R v RTW No. Sccrm-99-267
[2000] SASC 178
•29 June 2000
R v RTW
[2000] SASC 178
Court of Criminal Appeal: Doyle CJ, Duggan and Lander JJ
DOYLE CJ. I would dismiss the appeal for the reasons given by Duggan J. There is nothing that I wish to add to those reasons.
DUGGAN J. The appellant was presented for trial on an information which alleged the following offences:
“First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RTW on about the 2nd October, 1995 at Paringa, indecently assaulted A, a person of the age of 10 years.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RTW in about August, 1996 at Ardrossan, had sexual intercourse with A, a person of the age of about 11 years, by performing an act of fellatio upon him.
Third Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RTW in or about the months of September or October 1996 at Butler’s Beach, indecently assaulted A, a person of the age of 11 years.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RTW between the 1st January, 1997 and the 28th February, 1997 at Big Bend, had sexual intercourse with A, a person of the age of 12 years, by performing an act of fellatio upon him.”
The complainant did not make any allegation in his evidence at the trial that there was sexual misconduct by the appellant on the occasion referred to in the fourth count and the learned trial judge ruled that there was no case to answer on that count. The appellant was convicted by verdict of the jury on the first, second and third counts. He now appeals against the conviction on each count. The main ground of appeal alleges that the verdicts of the jury are unsafe, unsatisfactory and against the weight of the evidence.
A summary of the allegations
At the time of the alleged offences the complainant was a primary school student in a country school. The appellant was the principal of the school. According to the prosecution case, the appellant befriended the complainant who was being cared for by a foster mother. He acted as a tutor to the boy on behalf of Lutheran Community Care, regularly drove him to and from school and generally formed a close relationship with him. The complainant gave evidence that the appellant took him on camping and fishing trips during which the offences took place. The appellant denied committing the offences charged and stated in evidence that at no time did he sexually abuse the complainant.
The offence of indecent assault which is the subject of the first count is alleged to have taken place during a camping trip to Paringa which, according to the complainant’s evidence, was during school holidays in 1995. The appellant took a tent and he and the complainant slept in it for approximately a week. He said that on the second night the appellant encouraged him to drink about two and a half cans of beer. He said the effect of this was to make him “dizzy” and he went to bed. Some time later he awoke and the appellant was playing with the complainant’s penis. According to the complainant he soon went back to sleep. He said this incident was repeated nearly every night of that week.
Then there was a trip to Ardrossan. The prosecution relied on an incident which is alleged to have taken place on this trip in support of the second count. The complainant said that he and the appellant stayed in a cabin at a caravan park. It was in about August 1996. The appellant slept in a double bed in the cabin and the complainant slept on one of the bunk-beds. The complainant said that the appellant’s mother and her partner also went to Ardrossan on this occasion but they did not travel there with the complainant and the appellant. The complainant said he saw them for the first time on the trip at a hotel in the town. He said that on this evening he, the appellant and the appellant’s mother and her partner, went to the hotel for a time before he and the appellant went back to the caravan park. They arrived at the caravan park at about 8.00 pm. He said the appellant gave him some white wine and lemonade which he had purchased at the hotel. He went to bed and was later awoken by the appellant who was leaning over him and sucking his penis. According to the complainant the appellant told him he would kill him if he told anybody.
The incident which is the subject of the third count is alleged to have taken place on the occasion of a trip made by the appellant and the complainant to Butler’s Beach. According to the complainant the trip took place during school holidays in 1996 and they stayed for about a week. They slept in a campervan belonging to the appellant’s mother. The appellant and the complainant were alone on the trip. The complainant said that on the first night they were at Butler’s Beach the appellant gave him some beer to drink. The appellant then went for a walk and came back some time later with some rope. He told the complainant to come inside the campervan and he tied the complainant’s hands and legs to poles which supported the roof of the campervan. The complainant said that the appellant then twisted the complainant’s body around so that he was lying on his stomach. According to the complainant the appellant pulled his pants down and rubbed his penis against the boy’s buttocks and groin. The appellant said he would kill the complainant if he told anyone.
The appellant gave evidence at the trial. He said he was 56 years of age and married with three children. He was appointed principal of the primary school at the beginning of 1995. The grades at the school ranged from reception to year 7 but there were less than 30 children at the school. The appellant said he first met the complainant in the early part of 1995. He said that the complainant was crying in the school yard and, when approached by the appellant, the complainant said that he was upset because he wanted his father and was not allowed to see him. The appellant said that some time after this incident he and the complainant had a further conversation. The complainant said that he wanted to do “men’s things” and had never had the opportunity to do so. The appellant said he offered to help the complainant.
At the time of this first meeting the complainant was being tutored privately, but the tutor was unable to continue in this role. The appellant attempted to find a replacement and, when unsuccessful, offered to act as the complainant’s tutor. The appellant agreed that he went on various camping and fishing trips with the complainant but denied that he had sexual contact with the complainant on any occasion.
The main ground of appeal
The main ground of appeal complains that the verdict of the jury was unsafe, unsatisfactory and against the weight of evidence. The ground particularises features of the prosecution case which, according to the submissions of the appellant, rendered the evidence so unreliable as to be incapable of supporting a conviction on any of the counts charged. It is necessary to consider these aspects separately and then evaluate their combined effect against the background of the evidence as a whole.
The history of the complaint
The complainant was aged 10 and 11 years at the time of the relevant events and Mr Birchall, for the appellant, pointed out that there was no corroboration of his version. There was no recent complaint and Mr Birchall stressed that, when first questioned by the police, the complainant denied any sexual misconduct by the appellant. The complainant agreed that he was first spoken to by Detective Adcock about this matter in April 1997 and that he told the police officer that he had not been interfered with sexually by the appellant. In re-examination the complainant said he was nervous about speaking to Detective Adcock as he did not know him. He did not feel he could confide in a police officer who was a stranger. However he said that the local police officer, whom he knew, spoke to him in August 1997 and it was then that he made the allegations of sexual misconduct against the appellant. He said that the local police officer was particularly friendly. He also said that the appellant was no longer at the school when he spoke to the local police officer. The denial made by the appellant to Detective Adcock was a relevant consideration for the jury, but it has to be remembered that the complainant was only 13 years of age at the time the police first approached him and he gave an explanation for what he said in his statement to Detective Adcock.
There is a further matter which is relied upon by the appellant in support of his argument that the late complaint detracted from the complainant’s version. There was a suggestion in the evidence of sexual abuse of the complainant by his mother before he was taken into foster care. The complainant’s foster mother gave evidence that on some occasions the complainant would have dreams and he would come into her room crying and saying that his penis was hurting. On another occasion he was sitting in his room and he said to his foster mother, “My mother will not hurt me in this room”. The complainant was about three years of age when he moved into foster care and he did not return to live with his mother. He was about three and a half years old when he had the dreams and the incident in the room took place before he started going to school. In view of the tender age of the complainant at the time and the vagueness of the evidence, this material falls far short of supporting the appellant’s contention that it discloses knowledge by the complainant of the nature of sexual abuse and the fact that it was wrong. For the same reasons it provides little support for the appellant’s argument that the complainant was not too shy to report episodes of sexual abuse.
Lies told by the complainant
Counsel for the appellant then pointed out that, in addition to denying to Detective Adcock that the appellant had sexually abused him, the complainant told lies on three separate issues in the case. The first was when Ms Boord, a solicitor in the Office of the Director of Public Prosecutions, interviewed the complainant on an occasion after he had given his statement. The complainant told Ms Boord that, on the occasion when the appellant allegedly threatened to kill him if he told anyone about the campervan incident, the appellant produced a knife. When Ms Boord pointed out to him in the course of the same interview that he had not mentioned this in his statements to the police, he said he could not remember a knife.
The other lies to which attention was directed by Mr Birchall arose out of evidence given by Mr Mole, a social worker, who visited the complainant from time to time. There was a previous aborted trial of the appellant in relation to these matters and, at that trial, the complainant was asked whether Mr Mole had talked to him about alcohol on any of the occasions on which he visited him. The complainant said he had no such discussion with Mr Mole. At the second trial, however, the complainant agreed that Mr Mole did mention alcohol. The complainant agreed in cross-examination that Mr Mole had found a bottle of home-made beer in the complainant’s room and had spoken to him about it. He also agreed that he told Mr Mole on this occasion that he had been getting drunk since he was seven. The complainant denied making that comment when cross-examined at the earlier trial. He agreed with counsel at the previous trial that what Mr Mole had said was a lie. The complainant said that on the occasion he was asked about this topic at the previous trial he was confused and tired. In re-examination he said he was under cross-examination for three days during the first trial.
The telling of these lies by the complainant was an important matter for the jury to consider when evaluating the complainant’s evidence. The trial judge referred to them in the course of her summing-up. It was relevant also for the jury to take into account the age and level of maturity of the complainant. Despite the relevance of the lies in assessing the complainant’s evidence, however, I do not think it can be said that, of themselves, they rendered his evidence so unreliable as to be incapable of acceptance by the jury.
The attitude of the complainant towards the appellant
Next, it was argued that the complainant’s conduct towards the appellant and generally was inconsistent with the occurrence of any sexual misconduct by the appellant towards the complainant. It was pointed out that the complainant continued to go on fishing trips with the appellant over the period when the alleged conduct took place; that the complainant chose to confide in the appellant about the after effects of an operation on the complainant’s penis; and that a video filmed during the Paringa trip demonstrated that the complainant appeared quite happy despite the alleged conduct of the appellant on this trip.
In similar vein, the appellant relies upon written comments made by the complainant in a Father’s Day card (P5) written in September 1996, a document entitled “My Best Friend” (P4), a document dated 3 September 1996 (D20) and a project entitled “The Fishing Trip” prepared by the complainant when he was in grade 6 (D16).
In the Father’s Day card the complainant referred to the appellant as “Dad” and signed it “your Son”. In the document P4 the complainant referred to the appellant as his best friend. He said he liked the appellant because he cared for him and helped him when he was sick. He said he liked going fishing with the appellant. In the document D20 the complainant said that one of his favourite places was Butler’s Beach and that the appellant was special because he took care of him. He also said he wished he could live with the appellant. The project D16 consists of photographs and comments by the complainant about the fishing trip at Ardrossan.
In my view, none of these matters are necessarily inconsistent with the complainant’s version. It is common ground that the appellant took a particular interest in the complainant. He organised fishing and camping trips for the two of them and he assisted the complainant after his operation. A very close relationship developed between them and it is understandable that this would have been appreciated by someone with the complainant’s deprived background. Furthermore, he was a child of approximately 11 years of age who was being given considerable attention by his school principal. The complainant said in evidence that he did not know whether what the appellant was doing to him sexually was right or wrong. On the prosecution case there was a gradual escalation of the sexual interference which developed into a course of conduct. In these circumstances, it was open to the jury to accept the submission put by the prosecution at the trial that the complainant appreciated his involvement with the appellant despite the sexual conduct alleged and that his demeanour on the occasions referred to and his attitude towards the appellant were not inconsistent with an ongoing course of sexual interference by the appellant.
Inconsistencies
Mr Birchall submitted that the complainant’s evidence in relation to each count in the information disclosed inconsistencies which cast serious doubt on the veracity of the complainant version. The inconsistencies are discussed under the headings of the counts in the information.
First count
Apart from relying on the demeanour exhibited by the complainant in the video filmed while they were at Paringa and his demeanour in still photographs which were tendered, Mr Birchall said the appearance of the complainant in these exhibits did no support his version that he felt “groggy” after drinking the beer given to him by the appellant. Mr Birchall referred also to the complainant’s evidence that he approached the appellant after the Paringa trip when he wanted assistance to change bandages on his penis following his operation and that the appellant did assist in this respect.
It is unlikely, in view of the amount of alcohol which the complainant said he consumed on each occasion, that any after effects would have been apparent in the video or photographs filmed or taken the following day. As for the other matters, I have already suggested that a continued close association with the appellant is not necessarily inconsistent with ongoing sexual abuse.
Mr Birchall made some other criticisms of the complainant’s evidence in relation to this count, but it is my view that they do not raise serious concerns about the veracity of the evidence.
Second count
I have said that the appellant’s mother and her partner were in Ardrossan at the time of this alleged offence. They travelled there separately. The appellant said in evidence-in-chief that he and the complainant went to a hotel on the first night and saw the appellant’s mother and her partner there. The complainant denied in cross-examination that the appellant’s mother and her partner left the hotel at the same time as the appellant and the complainant. He said that the appellant’s mother and her partner drove to the caravan park subsequently but he could not remember whether the appellant’s mother came around to the cabin in which the appellant and the complainant were staying after she returned to the caravan park.
In his statement to the police, the complainant did not mention the appellant’s mother and her partner being in Ardrossan at the time of the incident. However, there seems to have been no reason for him to deliberately withhold this information. Under cross-examination at the first trial the complainant had said that the appellant’s mother had not come around to their cabin.
The complainant agreed in cross-examination at the second trial that he was fairly definite that the appellant’s mother had not come to the cabin when asked about this at the previous trial. However at the second trial he said he could not be sure whether or not she visited the cabin. I do not regard this as a significant discrepancy. There is no doubt that there was an occasion when the appellant and the complainant shared a cabin at Ardrossan. The question as to whether the appellant’s mother and her partner were in Ardrossan at the same time and whether the appellant’s mother visited them in their cabin for a short time were events unconnected with the alleged sexual abuse and, as such, would not necessarily remain in the memory of a child of the complainant’s age.
The complainant said that the appellant took wine and lemonade from the hotel on the evening of the incident at Ardrossan. The appellant and his mother denied that this was so. The appellant’s mother also said she did not see any alcohol in the appellant’s cabin the following morning. The prosecution did not specifically challenge the appellant’s mother in cross-examination on this issue, but there may be a number of reasons why she did not see any alcohol taken from the hotel or in the cabin on the following morning. It was for the jury to decide whether her evidence was accurate in this respect and whether, in any event, she would have seen the alcohol in the appellant’s possession if he had taken it from the hotel.
There was doubt in the complainant’s mind as to whether this trip took place in March or August 1996. The complainant also said he was uncertain about the length of the trip. If it had been suggested that the trip did not take place at all, these matters may have been of more significance. However, the discrepancies and other criticisms relied upon by Mr Birchall in the course of his submissions on this count do not have the potential to undermine the complainant’s version.
Third count
Mr Birchall made a number of criticisms of the complainant’s evidence in relation to the third count, the alleged incident in the campervan at Butler’s Beach. The complainant said that the trip took almost a week. He gave different versions in his statements and evidence as to what night during the trip the incident took place. In the first trial the complainant said he slept on the left side of the campervan and in the second trial he said he slept on the right. He also gave different versions as to which of the two beds he was lying on at the time of the incident and at what time the incident took place. Mr Birchall pointed to further discrepancies as to what happened immediately prior to the incident, what time of the year the incident took place, how many pieces of rope were used to tie him up, where the rope came from, how many poles there were in the campervan and how he was lying during the incident. It was also pointed out that the complainant did not refer to being twisted over in the course of the incident until the second trial.
Again these discrepancies were important matters for the jury to take into consideration. They were referred to in the addresses of counsel and in the trial judge’s summing-up. However, it is my view that they were not of such a degree as to require the conclusion that no reasonable jury could act on the complainant’s version.
The appellant’s alleged failure to distribute child protection information
As part of the appellant’s case that the convictions were unsafe and unsatisfactory, Mr Birchall referred to a number of exhibits which consisted of child protection information circulated by the Education Department. These exhibits consisted, in part, of posters encouraging children to report abuse to the authorities. Accompanying letters from the Education Department requested school principals to display the posters and encouraged teachers to discuss their contents with the students. Included in the material were copies of a document entitled “How To Protect Your Child From A Paedophile”. This was intended for distribution to parents and gave hints on various types of suspicious conduct to look out for and suggested approaches for giving instructions to children in relation to precautionary measures which might be taken to avoid placing them at risk of sexual abuse. A video entitled “Kids Have Rights” was also sent to school principals so that it might be shown to pupils. This video was not tendered, but reference was made to it in the course of evidence.
According to the prosecution case, the appellant received this material in his capacity as a school principal but did not display the posters; nor did he distribute the document concerning paedophiles to parents. It was alleged that he did not show the video to the children. There was some dispute on the evidence as to the extent that the posters were displayed and whether the video was shown, but it was open to the jury to conclude from the evidence that the appellant had decided not to display or distribute this material in the manner indicated in the instructions which accompanied it. If the appellant had been interfering with the complainant sexually over the relevant period, then it was open to the jury to conclude that he had a reason for not distributing or displaying material relating to child molesters.
Mr Birchall argued that the evidence was inadmissible or, alternatively, that it should have been excluded in the exercise of the court’s discretion. In my view the evidence was admissible for the purpose to which I have referred. I do not agree with the submission that its probative value was outweighed by its prejudicial effect.
A further ground of appeal is related to this topic. The complainant was asked in examination-in-chief whether the appellant showed him the video “Kids Have Rights”. He denied this assertion. In cross-examination it was put to the complainant that the appellant had shown him the video twice; once when he was by himself, and on another occasion when the appellant showed it to the complainant and other grade 6 students. The complainant denied that it was shown in either set of circumstances.
The cross-examination in relation to the occasion on which it was alleged other students had been shown the video prompted the prosecution to make investigations during the trial and a number of statements were taken from other students who were in grade 6 at the relevant time. These statements were provided to the defence and the prosecution applied to call the witnesses. The trial judge took the view that the prosecution should have appreciated that this was an issue prior to trial and that the calling of the evidence at a late stage in the trial would result in unfairness to the appellant. Her Honour excluded all of this evidence except the evidence of one witness. The prosecution decided not to call this witness.
The grounds of appeal assert that the conduct of the prosecution in conducting these enquiries at this stage was such as to result in an unfair trial. It was argued that some of the statements contain material which materially assisted the appellant, but which could not be relied upon or explored further by him in view of the late notice.
The court was provided with the statements at the hearing of the appeal. Some of the students say they do not remember seeing the video, some say they do not think they have seen the video and two of the students state that they have never seen the video. There is only one statement which provides any semblance of support for the appellant’s version. The student who gave that statement said:
“From what I can recall Part 3 of the video looks familiar but I am not 100 per cent sure. The segments in between the parts on the video where they say ‘Kids Have Rights’ looks and sounds familiar also.
If I did see and listen to this video it may have been between Years 4 and 6 when I was at [the] Primary School.”
The trial judge commented in the course of argument that the provision of the statements to the defence at a late stage in the trial created a significant prejudice to the defence. However, if the prosecution had been permitted to call these witnesses, then I think that any risk of prejudice could have been removed by granting an adjournment to enable the defence to take instructions and consider the appellant’s position. At the time of the ruling, the prosecution case had not closed, although the complainant had given evidence. If necessary, he could have been recalled. But it is difficult to see how any prejudice could have resulted in the events as they transpired bearing in mind that the trial judge did not permit the prosecution to call the evidence. It was open to the appellant to call one or more of the students to give evidence as part of the defence case. After the ruling that the evidence was not to be led, there was some discussion about an application for the discharge of the jury. However, Mr Birchall advised the trial judge that, after taking instructions, this application would not be made.
In my view these events do not give rise to the possibility of unfairness by reason of prejudice to the appellant. I reject the further argument that the failure of the prosecution to make these enquiries earlier and so obtain potentially more reliable evidence has resulted in unfairness which could in any way give rise to a miscarriage of justice. The prosecution was not permitted to call the evidence and, if the defence wished to rely on any aspect of this material they could have applied for an adjournment and made arrangements for the witness or witnesses to be called. In view of the contents of the statements it is not surprising that the defence decided not to call any of these witnesses.
The evidence of the complainant’s foster mother and statements made by the appellant about his relationship with the complainant.
The complainant’s foster mother gave evidence that on one occasion after the second trip to Butler’s Beach the complainant and the appellant were playing on the verandah of the house and she heard the complainant say “Don’t do that to me, or I’ll tell”. She said the complainant was angry when he made the comment. She also said that the complainant became quieter over the time he knew the appellant. Mr Birchall argued that the evidence on these topics was inadmissible and, alternatively, if admissible, should have been excluded in the exercise of the court’s discretion. The evidence on both aspects was not highly probative, but it had some relevance as part of the circumstantial aspect of the prosecution case. It was not demonstrated to the court on appeal why the evidence was more prejudicial than probative. It was material appropriate for the jury to consider and its weight was for the jury to decide.
The same can be said in relation to comments allegedly made by the appellant to various townspeople concerning his relationship with the complainant. According to the evidence, he said on different occasions that he was paid to be the complainant’s guardian; that the church had asked him to be a father figure to the complainant and that he was going to be paid to fulfil this role; and that the tutoring arrangement for which he was being paid included driving the complainant to and from school. These statements were untrue and, if made by the appellant, might well have emanated from a desire on the part of the appellant to give an innocent appearance to what might otherwise have been regarded by others as an unusually close and inappropriate relationship. For these reasons the evidence was properly admitted.
Speculation as to why the appellant left the school
Another ground of appeal alleged that the learned trial judge erred in permitting the prosecution to lead evidence that the appellant left his employment after the police first spoke to him but before the complainant had made his complaint to the police. According to the evidence the police spoke to the appellant on 11 August 1997 and searched his office at the school. The appellant did not remain at the school as principal after this date. The prosecution was permitted to lead evidence from the complainant in re-examination that he spoke to Constable Warren, the local police officer, in August 1997 when he first made the allegations against the appellant. The complainant said that the appellant was no longer at the school at that time. According to the argument, the evidence was prejudicial because it might have led the jury to speculate as to why the appellant left the school before the complainant made his allegations.
In my view the fact that the complainant first made allegations against the appellant not long after the appellant left the school is a relevant consideration when considering the history of the complaint. It was an important part of the appellant’s case that the complainant did not complain at an earlier time. The fact that the complainant did not complain until after the appellant left the school was a relevant counter argument. The inference that he might have been reluctant to complain about the principal of the school while he was still there was clearly open. I think the risk that the jury might indulge in speculation about this matter in a manner prejudicial to the appellant was remote and was a consideration insufficient to outweigh the probative value of the evidence. The trial judge did not warn the jury against speculation on this topic, but, such a warning may well have had the effect of raising some suspicion in their minds. This was a matter best left to the discretion of the trial judge.
Unsafe or unsatisfactory verdicts
The matters which I have discussed thus far are relied upon by the appellant to support the ground of appeal which asserts that the verdicts of the jury were unsafe and unsatisfactory. Another aspect discussed under this heading was the admission into evidence of uncharged sexual acts alleged to have been committed by the appellant on the complainant. I discuss this later in these reasons as a separate issue. A further argument put forward by the appellant was that the taking-up of a knife by the complainant in an argument at home and his familiarity with alcohol might have led him to tell the lie about being threatened with a knife and to make up the allegations about the appellant supplying him with alcohol. I do not regard these matters as adding any weight to the contention that the verdicts were unsafe and unsatisfactory.
I have taken all Mr Birchall’s arguments into account in assessing the evidence for the purposes of the exercise required by M v The Queen (1994) 181 CLR 487. After considering these arguments against the background of the evidence as a whole I have reached the conclusion that it was open to the jury to be satisfied beyond a reasonable doubt that the accused was guilty of each of the offences charged against him. The assertion that the convictions were unsafe and unsatisfactory must be rejected.
A case to answer on the third count
The next ground of appeal asserts that the trial judge erred in rejecting a submission made at the conclusion of the prosecution case that there was no case to answer in relation to the third count. If the jury were satisfied beyond reasonable doubt of the truth and accuracy of the evidence of the complainant on this count then all the elements of the offence charged would have been established. However, Mr Birchall referred to the remarks of King CJ in R v Bilick and Starke (1984) 36 SASR 321 at 337 where his Honour referred to the advice of the Privy Council in Haw Tua Tua v Public Prosecutor [1981] 3 WLR 395 and said:
“The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council, in which the direct ‘evidence’ is so incredible as to amount to no evidence.”
According to Mr Birchall, the case in relation to the third count fell into that rare category of inherently incredible evidence. For the reasons which I have already expressed in relation to the first ground of appeal, it could not be said that the complainant’s evidence was so incredible as to justify a finding that there was no case to answer on this charge.
Evidence of uncharged sexual abuse of the complainant by the appellant
The grounds of appeal assert that the learned trial judge erred in admitting evidence of alleged sexual acts between the appellant and the complainant which were not charged. In the alternative, it is claimed that the trial judge failed to direct the jury as to the proper use to which the evidence of the uncharged acts could be put.
In the course of his evidence concerning the first count at Paringa, the complainant was asked whether anything like the masturbation incident which he described occurred on other occasions during that week and he replied:
“Yes, it was the same nearly every night of the week, I would drink a couple of beers because he said it was good for me, and after that I would go to bed and I’d wake up sometime later and he would be doing the same thing again, my jocks would be down around my knees and he would be rubbing my penis with the palm of his hand.”
The complainant also said that similar touching incidents took place on other fishing trips, but gave no details of those incidents.
Finally, when being asked about the alleged incident of fellatio at Ardrossan, the appellant was asked if that happened on other occasions and he said there were four other such occasions which took place on fishing trips. Again no details were given in relation to those matters.
The learned trial judge admitted the evidence on the basis that these incidents were part of an alleged continuing and escalating course of sexual conduct. Her Honour said that the other acts alleged in relation to the Paringa trip might also be used to negate a defence that the appellant was mistaken or confused as to what occurred with respect to the alleged incident on that occasion. She held that the evidence that other incidents took place could also be relevant to issues arising out of the complainant’s failure to complain about the appellant’s conduct.
The basis upon which evidence of uncharged acts can be admissible in cases of a sexual nature was discussed at some length by the High Court in Gipp v The Queen (1998) 194 CLR 106 and by this court in R v Nieterink (1999) 206 LSJS 135. In the latter case Doyle CJ recalled that in Pfennig v The Queen (1995) 182 CLR 461 at 475 Mason CJ, Deane and Dawson JJ referred to:
“. . . the general principle that it is not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.”
Evidence which would otherwise come within this exclusionary rule may nevertheless be admitted into evidence if it meets the stringent requirements discussed in Pfennig’s case. It is unnecessary for present purposes to consider the various types of evidence which might be so admitted, but in the case of each of these categories the evidence must be probative in some way of the commission of the offence or offences charged. Even when probative, the evidence will not be admitted unless its probative value outweighs the prejudicial effect of the evidence.
Admissibility can only be determined by reference to the circumstances of the particular case. However it is well recognised that, where sexual offences are charged, evidence of uncharged sexual conduct may be admissible because of its probative value in relation to issues such as the failure of the alleged victim to complain or exhibit surprise (Gipp at paras [12], [72] and [73]) or to explain why an incident which might otherwise have been viewed as unlikely was commonplace and accepted conduct between the parties. (Gipp at paras [72] and [73]). I should add that I respectfully agree with the view of Doyle CJ that the relevance of the evidence in this respect will not necessarily be contingent upon the conduct of the defence. Issues of the type which render uncharged acts relevant might fairly arise on the evidence although not specifically raised by the defence.
In the present case the trial judge referred to the escalating and continuous nature of the conduct which was alleged. According to the complainant’s version, it began with a touching of the penis. At a later stage, there were acts of fellatio. Finally, there was the incident in which the complainant was allegedly tied up while the appellant placed his penis against the boy’s buttocks. If, by way of illustration, the appellant had been presented on an information containing only the last count with no reference being made to previous incidents, the alleged conduct of the appellant as the boy’s father figure might have appeared scarcely believable. At the very least, it would have made his lack of complaint less understandable. However, the prosecution alleged a gradual escalation in a relationship in which sexual contact was a common occurrence. In my view, it was appropriate for the jury to hear not only about the prior conduct which was charged but also that those incidents were not isolated occurrences.
The jury were warned by the trial judge as to the use to which the evidence could not be put. Furthermore, I think the proper use of the evidence was explained adequately. Her Honour directed the jury as follows:
“I need to make it clear to you that none of those other matters which [the complainant] mentioned are the subject of specific charges against the accused. It is, therefore, necessary that I direct you as to the use which you are entitled to make of that evidence, if you accept it, and the uses to which that evidence must not be put.
Evidence of prior unlawful conduct is not admissible as proof of an alleged offence. A person is not to be convicted on evidence of a mere disposition or propensity to commit a crime based upon prior unlawful conduct. Evidence of such unlawful conduct can be highly prejudicial to an accused person, so it is vital that you understand the use to be made of that other evidence.
The prosecution alleges that the incidents, which are the subject of the three specific charges, occurred against a background of ongoing sexual misconduct with [the complainant]. The evidence as to those other matters is only admitted to give you some assistance in indicating the relationship that existed between the accused and [the complainant], and, if you like, establishing the context or setting in which the offences with which the accused is charged are alleged to have occurred. There is no other use.”
Her Honour then referred to the requirement that the uncharged sexual misconduct by the appellant would have to be proved in order for it to be used for any purpose. She continued:
“As I have said, the evidence of other occasions on which it is alleged that sexual activity took place is merely given by way of background to assist you in understanding the circumstances in which the charged acts are alleged to have occurred. An act which occurs in isolation might seem to be quite incredible, but, when looked at as part of an ongoing course of sexual misconduct, might well be more easily understood. On the other hand, if you are not satisfied beyond reasonable doubt that the other acts occurred, then they would have no part at all to play in your deliberations.”
In my view the evidence of the uncharged acts of sexual misconduct by the appellant with the complainant was admissible and the directions given to the jury on the topic were adequate.
Complaint is made that the learned trial judge did not warn the jury as to the limited basis upon which the evidence could be considered at the time of its admission into evidence. Although a warning at the time of the admission of the evidence is appropriate (Gipp at para [141]), the fact that it was not given is not sufficient to vitiate the convictions. There was an adequate warning in the summing-up and, in my view, the few generalised references to other conduct of the same type as that alleged in the first and second counts in the information would not have been of such a prejudicial nature as to impact to any significant degree on the minds of the jurors prior to the judge’s summing-up.
For all these reasons I am of the view that the appeal should be dismissed.
LANDER J. I agree with the reasons given by Duggan J and I agree that the appeal should be dismissed.
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