R v S, PC - [2008] SASC 285

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v S, PC
[2008] SASC 285
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice Kelly)
29 October 2008
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - ADMISSIBILITY - OTHER CASES
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CHARACTER AND PREVIOUS CONVICTIONS - RELEVANCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appeal against convictions for three counts of indecent assault and one count of gross indecency - prosecution alleged a course of sexual conduct by the appellant towards the complainant which included uncharged acts - complainant gave evidence that the appellant also arranged for naked photographs to be taken of the complainant by a professional photographer, supposedly to depict how his body was changing through puberty - defence counsel said the evidence suggested an innocent purpose and submitted the jury should be directed they should not use the evidence for any purpose - prosecutor submitted the evidence tended to establish that the appellant had a sexual passion towards young boys - prosecutor made this same submission to the jury in closing address and suggested the motivation for having the photographs taken was for the accused's own gratification - the summing up left it open to the jury to use the taking of the photographs as evidence of a general propensity to commit offences against young boys.
Held: It was necessary to give the jury a clear warning that the evidence of the photographs could not be used for any purpose based on general propensity reasoning - discussion as to whether the evidence could have been led to establish a particular sexual interest by the appellant in the complainant - appeal allowed - retrial ordered.
Criminal Law Consolidation Act 1935 (SA) s 58A(1), referred to.
HML v The Queen (2008) 245 ALR 204; R v Turney (1990) 52 SASR 438; Makin v Attorney General (NSW) [1894] AC 57; B v The Queen (1992) 175 CLR 599; Pfennig v The Queen (1995) 182 CLR 461; Thompson v The King [1918] AC 221; The Queen v Von Einem (1985) 38 SASR 207, considered.

R v S, PC
[2008] SASC 285
Court of Criminal Appeal: Duggan, Anderson and Kelly JJ

DUGGAN J: The appellant was found guilty by a jury of 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 is a male person born on 26 May 1974. The appeal is against the convictions recorded.
The complainant first met the appellant through the scouting movement. The appellant became friendly with the complainant’s family. The prosecution case alleged a course of sexual conduct by the appellant towards the complainant which included uncharged acts. According to the prosecution case some of the sexual acts took place on camping trips and others occurred at the appellant’s house.
The prosecution led evidence from the complainant that, on occasions when he was at the appellant’s house, the appellant arranged for photographs to be taken of him while he was naked. The photographs were taken by a professional photographer. It was explained to the complainant that they were taken in order to depict how his body was changing as he moved through puberty. The complainant did not know what became of the photographs and they were not tendered in evidence. It was not suggested that they depicted the complainant in what might be called pornographic poses.
The complainant’s father gave evidence. He said that the appellant asked him if photographs of his naked son could be taken. He said that he gave permission for this to happen subject to the complainant agreeing. The complainant told his father he had no objection and the photographs were taken.
Before the empanelling of the jury there was argument as to the admissibility of certain items of evidence. In the course of the argument the prosecutor advised the judge that evidence would be led of the taking of the photographs of the complainant. The prosecutor stated that the evidence of these incidents was admissible to establish the relationship which the appellant had with the complainant. No objection was taken to this evidence either before the empanelment of the jury or at the time the evidence was given.
Prior to final addresses counsel for the appellant at the trial raised with the trial judge the evidence of the taking of the photographs. He said the evidence suggested an innocent purpose and submitted that the jury should be told that they should not use the evidence for any purpose. The prosecutor responded by submitting that the evidence could be used because of its tendency to establish that the appellant had “a guilty passion or a sexual passion towards young boys”.
The trial judge did not give an intimation at that stage as to her view on the use of the evidence, but said she would consider the submissions when preparing her summing up.
After referring in his address to the evidence of the photographs being taken the prosecutor said to the jury:
Members of the jury, you can dress that up and put whatever spin you like on it, but those facts speak for themselves. Can I suggest to you that it presents as clear evidence that the motivation for having these photos taken was for the accused’s own gratification, and it is clear evidence of his sexual passion for young boys.
In her summing up the trial judge told the jury that the evidence disclosed two categories of “uncharged misconduct”. She identified the two categories as the evidence of uncharged indecent assaults and the evidence of the taking of the photographs.
When summarising the arguments of the prosecutor, Her Honour said:
You were further asked to consider the photographs and it was suggested that they were taken for the accused’s own gratification and that they present clear evidence of the accused’s sexual passion for young boys.
Later in her summing up, the trial judge said:
Ordinarily in a criminal trial evidence of other alleged criminal conduct would not come before the jury. A person should be tried on evidence relating to the charges against him and not on evidence relating to other conduct that is not the subject of the charge. If there is other offending it should be the subject of the charge. The photographs are in a somewhat different category. The taking of the photographs does not, of itself, amount to a criminal act.
I will deal first with the evidence of the other alleged indecent assaults. In this case, the evidence of other alleged offending is before you for a legitimate purpose.
Her Honour then went on to deal with the uncharged indecent assaults and explained to the jury that they could be used to provide context and an explanation why the complainant might have submitted to ongoing sexual approaches by the appellant. She also said the evidence might help to explain why the complainant was unclear about the precise dates of some of the sexual incidents.
The trial judge then returned to the evidence of the photographs. She said:
In relation to the photographs, there is no doubt that they were taken, that is common ground. The question is the purpose for which they were taken. The Crown has contended that they were taken for the sexual gratification of the accused and constitute clear evidence of his sexual passion for young boys. You have heard defence counsel’s submissions to the contrary, I will not repeat those, but you must be convinced that what the Crown has said to you is the case beyond reasonable doubt. If you are not so satisfied, then you cannot use this evidence for any other purpose. Even if you are satisfied they were taken for the prurient interest of the accused, you cannot reason from that that just because he has shown to have had such an interest that is evidence of guilt in respect of these quite different matters of indecent assault and gross indecency.
In conclusion, it is really the evidence presented in proof of the four charges that is critical. The evidence of the other sexual abuse or the photographs, if you accept it as proven, is relevant only in the ways that I have spelt out.
The prosecution invited the jury to find that the taking of the photographs was clear evidence of the appellant’s sexual passion for young boys generally and that his motivation for arranging for the photographs to be taken was for his own gratification.
The trial judge left it open to the jury to use the evidence for this purpose. This must be inferred from the absence of a direction to the contrary coupled with the direction that the purpose put forward by the prosecution would have to be proved beyond reasonable doubt before the jury could act on the evidence.
Whether the appellant committed a criminal offence by arranging for the photographs to be taken and being present while they were taken is not an easy matter to determine on the evidence led at trial. It is to be noted that the trial judge referred to the taking of the photographs as “uncharged misconduct” although, in one part of her summing up, she said that the taking of the photographs did not, of itself, amount to a criminal offence.
At the time the photographs were taken it was an offence to cause or induce a child to expose any part of his or her body if the purpose of the accused was to gratify a prurient interest.[1]
[1] Criminal Law Consolidation Act 1935 s 58A(1)
The defence claim was that the appellant acted with an innocent purpose in this respect. However, the effect of the suggestion inherent in the prosecution’s submission was that this was unlawful conduct. Whether or not that is so, the incident was put forward by the prosecution as discreditable conduct[2] thus rendering applicable the principles relating to the admission of similar fact evidence.[3]
[2] cf HML v The Queen (2008) 245 ALR 204 at [12]
[3] The doubt expressed in R v Turney (1990) 52 SASR 438 as to whether discreditable conduct as opposed to illegal conduct attracts the rule in Makin’s case must now be read in the light of the judgments in HML v The Queen which confirm that the rule in Makin’s case and the test in Pfennig apply to disreputable conduct. See e.g. HML v The Queen at [12], [44], [59] and [161].
Despite the refinements to the approach to similar fact evidence since Makin v Attorney‑General (NSW),[4] Lord Herschell’s well-known comments in that case remain valid.[5] They were echoed by Gleeson CJ in HML v The Queen:[6]
Whatever the purpose for which similar fact evidence is adduced, it has an effect which the law regards as capable of providing a good reason for excluding it: if accepted, it shows a disposition or tendency to engage in crime or other discreditable conduct. If that is all it shows, and the prosecution adduces the evidence 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, then the law excludes such evidence as a matter of fundamental principle. The purpose just described is often referred to as propensity, although that itself is ambiguous. The reason for the exclusion is not the irrelevance of propensity, but its prejudicial effect. In this context, prejudice means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate. If it did, probative value would be part of prejudicial effect. It is the risk that evidence of propensity will be taken by a jury to prove too much that the law seeks to guard against. (footnote omitted)
[4] [1894] AC 57
[5] Ibid at 65
[6] HML v The Queen at [12]
The observations of Dawson and Gaudron JJ in their joint judgment in B v The Queen[7] are to similar effect:
Evidence of the sexual behaviour of the applicant towards his daughter which culminated in his convictions in 1984 was led by the applicant, but it was led for the limited purpose of establishing a basis upon which he could, by reference to the threats made by the daughter, maintain his defence that her allegations were unfounded. The evidence was admissible for this purpose. It was not otherwise admissible unless it satisfied the stringent test laid down by the law for the admission of what is called compendiously, although in many cases inaccurately, similar fact evidence.
Evidence that an accused has committed offences other than those with which he is charged ought not be admitted if it tends to show only that the accused has a propensity or disposition to commit criminal offences of a particular type or generally. If a propensity or disposition of that kind is all that the evidence tends to show, then its prejudicial nature must be greater than any relevance which it might have. To admit such evidence would be to invite the jury to proceed upon prejudice or suspicion rather than proof. But if the evidence of other offences goes beyond showing a mere propensity or disposition to commit crime or a particular type of crime and points in some other way to the commission of the offences in question, then it will be admissible if its probative value for that purpose outweighs its prejudicial effect. That is not to say that it may not still be evidence of propensity or disposition, but it will then be evidence of propensity or disposition of a particular kind which in the circumstances has a degree of relevance justifying its admission.
Later in their Honours’ reasons there is a discussion of the relevance of evidence disclosing that an accused has a sexual interest in the complainant in a sexual case. This was not the basis upon which the evidence in the present case was left to the jury. The jury were invited to consider whether the appellant had a general propensity of a sexual nature towards boys.
[7] (1992) 175 CLR 599 at 617
There have been cases where evidence of a general propensity of this nature has been admitted. However, there are few reported cases where this has occurred. The most prominent is the case of Pfennig v The Queen.[8] In that case the appellant was charged with the murder of M, a 10 year old boy. The case against the appellant was circumstantial and included evidence that the appellant had abducted and raped H, a 13 year old boy, about a year later. He had pleaded guilty to the abduction and rape. The trial judge directed the jury that only if they were satisfied beyond reasonable doubt that M had been abducted and murdered by someone could they take into account the evidence of the appellant’s involvement in the abduction and rape of H, in determining whether it had been proved that the appellant was the person who abducted and murdered M. The evidence in relation to H could be used as showing that the appellant had a disposition to abduct and sexually assault young boys. According to the directions it could be considered in conjunction with other evidence which included evidence that the accused was in the relevant area at the time of M’s disappearance and that he was driving a white van which was of a similar appearance to that which was used in the abduction of H.
[8] (1995) 182 CLR 461
The High Court held that the evidence was relevant and admissible as part of the circumstantial case against the appellant directed at establishing the identity of the person responsible for the offence. In their joint reasons Mason CJ, Deane and Dawson JJ said:[9]
There has been a tendency to treat evidence of similar facts, past criminal conduct and propensity as if they each raise the same considerations in terms of admission into evidence. The difficulty is that their probative value varies not only as between themselves but also in relation to the circumstances of particular cases. Thus, evidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark, lacks cogency yet is prejudicial. On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connexion with or relation to the issues for decision in the subject case. That evidence, as has been said, will be admissible only if its probative value exceeds its prejudicial effect. But that statement, it seems to us, is of little assistance unless it is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution; in other words, that there is no reasonable view of the evidence consistent with the innocence of the accused. In stating the question in that way, we point out, as Lord Cross of Chelsea suggested in Boardman that the purpose of the propensity evidence is to establish a step in the proof of the prosecution case, namely, that it is to be inferred, according to the criminal standard of proof, that the accused is guilty of the offence charged. Accordingly, the admissibility of the evidence depends upon the improbability of its having some innocent explanation in the sense discussed. (footnote omitted)
[9] Ibid at 483
Another case sometimes cited as an authority for the use of evidence of general disposition is Thompson v The King.[10] The appellant was charged with acts of gross indecency with two boys. It was not disputed that someone had committed the offences, but the defence case was that the appellant was elsewhere at the time the incidents took place. Evidence was led that two powder puffs were found in his possession at the time he was arrested and that photographs of naked boys were found in his house. The photographs depicted the boys in indecent poses.
[10] [1918] AC 221
Lord Sumner referred to a concession that the finding of the powder puffs on the appellant’s person was of more significance than the photographs. However, it was held that the offender had demonstrated by his conduct that he had a particular propensity and that this was relevant, when taken with other circumstantial evidence of his previous dealings with the boys, to establish his identity as the offender on the occasion in question.
There is some doubt as to whether Thompson’s case would be decided the same way today.[11] However, it is appropriate to point out that Thompson’s case was not a case of mere propensity providing direct proof of the commission of an offence, but rather a case where the evidence was used as part of a circumstantial case to establish identity. Even then the circumstances might be regarded as exceptional.[12]
[11] See the comments of Lord Sumner in DPP v Boardman [1975] AC 421 at 458; McHugh J in Pfennig v The Queen supra at 526
[12] Ligertwood, Australian Evidence (4^th ed, 2004) at [3.19]
In The Queen v Von Einem[13] the appellant’s homosexuality was held to be admissible as evidence of motive as part of a circumstantial case to prove an offence of abduction and murder. The case is not an authority which supports the admissibility of the impugned evidence for the purpose for which it was used in the present case.
[13] (1985) 38 SASR 207
I return to the circumstances of the present case. The evidence was left to the jury as evidence of mere disposition. It was suggested by the prosecution that the appellant had a general disposition to engage in sexual conduct with young boys. The evidence of this disposition was not put forward as an item of circumstantial evidence so as to invite coincidence reasoning; nor was any other relevance suggested apart from general disposition. As Gleeson CJ pointed out in HML v The Queen, in the absence of some purpose beyond general disposition there is a clear danger of prejudice in the improper use of such evidence.

In the circumstances there was a real risk of a miscarriage of justice arising from the improper use of the evidence. In my view, the appeal must be allowed and the convictions set aside.
The situation would have been different if the evidence had been led to establish a particular disposition as opposed to a general disposition.[14] In HML v The Queen the appellant was convicted of two counts of unlawful sexual intercourse with his daughter who was under the age of 12 years. Evidence of uncharged sexual acts was led and, in addition, there was evidence that the appellant had purchased three items of G-string underwear for his daughter when she was nine years of age and that he had filmed her while she was doing cartwheels naked. Hayne J commented that the evidence of the filming was properly described as discreditable conduct and, in order to be admissible, it was necessary for the evidence to pass the test described in Pfennig v The Queen. His Honour went on to say:[15]
Even if it is assumed that filming the complainant in the circumstances she described constituted no offence, the event, as the complainant described it, had such sexual overtones as to admit only of the conclusion that it demonstrated the appellant's sexual interest in her. By contrast, the evidence about the underwear was equivocal.
Later, when dealing with the appropriate directions to the jury in relation to this issue, Hayne J said:[16]
As will be apparent from what has been said already, the directions about how the evidence of other sexual conduct and events might properly be used should have focused upon whether the evidence established, beyond reasonable doubt, that the appellant had a sexual interest in the complainant and had given effect to that desire by his actions. The manner of expressing that direction will, of course, depend upon the way the case has proceeded. In particular, the way in which the accused's sexual interest is described may depend upon the ways in which the parties have chosen to describe it. Words like "passion", "desire" or "attraction" have often been used to describe what moves the accused in a case like those now under consideration. Sometimes epithets like "guilty" or "illicit" or "unnatural" have been used to embellish the description. There is no one formula which must be used. As a general rule the use of embellishing epithets is neither helpful nor desirable. What is important is that the jury's attention is focused upon whether the evidence of other sexual conduct or events proves the accused had a sexual interest in the complainant and had carried that interest into effect.
[14] cf HML v The Queen at [346]
[15] HML v The Queen at [173]
[16] Ibid at [200]
The members of the Court were not unanimous as to whether the test in Pfennig was applicable in all cases in which evidence of uncharged acts is tendered. Gummow and Kirby JJ agreed with Hayne J’s view that it was necessary for such evidence to comply with the Pfennig test. The differences of opinion in the case related mainly to the category of evidence sometimes referred to as “relationship” evidence and whether the admissibility of evidence of that nature was to be determined in accordance with the Pfennig test.
Although the evidence of the taking of the photographs could not be used to establish that the appellant had a general sexual propensity for young boys, it would have been open to the trial judge to admit the evidence on either or both of the bases referred to in the judgments of the members of the High Court in HML v The Queen. The evidence could have been used to establish that the appellant had a particular sexual interest in the complainant, rendering it likely that he committed the offences with which he was charged. The use of the evidence in this way would appear to satisfy the Pfennig test as explained by Hayne J. On the other hand, the evidence could have been admitted on the basis that it was relationship evidence in the sense described by Kiefel J.[17] Admissibility on these bases would be subject to the further assessment as to whether the probative value of the evidence exceeded its prejudicial effect.
[17] Ibid at [512]; see also R v Nieterink (1999) 76 SASR 56 at [44]
I would allow the appeal, set aside the convictions and order a retrial.
ANDERSON J: I would also allow the appeal, set aside the convictions and order a re-trial. I agree with the reasons of Duggan J.
KELLY J: I agree that this appeal should be allowed for the reasons expressed by Duggan J.