in his conversations with his aunt, AS, and his elder sister, Ja. Notwithstanding the denial of the appellant, the Judge accepted the account of S as being both reliable and credible. Her Honour was satisfied beyond reasonable doubt that the incident had occurred in the manner described by S.
The Judge’s findings in relation to count 3
In relation to count 3, the Judge stated that she accepted the evidence of K save for her evidence about an incident when eggs were thrown at the appellant’s home. Her Honour noted that, in accepting the evidence of K, she had taken into account the improbability reasoning and also the finding that the appellant had a sexual interest in his siblings. The evidence of K was also supported by the admission against interest made by the appellant in his conversation with Ja. Notwithstanding the denial by the appellant, due to the credible and reliable account of the incident provided by K, together with the other supporting evidence to which her Honour had referred, she was satisfied beyond reasonable doubt that the incident had occurred in the manner described by K.
The appellant’s submissions on the unsafe and unsatisfactory ground
In relation to count 1, the appellant contends that no reasonable trier of fact could have found that the appellant could have touched the vagina of S in the manner she described while the family travelled to church in their van. The appellant refers to the fact that in her evidence-in-chief and in cross‑examination S stated that the appellant had used his right hand to touch her. However, in an earlier statement that S had provided to the police, she stated that the appellant had used his left hand. S stated that she had made a mistake about the hand used by the appellant because she was “terribly uncoordinated and I still have to use my hands to tell me which one is left or right”. The appellant contends that her explanation is not adequate.
The appellant submits that, in accordance with the principles stated by the High Court in R v Nguyen, the inadequacies and discrepancies in the evidence are such that it was not open to the Judge to be satisfied beyond reasonable doubt that the appellant was guilty of count 1.[20] No reasonable trier of fact could have found that the offence occurred as described by S.
[20] (2010) 242 CLR 491 at 499-500 [33] (Hayne, Heydon, Crennan, Kiefel and Bell JJ).
The appellant also submits that a number of other alleged inconsistencies in the evidence indicate that it was unsafe to convict on either count 1 or count 3. The matters referred to by the appellant include the inconsistent evidence given by S as to the recipient of her first disclosure, different versions as to where the discussions between S and K and between J and K had occurred, the level of detail in the discussions between S and K, E and S and J and K, different evidence as to whether the family had discussed what to do about the allegations and the destination of the trip in the van when the conduct alleged in count 1 occurred. In relation to the latter matter, S said that the conduct alleged in count 1 occurred when the family were travelling in the van to church, whereas K said that S had told her that it occurred on the way home from the park. Other inconsistencies referred to by the appellant are the change in position by S as to whether he had used his left or right hand to commit the offence alleged in count 1, the several different versions as to whom had thrown eggs at the appellant’s house and inconsistencies as to what E was wearing during the nappy incident.
The respondent’s submissions on the unsafe and unsatisfactory ground
The respondent submits that the Court must act in accordance with the principle stated by the High Court in Filippou v The Queen that a finding of guilt by a judge sitting alone should not be disturbed: [21]
unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice.
[21] (2015) 256 CLR 47 at 53-54 [12] (French CJ, Bell, Keane and Nettle JJ).
The respondent submits that the evidence that the appellant indecently assaulted S as they travelled to church in the van was compelling in light of the unnatural interest he had shown in his siblings and his willingness to act upon that interest despite the risk of detection. The evidence of K, S, J, Ja, AS, Ra, A and M proved that the appellant had a disposition to engage in sexual conduct with his sisters when they were aged under 10 years and he was aged over 15 years. The Judge also took into account the admissions against interest made to Ja and AS.
The respondent also submits that the explanation given by S concerning the hand used by the appellant was entirely plausible given her evidence that she sat closest to the window on the right hand side of the van and the appellant occupied the aisle seat.
The respondent further submits that the various inconsistencies referred to by the appellant were not of such significance as to require the Court to have doubt about the allegations that the appellant had indecently assaulted S and K by placing his hand inside their underwear and touching their vaginas.
Consideration of Ground 4
The appellant submits that his conviction on count 1 is unsafe as it is inherently improbable that he could have indecently assaulted S in the circumstances that existed.
After seeing and hearing the evidence of S, the Judge found beyond reasonable doubt that the incident encompassed in count 1 had occurred in the manner she described. Her Honour found that the appellant had assaulted S by “putting his arm on her back, lifting her dress and sliding his hand inside her underpants and touching her vagina.” Her Honour specifically rejected the submission that the actions described by S were a physical impossibility. She noted that, at the time of the alleged incident, S was aged between seven to nine years while the appellant was aged from 15 to 17 years. The point obviously being made by her Honour was that there would have been a very substantial difference in size between S and the appellant.
Careful consideration of the circumstances described by S and consideration of the size difference leads me to conclude that it was not physically impossible for the appellant to place his hand under S, pull up her the rear of her dress, insert his hand beneath the several layers of clothing that she was wearing under the dress and then reach between her legs so as to touch her vagina from the rear.
The fact that the indecent assault of S occurred in the van while numerous other family members were present might in other circumstances be taken to raise a reasonable doubt as to the truthfulness of the allegation. However, I consider that the Judge was correct to accept that the evidence of multiple witnesses established the disposition of the appellant to engage in sexual misconduct with his sisters and his willingness to do so despite the risk of detection.
The Judge also considered the fact that S had originally stated to police that the appellant had used his left hand to assault her whereas in her oral evidence she referred to his use of his right hand. After hearing and seeing S give evidence, the Judge accepted her evidence that she had difficulty telling left from right.
I am not persuaded that the alleged conduct referred to in count 1 was physically impossible or inherently unlikely. The finding of fact made by the Judge was entirely consistent with the evidence. I am satisfied that there was no miscarriage of justice.
I turn to the complaint that the alleged inconsistencies in the evidence indicate that it was unsafe to convict on either count 1 or count 3. The Judge found that there were inconsistencies between the evidence of S and that of K concerning both the content and location of their discussion. Her Honour also noted the inconsistency in their evidence as to whether the family were travelling to church or home from the park when the conduct referred to in count 1 occurred. Her Honour held that because of these inconsistencies she was unable to make a finding as to what was discussed between S and K and could not use the evidence of their conversations to demonstrate consistency of conduct. Her Honour also took the inconsistencies into account when assessing the credibility and reliability of their evidence.
As I have already noted, the Judge considered the contention that the siblings had exchanged particulars of what had been done to them and also considered what discussions the family had held. Her Honour found that, while there had been family discussions, the detail of the appellant’s conduct had not been discussed.
The Judge rejected the evidence of K in relation to the egg throwing incident, but concluded that the incident was not directly relevant and there were many possible explanations for the inconsistencies. Her Honour otherwise accepted the evidence of K. She recorded that she had done so after taking into account the improbability reasoning, the finding that the appellant had a sexual interest in his siblings and the admission against interest made in his conversation with Ja.
It is apparent that the Judge took into account the alleged inconsistencies referred to by the appellant before concluding that the appellant was guilty of counts 1 and 3. In my view her Honour made appropriate findings in relation to these matters. I also consider that both individually and collectively the suggested inconsistencies are not so significant as to raise any reasonable doubt that the appellant had touched S and K in the manner alleged in counts 1 and 3.
I would dismiss Ground 4.
Conclusion
I would grant permission to appeal on Ground 1A but would dismiss the appeal on all grounds.
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