R v S, PC - [2009] SASC 380

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v S, PC
[2009] SASC 380
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Nyland and The Honourable Justice White)
17 December 2009
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS
EVIDENCE - ADMISSIBILITY AND RELEVANCY - SIMILAR FACTS
Appeal against conviction – appellant convicted by jury verdict of three counts of indecent assault and one count of gross indecency – whether trial Judge erred in admitting as evidence an alleged admission – whether trial Judge erred in admitting evidence to establish that the appellant had a sexual interest in the complainant – whether verdicts of jury unsafe or unsatisfactory.
Appeal dismissed – evidence of conversation containing alleged admission admissible – evidence of conduct relevant and admissible to prove appellant's sexual interest in and grooming of complainant – evidence of complainant not so unreliable as to render verdicts unsafe or unsatisfactory.
HML v The Queen (2008) 235 CLR 334; Pfennig v The Queen (1995) 182 CLR 461, considered.

R v S, PC
[2009] SASC 380
Court of Criminal Appeal: Duggan, Nyland and White JJ

DUGGAN J: The appellant has appealed against conviction on three counts of indecent assault and one count of gross indecency.
It was alleged that the offences took place between 1985 and 1990. The complainant was aged between 11 and 15 years throughout this period. According to the prosecution case, the offences were part of a course of conduct by the appellant.
The complainant met the appellant through the Scout movement. The appellant was a Scout leader in the complainant’s Scout troop. The appellant became friendly with the complainant and his family. He took the complainant away on camping trips, some of which were arranged by the Scouting Association and others were private trips. It was alleged that the complainant was sexually assaulted on these trips and, on occasions, at the appellant’s house.
The first ground of appeal complains that the trial Judge erred in admitting into evidence an alleged admission to another member of the Scout movement, BM.
BM said in evidence that she was a former group leader of the Scout group to which the complainant belonged. She said that in about 1990 she received a telephone call from AL, who was then a District Commissioner in the Scouting movement. She said he told her that there had been an allegation of improper conduct by the appellant against the complainant.
According to BM she went to the appellant’s place of work and told him that an allegation had been made that he had molested the complainant. She said he replied, “Yes, it’s true”. She said she left after a short conversation and later advised AL of what had transpired. The witness was asked in cross‑examination whether she had been told by AL during the telephone conversation that the complaint arose from an incident involving the appellant in the shower. She denied that this was the case. She agreed that AL had told her not to make contact with the appellant.
AL gave evidence for the prosecution. There was no objection to his evidence. It is clear that the defence wished to rely on it as casting doubt on BM’s evidence. He said that in late 1989 he received information that the complainant had been seen in a shower with the appellant at the appellant’s home. He said he rang BM and informed her of the allegation. He asked her not to make contact with the appellant at that stage. He said he told her the reason for this was that he wanted to contact Scouting Headquarters to get advice as to what should be done. According to AL, BM later rang him and told him that she had put the allegation to the appellant. AL said BM told him that the appellant had “basically admitted it”.
The trial Judge admitted the evidence of the alleged admission by the appellant after a voir dire hearing during which BM gave evidence.
Mr Algie SC, for the appellant, submitted that the evidence should have been excluded in the exercise of the Judge’s discretion. His principal submission was that the evidence was inherently unreliable.
First he submitted that the alleged admission bore no relationship to any of the counts in the Information. That is true, but the prosecution alleged a course of conduct over a period which included the time of the making of the alleged admission. An admission by the appellant that he had molested the complainant was of probative value in relation to this course of conduct.
Then it was argued that the evidence of the conversation was ambiguous in that the appellant may have done no more than acknowledge the allegation. The effect of the conversation was a matter for the jury, but it was clearly open to the jury to conclude that the appellant had admitted that he had molested the complainant. There was no doubt in BM’s mind as to the effect of what was said to her.
Mr Algie pointed out that no notes were made of the conversation. However, it was only a short conversation and the details were not likely to have been forgotten by the witness.
The trial Judge gave the following directions in relation to the conversation:
However, as you know, and as I have mentioned already and to which I will return, if you are satisfied about it, BM did confront the accused with a general allegation that he had molested [the complainant] and, according to her evidence, the accused said it was true. If you are satisfied that that general allegation was put to the accused and that he said it was true you would be entitled to conclude, if you thought fit, the accused had admitted molesting [the complainant], although not to any specific events.
…
I want to give you some specific directions about the alleged conversations between the accused and BM. In about 1990, BM told you she received a non-specific allegation about the accused from AL, the District Commissioner for the Scouts at that time. BM told you she was told of an allegation that the accused had molested [the complainant]. You might remember that she told you that she was shocked about it, even that suggestion, she was shocked about the allegation, and although asked not to confront the accused personally about it, nonetheless went to his shop and did just that. On her account when that general allegation was put to the accused he said ‘Yes, it’s true’.
You know also that AL was called. AL said it was a specific allegation about which he heard which he passed on to BM. He is aware that she spoke to the accused and in effect she reported back to him that the accused admitted it. The specific allegation about which he had learned was that the accused had been seen in the shower with [the complainant]. It is up to you to say what you make of that evidence. Was there an admission that the accused had ‘molested’ - and I put that word in inverted commas - [the complainant] or was it specific, in that he acknowledged that he had been in the shower with [the complainant]. There is obviously a difference between the two. On the prosecution case, it says whichever it was, it was very significant and, indeed, should be very significant to you in your decision in this case.
I give you this final direction before we have a break. Before you could use any admission against the accused you would need, indeed, to be satisfied that he did in fact make an admission. It’s obviously a matter for you and a matter for you to assess what it was that he was asked, what answer did he give and what does that mean.
…
I was dealing with the alleged conversation between BM and the accused. I directed you about what I referred to as BM’s version of that conversation, particularly that as conveyed to her it was a non-specific allegation that she says was conveyed to her by AL. According to her, it was an allegation that the accused had molested [the complainant].
She told you that she was asked by AL not to go and speak to the accused about that, but she resisted that suggestion and went straight around, I think, to the accused’s shop and did, in fact, confront him with that.
On her account, it was - as I have touched upon - the general allegation that ‘it is alleged that you molested [the complainant]’ to which his reply was, according to her, ‘Yes, it’s true’. She told you that that admission to her shocked her and she went on to say that she could not remember what was said after that, but she did say that she was just shocked by the acknowledgment.
Bear in mind that she says that she was asking the accused about something AL said. AL also gave evidence and said that it was a specific allegation that he told her about, namely that the accused had been seen in the shower with [the complainant]. He says he conveyed that to her. Despite his request otherwise, he knew that she was going around there to confront him with that. According to him, she reported back that he admitted it.
There is obviously a difference between those two, in the sense that AL says that he conveyed a specific allegation, BM said it was a general allegation that she said that she got from AL and about which she asked the accused.
As I said to you before the morning break, it is up to you what you make of that evidence. I direct you that you need to take care so far as your consideration of this topic is concerned. BM, for instance - and indeed I suppose AL - are referring to conversations that they had, albeit on an important topic, back in 1990. So they are 18 or 19 years ago from now. There may be questions that you need to ask yourselves about what people’s memories are like after that period of time and whether there is a degree of interpretation of a more expansive conversation that becomes reduced to a few lines or one line or a few words. So you need to bear that in mind.
I said to you just before we adjourned if you are satisfied that what the accused admitted to was that he molested [the complainant], that, you may think, supports the credibility of [the complainant] but is not specific. Whatever you do, you need to consider the actual charges that are charged and your verdicts need to be directed towards that and the standard of proof needs to be directed towards those charges.
So if you are satisfied of the conversation as relayed to you by BM, then you may say to yourselves ‘Well, we think that supports the credibility of [the complainant] by the accused admitting to molestation of him’ but you would still need to consider the individual counts. The admission of molestation is no admission of the specific counts.
If you were satisfied, not that the accused acknowledged molestation but that he acknowledged and only acknowledged being in the shower with [the complainant], that of course would be a different admission or acknowledgment. It would still be relevant to [the complainant]’s credibility but would not be of the same order as an acknowledgment or admission of molestation. Nonetheless, it would be supportive, if you took that view, of his credibility but, as I say, not of the same order.
So what the nature of the conversation was and what, if any, admission was made and what that meant and what the words meant is a matter for you. But that is a matter about which you need to take care.
It is clear that the evidence of BM differed from that of AL as to the content of their conversation. The trial Judge drew this to the jury’s attention. However, this conflict was not of such a nature as to render BM’s evidence unreliable. It was a matter to take into account in deciding the content of the conversation between BM and the appellant. The trial Judge directed the jury that care was needed in assessing the content and effect of the conversation. In my view it was unnecessary to go further.
In my view the evidence of the conversation was admissible.
The next ground of appeal claimed that the trial Judge erred in allowing evidence to be given that the appellant arranged for the complainant to be photographed naked and that the appellant retained the photographs for his own purposes.
The complainant gave evidence that the appellant told him he had spoken to the complainant’s parents about having photographs taken of him. It was explained to the complainant that the photographs were to depict changes in his body from a young age to puberty. Photographs were taken on three or four occasions. The complainant was naked when the photographs were taken. The complainant was asked to adopt various poses. However, the poses were not of a pornographic nature. The complainant’s father said in evidence that he gave permission for the photographs to be taken. He was given the same reason for the taking of the photographs as was given to the complainant.
A further ground of appeal complains of the admission into evidence of an incident which occurred when the complainant visited the appellant’s house. The complainant said in evidence that he stayed at the appellant’s house from time to time. He said he was sexually abused on some of these occasions. He was asked whether, on any of these occasions, the appellant had shown him magazines which contained pictures of naked people. He replied:[1]
[1] T 67.
I ended up seeing magazines of nudist colonies, natural magazines where there are pictures of people at nudist colonies, those sorts of things. I don’t remember how that came about, whether I saw one on the table or he brought one out, I don’t know how that initially started. But yes, I ended up seeing those type of magazines.
The trial Judge gave the following directions on these incidents:[2]
The prosecution case, more specifically, is that the accused came to see [the complainant’s] family as a family that were struggling in a number of ways: financially, emotionally and that with [the complainant’s mother’s] illness and [the complainant’s father’s] long working hours, [the complainant] became the subject of the accused’s sexual interest.
Whether the accused had such a sexual interest in [the complainant] is a matter for you. But I direct you that you can only use what is said to be that sexual interest in aid of proof of the counts if that sexual interest is a matter about which you are satisfied.
Initially it may have started out with the accused helping the family but it progressed. [The complainant] would sleep over at the accused’s house. [The complainant] would be given treats, such as eating out. The accused would leave magazines about that were of naked people, perhaps nudist colonies and the like, portraying that as normal everyday conduct.
[The complainant] would, on his evidence, sleep over at the accused’s house, sleep in the same bed as the accused, shower with the accused, such that he became, over time, over some years, a compliant sexual toy for the accused.
On the prosecution case, this sexual interest took the form of taking photographs of [the complainant] naked, supposedly for artistic purposes. The prosecution case is that even if [the complainant’s father] came to know of these photographs in advance, the prosecution says what possible artistic merit was there in having a friend of the accused take photographs of [the complainant] naked over some years to show changes through puberty? On the prosecution case, that was a blatant manifestation of the accused’s sexual interest in [the complainant].
I direct you that unless you are satisfied about that being the purpose of those photographs, you should ignore them.
The defence put to the jury that these incidents did not indicate that the appellant had a sexual interest in the complainant. Defence counsel pointed out that the complainant’s parents were aware of the photographing of the complainant because it had been discussed with them.
[2] AB 56.
At the hearing of the appeal Mr Algie referred to HML v The Queen.[3] In that case HML was charged with two counts of unlawful sexual intercourse with a person under 12 years. The complainant was the daughter of the appellant. The case involved allegations that HML committed uncharged sexual acts against his daughter. However, the prosecution led evidence of other acts which, whilst not amounting to the commission of an offence, were said to be relevant in various ways including that they demonstrated the appellant’s sexual interest in his daughter. This conduct included an allegation that HML encouraged his daughter to perform acrobatics naked whilst he filmed her and that he bought her items of underwear known as “G-strings”.
[3] (2008) 235 CLR 334.
Hayne J categorised these acts as “discreditable conduct” and expressed the view that their admissibility was governed by the test in Pfennig v The Queen;[4] that is to say that they were to be admitted only if they supported the inference that the accused was guilty of the offence charged and were open to no other innocent explanation.[5]
[4] (1995) 182 CLR 461.
[5] (2008) 235 CLR 334 at [113].
Mr Algie placed particular reliance on the following passage in the judgment of Hayne J:[6]
Evidence of other conduct which did not constitute any offence, but which it is alleged demonstrated the accused's sexual interest in the complainant (as was the case with HML), may present more difficult issues. It may be harder to decide whether, in the context of the prosecution case, there would be no reasonable view of that evidence consistent with innocence. Deciding whether the evidence, if accepted, demonstrated the accused's sexual interest in the complainant will, in some cases, turn upon the construction put on the conduct in question. That conduct may be equivocal. If interpreting that conduct as showing sexual interest depends upon the prior acceptance of other evidence of separate events demonstrating that interest, evidence of the conduct would not be admissible.
(Emphasis added)
Mr Algie said that if these incidents were looked at in isolation and did not rely upon findings with respect to other evidence then they could not of themselves be said to be other than equivocal.
[6] (2008) 235 CLR 334 at [111].
In my view Hayne J’s remarks do not support the proposition that these items of evidence are to be considered in isolation. In a later passage in his judgment, when dealing with the application of the test in Pfennig, Hayne J stated:[7]
But as pointed out in Phillips v The Queen (2006) 225 CLR 303 at 323-324 [63], due weight must be given to the necessity to view the similar fact evidence in the context of the prosecution case, and the test of admissibility of that evidence must be applied by the trial judge on certain assumptions. In particular, when considering admissibility, it must be assumed that the similar fact evidence would be accepted as true, and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury.
[7] (2008) 235 CLR 334 at [170].
In the same case Heydon J, when dealing with the G-string evidence, said:[8]
By itself it was only probative, and then not strongly, of motive in the sense of sexual desire, as distinct from a propensity to act on it. It may therefore arguably not have been relevant. But an assessment of its relevance is not to be undertaken in isolation from the other evidence. Taken with all the other uncharged acts evidence, it was relevant to prove a disposition to act on the sexual attraction experienced by HML.
[8] (2008) 235 CLR 334 at [279].
The actions of the appellant in arranging for the complainant to be photographed naked are to be considered against the background of the prosecution case.

According to the complainant the appellant “liked to be naked”.[9] On the complainant’s version he and the appellant were naked on occasions for what might be regarded as non‑sexual purposes but he claimed that this led to sexual contact.
[9] T 69.
The complainant described an occasion when he and the appellant went out on the River Murray in a dinghy. He said they ended up on the other side of the river. His evidence continued:[10]
[10] T 69.
A:I remember us not having our clothes on.
Q:Do you recall how that came about.
A:Sort of something that happened naturally. He was the type of person who liked to be naked so we just ended up being naked.
Q:So both of you have your clothes off.
A:Yes.
Q:Do you recall where your clothes were.
A:I remember them being up on a log or something like that on the river bank.
The complainant then described how the appellant became sexually aroused and masturbated the complainant.
The complainant also said that on occasions when he was staying at the appellant’s house the complainant would be in the shower and the appellant would shower with him and masturbate him.
It appears that the appellant intended to arrange for the series of photographs to be taken of the complainant over an extended period of time while the complainant grew up. They were to depict the complainant in various poses while he was naked. This was against the background of the prosecution case of a course of conduct involving sexual abuse extending over a lengthy period. When regard is had to these circumstances and the reason put forward by the appellant for the taking of the photographs, it is my view that there was no reasonable view of the evidence consistent with an innocent purpose. In other words the Pfennig test was satisfied and the evidence could be used to demonstrate the appellant’s sexual interest in the complainant.
In my view the evidence of the magazines being left lying around while the complainant was in the appellant’s house was also relevant and admissible. It was open to the jury to find that this was part of a grooming process undertaken by the appellant. According to the prosecution case the appellant took advantage of the complainant’s visits to the house to shower with him and to use that as an excuse to engage in sexual abuse. Of course, to leave magazines of this nature lying around was not unlawful and, considered by itself, I doubt that it would come within the category of “discreditable conduct” referred to by Hayne J in HML. However, if the jury found that it was proved that these actions were intended for the purpose of grooming the complainant for sexual activity they were clearly probative of guilt.
I have reached the conclusion that both the activity of having the complainant photographed and the leaving of magazines lying around in the circumstances described were admissible.
The final ground of appeal asserts that the verdicts of the jury are unsafe and unsatisfactory and should not be permitted to stand.
This was based upon the evidence given by the complainant relating to three incidents.
The complainant was asked about the incident charged in the first count in examination‑in‑chief. This was a charge of indecent assault which, on the prosecution case, was committed between 26 May 1985 and 26 November 1985. The complainant said that he went to stay at the appellant’s house because he was going camping the next day. He said he went to the house on a Friday evening. He said he slept in the appellant’s bed. According to the complainant the appellant masturbated him while they were in bed. In cross‑examination the complainant was asked where the camp was held and he said:[11]
Somewhere near Lower Light, I think.
He was asked whether that was the only time he had been to this particular camping area and he said:[12]
That I remember, yes.
Later he was asked whether the first time he stayed at the appellant’s place was to go to a camp near Lower Light and he said “Yes”.
[11] T 101.
[12] T 101.
There was further questioning on this evidence later in the cross‑examination:[13]
Q:Just so we are clear; I think it is the case or is your evidence that the only time that you’d ever been to the camp at Lower Light was on this occasion, is that right?
A:The only time I recall, yes.
And later:
Q:And you’ve been there (in the vicinity of Lower Light) only once, I suggest. You don’t disagree with that.
A:May have only been once.
[13] T 104.
The complainant’s mother was cross-examined about an occasion when the family went to a camping area at Buckland Park near Lower Light to see Halley’s comet:
Q:Do you recall an occasion when you and your husband and your children, including [the complainant] went to the area of Buckland Park.
A:I honestly don’t know.
Q:See if this helps you: it was on Friday evening, I suggest, when you and your husband and the children went up to a camp area at Buckland Park to see Halley’s comet.
A:That’s correct.
Q:You recall that.
A:I do recall that now.
Q: It was a bit of an occasion because there were lots of families who went up there on that Friday evening to a camping area for the purposes of seeing Halley’s comet.
A:That’s correct.
Q:Again, if I can try to put this occasion into the time frame: am I correct if I suggest that this occasion when you were trying to see Halley’s comet happened about two to three months before you had your operation in May of 1986.
A:I remember going with my children but I can’t put a time frame on it.
Q:Are you able to say it is more likely to have been before you had the operation as opposed to after, or you just can’t say.
A:No.
Q:Apart from it being a good night out, in that people had barbecues and that sort of thing; is that right.
A:I just remember being out there with the telescopes.
Q:Even with the telescopes, I think because of the cloud cover you couldn’t see Halley’s comet; do you agree.
A:Yes.
Q:Just a couple of other things: you mentioned that [the appellant] and your family were good friends and you would go to each other’s places for meals and barbecues.
A:Yes.
Q:You had met his sister and members of her family.
A:Yes.
According to the appellant’s argument, the complainant attended a camp at Lower Light on only one occasion and that was when his family were present. It could not have been the occasion when he went to the appellant’s house and then went to a camp on the following morning.
However, it is apparent from the cross‑examination of the complainant set out above that there was some uncertainty in his recall as to whether the trip with the appellant was the only occasion on which he had been camping in this area.
The next incident concerns the offences charged in Counts 2 and 3 of the Information. They are alleged to have occurred on a fishing trip on the River Murray. This is the occasion on which the complainant said that he and the appellant went to the other side of the river. He said that the vegetation around the riverbank was “fairly dense, there were like a lot of skinny trees, big logs… had lots of reeds around the water’s edge”.[14]
[14] T 70.
In cross-examination the complainant was shown a photograph, Exhibit D7, and asked whether it depicted the area on the Murray River where he went fishing with the appellant. He replied:[15]
I don’t – it looks – it does look like where we were fishing, yes.
He agreed in cross-examination that the photograph “may have” been taken during the trip to the River Murray. It was put to him that the photograph did not show dense vegetation and he replied that the vegetation was there when the incident took place. The evidence as to whether the photograph depicted the precise area referred to by the complainant as the location where the alleged offence took place is vague.
[15] T 99.
The next incident raised in relation to this ground of appeal concerns the offence charged in Count 4. According to the prosecution case the appellant committed this offence in a miner’s hut known as “The Diggings” which is situated at Cockatoo Valley. The appellant took the complainant on a camping trip with the appellant’s sister, her two children, her sister‑in‑law and her sister‑in‑law’s three children. The complainant said he slept on a mattress in the kitchen with the appellant. He said that the appellant masturbated him while they were lying on the mattress.
In cross-examination the complainant agreed that at one stage during their stay in the hut, K J, the appellant’s brother‑in‑law arrived.
K J was called to give evidence by the defence. He said that everyone slept in the lounge room and that no-one slept in the kitchen. The defence also raised the question whether the mattress would fit in the kitchen.
Arguments were advanced on either side in relation to this issue. It was open to the jury to prefer the evidence of the complainant. The existence of the conflict of evidence, of itself, cannot cast doubt on the safety of the conviction on this count.
In my view the three matters relied upon in support of this ground do not establish that the evidence of the complainant was so unreliable as to render the verdicts unsafe or unsatisfactory.
I would dismiss the appeal.
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by Duggan J.
WHITE J: I agree that the appeal should be dismissed. I agree with the reasons of Duggan J.