R v SPARKS - [2014] SADC 74

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SPARKS
[2014] SADC 74
Reasons for Ruling of His Honour Judge Tilmouth
10 April 2014
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - RELEVANCE - SEXUAL OFFENCES
The accused applies to cross-examine the complaint on several aspects of his sexual activities.
Held: Questions permitted on certain subjects only to the extent that they serve to explain or put into proper context the evidence of a medical examination of the complainant, as explaining the source of his esoteric age inappropriate knowledge of sexual matters from other than accused, and as to his capacity to fabricate or fantasise allegations of a sexual nature.
Criminal Law Consolidation Act 1935 (SA) s 49(1), 50(1),; Evidence Act 1929 (SA) s 34L, s 34L(1)(b), s 34L(2); Bromley, Karpany v The Queen (1986) 161 CLR 315; R v Bryce and Dewar (1993) 170 LSJS 52; Quesion of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214; Bull v The Queen (2000) 201 CLR 443; MNO v Western Australia (2009) A Crim R 466, referred to.

R v SPARKS
[2014] SADC 74

The accused is charged with one count of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) and one count of unlawful sexual intercourse contrary to s 49(1) thereof, both involving the same complainant. The operative events are said to have occurred between 1986 and 1992 at various country locations in this State, when the complainant was between 8 and 14 years of age (date of birth 20 March 1978) and under the age of 12 when the second count is said to have occurred.
There is before the court an application by the defence brought pursuant to s 34L of the Evidence Act 1929 (SA), to cross-examine the complainant on various subjects, mostly involving his sexual experiences, identified in a short written submission filed by defence counsel Mr Lyons. The core allegations on the exploitation charge consist of touching the complainant’s penis, causing him to perform fellatio on the accused and the accused inserting his penis into the complainant’s anus. The particulars of the unlawful sexual intercourse charge on the second count, which is charged in the alternative, is an allegation by the complainant that the accused ‘told me to put … my mouth over his penis’.
A large number of files were produced on subpoena, mostly Departmental records of Families SA or its predecessor, relating to the complainant’s childhood. He has had a deeply troubled and abused life, bringing him under foster care, a situation which forms an important backdrop to the charges. These documents found the application by the defence and establish a legitimate forensic purpose for doing so.
In late July 1992 the complainant, who was then aged 14, was examined by a paediatric specialist at the Flinders Medical Centre, who reported as follows:
His anus was examined with him in the left lateral position. There was an old healed scar in the middle of his right buttock, for which he did not know the cause. The anus appeared somewhat abnormal. On the anterior midline edge there appeared to be a depressed scar. This could have been an area of congenital dehiscence, but it appeared more to be a scar. In the posterior midline, there appeared to be some reddish areas which appeared to be old fissures. The anus easily dilated with some gentle abduction, with some funnelling of the anal canal. There was some mucous in the anal canal but no other signs of infection. … My conclusion was that there was physical evidence consistent with history of anal interference.
Section 34L(1)(b) of the Evidence Act prohibits questions of any complainant as to sexual reputation, and without permission of the trial judge, forbids any questions of the alleged victim as to:
sexual activities before or after the events of and surrounding the alleged offences (other than recent sexual activities with the accused).
The primary design of the statutory prohibitions, which appreciably curtail the common law, is to ensure that alleged victims are not unnecessarily distressed, humiliated or embarrassed through asking such questions: s 34L(2). They also serve to avoid the exploitation of the lawful sexual preferences of victims. In deciding whether to grant permission, the court must first be satisfied that the proposed line of questioning is of substantial probative value, or would in the circumstances be likely materially to impair confidence in the reliability of the evidence of the alleged victim. In either event admission must also be in the interests of justice: s 34L(2).
In this instance it is accepted by the prosecution that there is at least some credible evidence that one other person, VS, sexually abused the complainant. On that basis permission is granted to both the prosecutor and the defence to ask questions of the complainant as to that topic.
The second application relates to another person WG. There is material in the subpoenaed documents to suggest that WG might have also sexually abused the complainant. For the most part it is indirect and affords of itself little if any underlying proof that this was the case. It is on this basis that the prosecution opposed the application. However this contention, no matter how valid it might otherwise be, merges the issue of permission to ask questions of the complainant with subsequent proof of allegations so put, a question that only arises once the complainant denies them.
The medical evidence quoted above, unless put in proper context, might falsely suggest that the accused – and only the accused - persistently abused the complainant. Having allowed the exploration of that issue with respect to VS, it would only be consistent to allow the prospect of sexual exploitation of the accused by WG, as affording an explanation for the state of the complainant’s anus, which might otherwise be unfairly attributed solely to the accused.
Furthermore, the line of questioning related to both men is capable of being substantially probative, as explaining the complainant’s apparent esoteric age unlikely knowledge of sexual matters going beyond his years, other than being acquired exclusively from his alleged sexual experiences with the accused: Bull v The Queen,[1] MNO v Western Australia.[2]
[1] (2000) 201 CLR 443, [62].
[2] (2009) A Crim R 466, [12].
Still further there is a distinct prospect on the material referred to by counsel that this aspect of the matter will come out as an integral part of proposed complainant evidence.
A third line of questioning for which permission is sought, relates to certain events said to have transpired in the presence of the complainant between his uncle and aunty. The source of this information appears to be from the complainant himself. Even if proven or admitted, the allegations are not of themselves of such a substantial probative value or likely to materially impair the confidence in the reliability of the witness, because they relate more to the misconduct of others rather than him, and in which he was a passive observer.
The final category for which permission is sought to cross-examine, relates to what was generically labelled as ‘highly sexualised activity’ by the complainant. These occurred by and large, before or during the charged events and they included alleged sexual advances on siblings and relations. Here the sexualised acts mostly relate to his own desires, rather than what others may have sexually done to him. The highly unnatural sexual precociousness of the complainant is not demonstrated to be indicative of reliability. The reports are sourced from largely indirect information and would not in most instances, provide admissible proof of the underlying facts. Given that the complainant was likely to have been abused by at least one other person, highly sexualised behaviour by him towards others is perhaps hardly surprising, but irrespective of that, the material presently under discussion fails to be sufficiently probative or sufficiently likely to impair confidence in the reliability of the complainant’s evidence in the circumstances.
Save for the two possible exceptions to be mentioned shortly, questions in relation to this material will not otherwise be allowed. The case of Bromley, Karpany v The Queen[3] was quite different in that the witness in question was schizophrenic and had an episode of that illness on the very night and at the very time of the offence charged. The case of R v Bryce and Dewar[4] relates mostly to the appropriate age specific warning to be given with respect to child complainants before the amendments to the Evidence Act. Likewise the case of Question of Law Reserved on Acquittal (No 1 of 1993),[5] concerned a mentally impaired complainant.
[3] (1986) 161 CLR 315.
[4] (1993) 170 LSJS 52.
[5] (1993) 59 SASR 214.
The exceptions are as follows. There is a report on 15 July 1994 of inappropriate sexual behaviour by the complainant with respect to a Departmental Officer. However once again that is not of such a nature that might affect the jury’s assessment of the reliability of the complainant, so questions on that subject matter will not be permitted. However permission is granted to question in relation to an allegation concerning another Departmental Officer, recorded in an entry of 19 October 1994. The complainant is alleged to have told an Officer that another Officer had ‘come onto [another man] sexually’. Questions on this topic are capable of revealing whether this allegation of a sexual kind made by the complainant suggests a capacity to fabricate or fantasise such allegations.
Finally there are several notes in the Departmental records whose provenance can be traced to the complainant, which record his desire or demand to have sex with his mother. Once again this is either so inherently unlikely or highly unnatural that it is highly probative of his capacity to fabricate or fantasise respectively.
In giving the limited permission to examine as detailed below, it should be understood that proof of any contradictory evidence of the underlying facts in the face of denials by the complainant, must be by conventional means.
In summary permission is given in the interests of justice to examine or cross-examine the complainant, as the case may be, as to:
1Sexual encounters with VS, and WG.
2Allegations of sexual encounters concerning one Departmental Officer detailed above.
3Assertions of desiring or demanding sexual intercourse with his mother.
Of course careful directions will be required as to how the jury might properly approach any material that might be elicited or subsequently adduced in accordance with the above ruling, but that topic stands for later consideration.