R v S, B - [2006] SASC 319

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v S, B
[2006] SASC 319
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)
18 October 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS
Appeal against conviction - appellant was convicted of three counts of indecent assault and two counts of incest against his young daughter - whether the trial judge gave adequate directions about the standard of proof for evidence of uncharged acts - whether the trial judge gave adequate directions about the permissible use of evidence of uncharged acts - in evidence the appellant said he did not recall the presence of a tree behind which count 1 was said to have taken place - whether the trial judge gave undue emphasis to the prosecutor's argument that the appellant was lying in this respect - held, the trial judge gave the jury appropriate directions in relation to all matters - appeal dismissed.
Criminal Law Consolidation Act 1935 s 56, s 72, referred to.
R v I, K (2004) 89 SASR 406; R v Nieterink (1999) 76 SASR 56, applied.

R v S, B
[2006] SASC 319
Court of Criminal Appeal: Duggan, Sulan and David JJ

DUGGAN J. I agree that the appeal should be dismissed for the reasons given by David J.
SULAN J. I would dismiss the appeal. I agree with the reasons of David J.
DAVID J. The appellant was tried in the District Court on an Information containing five counts. The counts comprised three counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 and two counts of incest contrary to s 72 of Criminal Law Consolidation Act 1935. The alleged victim in each case was the natural daughter of the appellant. The first four counts on the Information are alleged to have taken place in 1983 and the fifth count was alleged to have taken place in 1986. The victim was aged between 13 and 14 years for the first four counts and aged 17 years for count five.
The appellant was convicted on all counts and has appealed against those convictions. He argues that the trial judge misdirected the jury about the standard of proof required for uncharged acts. He also argues that the trial judge erred in the directions he gave to the jury about uncharged acts. Finally, he complains that the trial judge erred in directions he gave to the jury about a potential lie told by the appellant in cross‑examination.
The Charges and the Evidence
The alleged victim (whom I will refer to as “V”) was born in 1969. She is now married and has been so for 15 years. She was born in the United Kingdom and she and her family migrated to Australia in the early 1970s. She has six brothers and one sister. One of the brothers is deceased. When the family came to Australia she was very young and her parents were separated. She has no early memory of her father. V said that her mother had medical problems, which included alcoholism. When V was about five she went to live with her father while her mother was hospitalised. There was then a disruptive period of her life when she was living with either her mother or her father, or other people. She said she attended approximately 16 different schools due to the changes in her living arrangements. At one stage when she was about nine years old she lived with the appellant in the Riverland, along with two of her brothers, the appellant’s girlfriend (whom I will refer to as “K”) and K’s two children. V said that she lived there for about two years before they all moved to another Riverland town. She said that the house in which they eventually lived was near where the ferries embarked. She was about 12 years of age at that time.
V said that in 1983 she was attending high school in the Riverland and was in Year 8. She gave evidence of the appellant doing something to her for the first time. She said that this had occurred in approximately the middle of the year. She described an event where the appellant, whilst in his bedroom with a towel around him, opened the towel and wiggled his body in front of her, showing his penis. She had never seen the appellant naked prior to that event. She gave evidence that he behaved in a similar manner a couple of times after that.
V also gave evidence that on some evenings the appellant would go outside and check animals. He would also put away tools. These tools were used for the building of a houseboat on an adjoining paddock. Normally he would go alone. On one occasion after the incident with the towel, V said that he asked her to come with him. She went outside with him. The appellant kissed her on the mouth in a sexual way. That was the first time that anything of that nature had occurred.
V gave further evidence that the appellant repeated this behaviour on a number of occasions. As time went on this developed into him rubbing his body against her and touching her breasts and vagina, both on the outside and the inside of her clothing. All of these events took place after dark whilst out in the paddock, and mainly behind trees. That evidence was not the subject of any charge.
Count 1
Count 1 is a charge of indecent assault alleged to have occurred on the Riverland property between 1 January 1983 and 30 December 1983. V alleged that certain events occurred behind a gum tree near the house. She said that the tree had a very big trunk and she and the appellant could not be seen from the house. She then described in evidence how he led her over to that tree and was rubbing himself against her. He undid his overalls, told her to lie on the ground and laid on top of her. He asked her to pull down her trousers and underpants, which she did, and he then tried to push his penis into her vagina. He was unsuccessful because K called out from the house verandah on a number of occasions, causing the appellant to stop.
V gave evidence that not long after this incident the appellant gave her a dildo. When he gave it to her, V said that he told her that she should start using it. Her understanding was that she was meant to start inserting it into her vagina to prepare for sexual intercourse.
Counts 2 and 3
Count 2 is a charge of indecent assault alleged to have occurred between 11 October 1983 and 17 October 1983, also at the Riverland property. Count 3 is a charge of incest alleged to have occurred at the same time and the same place as count 2.
In relation to those two counts, V gave evidence of an occasion when she was about to go to school. She said that the appellant invited her to stay home and she agreed. The other children in the house went to school. The appellant then invited her to get changed out of her school uniform, which she did. Both she and the appellant waited for the school bus to leave. The appellant then locked the back and front doors and she went into his bedroom. The appellant asked her to take off her clothes, which she did. He proceeded to have oral sex with her. That behaviour was the subject of count 2. V then had oral sex with him. That was the subject of count 3. She said that during her act of oral sex upon him he ejaculated while his penis was in her mouth.
Count 4
Count 4 is a charge of indecent assault between 11 October 1983 and 17 October 1983 at the Riverland property. V gave evidence that the day after the events which were the subject of counts 2 and 3, whilst K was in hospital both she and the appellant were visiting the houseboat in the adjoining paddock. He pulled down her pants and was indecently rubbing her on the vagina.
V gave evidence that she did not tell anybody about what had happened at that stage because she was too frightened. After the incident which is the subject of count 4 she stopped living with the appellant. She puts that period of time at somewhere near the end of 1983. She and two of her brothers (whom I will refer to as “P” and “M”) then started to live at a suburb in Adelaide with their mother.
V said that when she returned to Adelaide to live with her mother she attended high school. She completed Years 9 and Year 10, leaving half‑way through Year 11. She stopped school at that time because she was pregnant. In 1986, shortly after the baby was born she returned to the Riverland to visit her brother (whom I will refer to as “R”). He was living there with his wife and family. The appellant and K were still living in the same house. She had not seen the appellant from Christmas 1983 until she returned to the Riverland in 1986. She and her baby lived there with her sister (whom I will refer to as “O”). She gave evidence that on one occasion she drove O’s car to visit the appellant and K. She did this on a few other occasions, but nothing untoward happened. At one stage she stopped living with O. She lived alone with her baby.
Count 5
Count 5 was a further charged of incest that alleged between 1 October 1986 and 31 December 1986 the appellant had vaginal sexual intercourse with her. She gave evidence that whilst living in the Riverland in 1986, on one of the occasions that she visited the appellant, he was there but K was not. She arrived at the house with her baby. She gave evidence that the appellant wanted to show her something on a boat that was in the bay. The appellant took her and her baby onto the boat, and in the front end of the boat, having put her baby on a lounge on one side of the boat, she gave evidence of how he had vaginal sexual intercourse with her. After that had taken place he drove her home. After that incident she said that she never saw her father again on a regular basis.
She met her husband in 1986 and they married in 1991. They have three children.
She gave evidence that the first person she told about the sexual abuse that had occurred at the hands of the appellant was her husband, and the first time that she reported it to the police was in 2004.
At the trial the Director of Public Prosecutions called her sister O, but her evidence was of little significance. The prosecution case relied entirely upon V’s evidence.
The appellant gave evidence and denied any form of sexual behaviour or impropriety with V. During the course of cross‑examination it was put to the appellant that in 1983 there was a very big gum tree near the front of the house (referring to the events of count 1). The effect of the appellant’s answer was that he could not remember. The address of the prosecutor on that topic at trial, combined with the trial judge’s summing up, are the subject of grounds 4, 5 and 6. I will return to that when dealing with those grounds.
Grounds of Appeal
Ground 1
The appellant argues that the trial judge erred in his direction to the jury about the standard of proof of the uncharged acts.
Mr Borick QC submits that although the trial judge directed the jury that the uncharged acts must be proved beyond reasonable doubt, it was not done with sufficient clarity. Mr Borick argues that the judge should have told the jury in specific terms that ten or more members of the jury had to be satisfied beyond reasonable doubt that the uncharged acts had been proved beyond reasonable doubt.
In relation to the onus of proof of the uncharged acts the trial judge directed the jury as follows:
However, as a result of the evidence of these alleged uncharged acts, it is necessary for me to direct you as to the use you are entitled to put that evidence if you are satisfied that it is proved, or you are satisfied any of the acts referred to in her evidence are proved. (Emphasis added)
A little later the trial judge said:
In other words, if you are satisfied that some or all of the uncharged acts are proved, it may assist you in understanding how the evidence regarding the incident behind the tree, contained in Count 1, could have arisen, and to understand the incidents which are the subjects of the other charges, and which it is alleged followed the incident. (Emphasis added)
Earlier in his summing up the trial judge gave a traditional direction on the onus of proof and then added the equally traditional direction:
I pause here to mention that during the course of my summing up I may tell you, on occasions, that something must be proved by the Prosecution, or that you must be satisfied, or you should be satisfied of something in respect of the Crown case, then you need to understand, when I use those words, I mean proof or satisfaction beyond reasonable doubt.
In my view, the judge made it clear to the jury that the only uncharged acts that could be used are those which have been proved beyond reasonable doubt. I know of no authority which says that the judge has to go further and explain to a jury the necessity of having a unanimous decision or a majority decision. In fact, I know of no authority or indeed practice which requires a judge to do so in relation to laid charges.
I add further that the direction which was given could be considered to be unduly favourable to the appellant. It seems to be settled authority that if evidence of the uncharged acts is used for the purpose identified by the trial judge in the present case, then the criminal onus is not required: R v I, K (2004) 89 SASR 406.
I would reject that ground of appeal.
Grounds 2 and 3 – Directions in relation to the use the jury could make of the uncharged acts
Mr Tokley, who also appeared for the appellant, argues that the directions given by the trial judge to which the evidence of uncharged acts could be put were inadequate, and also, that those directions were inconsistent with the use to which the prosecution sought to put the evidence. I set out in full the trial judge’s directions on that topic:
Now, in considering that evidence, it is necessary to keep in mind the basic principle that a case must be decided upon the evidence given on oath. What a witness has said out of Court is not evidence in the case.
If a witness has said something out of Court which is inconsistent with her evidence in Court, then you may take the inconsistency into consideration in evaluating the credit of the witness.
The second matter which I wish to raise is this. You know the Accused is charged with three counts of Indecent Assault, and two counts of Incest. It is with respect to each of these charges that you are required to bring in a verdict. I explained to you earlier how you are to deal with each of these charges separately. They are the only charges the Accused faces. However, in addition to the conduct alleged in each of the charges, you have heard evidence of other alleged criminal conduct. Ms [V] told you of seeing her father expose himself in the bedroom in 1983. She said he had done this on two further occasions before the alleged conduct charged in Count 1. She also told you of the conduct of the Accused in touching her on her breasts and vagina outside her clothes, and under her clothes. Again, she said this took place in 1983, before the incident alleged to have occurred in Count 1. These alleged acts are not the subject of any charges.
However, as a result of the evidence of these alleged uncharged acts, it is necessary for me to direct you as to the use you are entitled to put that evidence if you are satisfied that it is proved, or you are satisfied any of the acts referred to in her evidence are proved.
Ordinarily in a criminal Trial, evidence of other alleged criminal conduct does not come before the Jury. In this case, you have heard this evidence because it is potentially helpful to you in evaluating [V’s] evidence. That is, hearing the whole of these allegations may better enable you to assess her evidence. The whole of the alleged course of events provides a context in which it is said that the charged acts occurred.
In addition, the Prosecution also presents the evidence as explaining the background against which the first offence charged came about, and the other offences which are alleged to have followed, where the evidence of [V] regarding, in particular, the first offence but also the following offences, may otherwise appear to be unreal or not fully comprehensible. In other words, if you are satisfied that some or all of the uncharged acts are proved, it may assist you in understanding the incidents which are the subject of the other charges, and which it is alleged followed the incident.
Now, those two discrete matters which I have mentioned are the only ways in which you are permitted to use the evidence of the uncharged acts which were stated by [V] in her evidence. Having directed you on the permissible manner in which you may use the evidence, I now turn to direct you on how you cannot use the evidence.
If you find proved that the Accused was involved in any of the uncharged acts I have already described, you must not reason that the Accused must have committed any of the sexual acts, the subject of the charges in the Information. That would be totally wrong. Such reasoning is not permissible.
Furthermore, it would be wrong to conclude, if you find proved that the Accused engaged in any of the uncharged acts related by [V] in her evidence, that the Accused is the sort of person who would be likely to commit the offences for which he is charged. Remember, it is the evidence presented in proof of each of the charges, which is the critical evidence in this Trial. The evidence of the uncharged acts has only been presented for the purpose of the permissible uses to which I have referred.
Of course, the first step in the process is to determine whether you are satisfied that any of the uncharged acts have been proved before you can use any of them in the permitted ways I have described. I will, again, refer to this evidence, and what you should do in the course of evaluating it shortly. (Name of alleged victim omitted)
It is to be noted that there is no argument about the admissibility of the uncharged acts. No objection was taken at trial, and Mr Tokley concedes that his argument is only concerned about the directions of the trial judge. As I understand Mr Tokley’s argument, the trial judge’s reference to putting the uncharged activities in context is not a basis for which that evidence can be used. He sought support for that proposition by reference to R v Nieterink (1999) 76 SASR 56 at 73 where Doyle CJ said:
Usually it will not be sufficient to speak generally of the evidence as establishing background matters. It is desirable to be quite specific about its proper use, both to help the jury to approach the evidence in the correct manner, and to reduce the risk of an incorrect approach. In a case like this, the term “relationship” should be avoided.
Also in R v I, K at 423 Doyle CJ said:
As courts of appeal have said time and again, in such a case the trial judge should explain to the jury how the evidence can be used, and how it cannot or should not be used. The judge should be as specific as practicable. If this is done it will provide the jury with essential assistance. Undertaking that task also assists in clarity. It is the duty of the prosecutor to assist the judge by identifying clearly, at an early stage of the case, the basis upon which the evidence is tendered, how it is to be used and how it is not to be used.
It is also noted that in R v Nieterink at 65 Doyle CJ also said:
The evidence is, as the judgments state, evidence which places the charged acts in their context, and which might assist the jury in better understanding what would otherwise appear to be surprising or unlikely conduct by the victim, in particular in submitting to criminal conduct or in failing to complain of it, often the relevant failure being a failure to complain to a parent or guardian.
Further on, Doyle CJ says:
As in this case, evidence of uncharged acts will often include evidence of acts that preceded the commission of the first offence charged. This evidence may disclose a course of events leading up to the first charged incident, which enables the jury to understand that the incident did not, as it were, “come out of the blue”. The evidence will also sometimes explain how the victim might have come to submit to the acts the subject of the first charge. Without the evidence , it would probably seem incredible to the jury that the victim would have submitted to what would seem an isolated act, and likewise it might seem incredible to the jury that the accused would suddenly have committed the first crime charged.
The basis upon which the trial judge in the present case explained the use of uncharged acts to the jury is similar to the last example mentioned by Doyle CJ in Nieterink. The trial judge in the present case made it perfectly clear to the jury that in order to understand count 1 they could have regard to those uncharged acts leading to that count. The judge explained to the jury that in doing so they were better able to evaluate V’s evidence and better able to assess her evidence. The trial judge did not confine his remarks by merely referring to “context” and “background”, but fully elaborated on the legitimate use of that evidence. Furthermore, he proceeded to instruct the jury in very clear terms on the impermissible use of the evidence.

Mr Tokley also argues that the directions given by the trial judge about uncharged acts and how they are to be used was different than the way in which prosecuting counsel told the jury they should be used. In her opening when talking about the uncharged acts, the prosecutor told the jury:
It was whilst they were doing the rounds around the house, that he first started to touch her and to kiss her. He started to kiss her on the lips and from there it progressed to touching, firstly on the outside of her clothing, and then underneath her clothing, in the area of her breasts and her vagina. The Crown alleges that he was, in fact, grooming her for what was to come later; that he was getting her ready for the sexual advances that he was to make to her at a later time.
In her closing address she said to the jury:
My submission to you is that this doesn’t just happen by chance in this way, that this is in fact, a concerted effort by the accused to introduce her to the idea of sexual behaviour, and that that is indeed what he is doing, because all of that behaviour then puts in context what he does to her behind the tree on the first count.
Mr Tokley argues that the prosecutor has treated the uncharged acts as evidence of an intention to commit the crime. He particularly emphasises the word “grooming” to support his argument. In other words, the Crown’s submission to the jury as to how the evidence should be used, namely going to the intention of the appellant, is quite different from the judge’s directions.
There might be an argument that there is very little difference between what the judge said and what the prosecutor said. The word “grooming” might be seen as another way to refer to circumstances that lead into the acts which amounted to count 1, as distinct from evidence of intention. However, in my view, if there is a difference it is irrelevant. The trial judge clearly directed the jury how to use evidence of the uncharged acts. The jury was directed to follow the judge’s directions of law.
I would reject those grounds of appeal.
Grounds 4, 5 and 6
As explained by Mr Borick, who argued these three grounds, they relate to the question asked of the appellant in cross‑examination to which he responded that he could not remember the presence of a large gum tree on the property where count 1 was said to have taken place. In her address to the jury the prosecutor said - when referring to the appellant’s evidence about not remembering the tree:
I suggest to you he’s being untruthful with you. He does know there is a tree there. He does know because of course this was a big tree on the banks of the river and it was a tree, I suggest to you, that he tried to have sex behind with his daughter. He chose that tree. It is not just by chance. He didn’t go under the mulberry tree closer to the house, he chose that tree because it was big, it provided cover, it meant you couldn’t be seen from the house, it was a long way away and was dark and he’s prevaricating with you.
Mr Borick argues that the prosecutor should not have been permitted to make those submissions to the jury because she had not put to the appellant in cross‑examination the fact that he had lied about not remembering the tree. He further argues that the trial judge should not have directed the jury about the possibility of the appellant telling a lie on that topic. The trial judge said to the jury in his summing up:
The Accused’s evidence is that he could not recall whether there was a big gum tree on the property, but he said there may have been. It was suggested by Miss Davison, Counsel for the Prosecution, that the Accused was being untruthful when he gave that evidence to you. She asserted, in her address to you, that the Accused does know that there was a big tree on the bank.
You will also recall that during the cross-examination of the Accused, Miss Davison suggested that he was not telling the truth on a number of topics.
You will make up your minds about whether the Accused was telling lies, and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in this case, but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.
Mr Borick argues that in directing the jury in that way he unfairly enhanced the prosecutor’s argument that the appellant had in fact told a lie.
Mr Borick also argues that the judge’s directions give the prosecutor’s argument that the appellant was, in fact, a liar status it does not deserve. He also argues that in her address the prosecutor contrasted mistakes made by V as matters which do not really matter, but elevated mistakes made by the appellant as something more serious. It was put by Mr Borick that that led to unfairness. In my view those arguments have no foundation. It was not necessary for the prosecutor to put to the appellant directly that he was lying about his lack of memory of the tree. She clearly raised the topic of the presence (or not) of the tree when cross-examining the appellant, and her submissions about that evidence and the weight or status to be given to it were quite properly put to the jury. Similarly, her submissions comparing difficulties that V had in her evidence, and how that should be regarded in comparison with difficulties that the appellant had, were matters of argument that the jury could consider. They were no more than that. Once the argument was put by the prosecutor that the appellant may have lied about a particular topic, it was incumbent on the judge to direct the jury accordingly. His direction that the jury could not reason from a lie to evidence of guilt was correct.
I would reject those grounds of appeal.
Conclusion
For all of these reasons the appeal should be dismissed.