R v Tedesco

R v TEDESCO
[2003] SASC 79
Court of Criminal Appeal: Doyle CJ, Duggan and Gray JJ

DOYLE CJ: The appellant was tried by a Judge and jury in the District Court on an Information containing four counts. The first two counts alleged rape on 6 September 2001. The third count was a charge of criminal trespass in a place of residence on 27 September 2001. The fourth count was a charge of assault on the same day and at the same place. The victim in each case was a woman to whom I will refer as “Ms E”. The jury found the appellant guilty on both charges of rape, not guilty on the charge of criminal trespass, and guilty on the charge of assault.
Two matters were argued on appeal. First, that the Judge erred in allowing the joinder of counts 3 and 4 with counts 1 and 2. Second, that the Judge erred in failing to direct the jury about the permissible use of evidence relating to counts 3 and 4 when considering counts 1 and 2. This ground was added by leave at the hearing of the appeal. Counsel for the appellant abandoned a further ground that complained that the Judge erred in admitting evidence of certain uncharged acts.
Facts
For the purposes of the appeal it suffices to summarise the central features of the case at trial.
The background to the charges was a rather stormy relationship between the appellant and Ms E. The relationship began in the middle of 2000, and ended in late August 2001. The appellant and Ms E lived together for two periods in that time. They finally separated in late August 2001. Ms E said that the difficulty in the relationship was that the appellant became very jealous and possessive, trying to control her life. Ms E also gave evidence of some incidents, which preceded the charges, involving verbal abuse of her by the appellant, and some physical violence towards her.
After they separated in late August 2001, there was still some contact between them. Ms E said that the appellant pestered her at her place of employment. They had arranged to meet on 6 September 2001 at the house in which they last lived together. Ms E had moved out of the house just a few days before, motivated by fear of the appellant. The plan was for them to clean the house, and then hand over possession to the landlord. On the morning of 6 September, Ms E was cleaning out the house when the appellant arrived. He had a new car with him. He told Ms E that if she would resume the relationship the car was hers. She declined both offers. Ms E said that they went into the house and she resumed the cleaning. The appellant then took her by the arms, and asked her to reconsider, but she refused. Ms E said that the appellant was initially upset, then got angry. He held her tightly. She continued to refuse to resume the relationship. The appellant forced Ms E into the bedroom. It is not necessary to go into the details of what followed. In brief, Ms E said that the appellant forcibly pulled down her jeans, and inserted a finger into her vagina and anus. Each of these acts was the subject of a charge of rape. The appellant then allowed Ms E to leave the house. She walked to a nearby shopping centre where she telephoned a friend. When the friend came to get her, she made a complaint to the friend.
I can omit the details of what ensued from that incident.
Ms E did not see the appellant again for some time. She moved to a new address.
On 27 September 2001 at about 3 pm, Ms E opened the front door of the house, to find to her surprise that the appellant was there. There was a screen door that was locked. The appellant was angry. He accused Ms E of having someone with her. She denied this. She refused to let him in. Then her young son arrived home from school. She called out to him to run next door, which he did. The appellant began to run after her son, so Ms E opened the front door and ran out of the house. The appellant then came back, and before Ms E could lock the screen door he opened it and entered the house. I assume that this act was the subject of the count of criminal trespass. Once in the house the appellant behaved in an angry and threatening manner. He said to Ms E that if he found out she was living with another man, he would throw a petrol bomb through her window. That made her feel very scared. That threat was the basis of the charge of assault.
There was other evidence upon which the prosecution relied, but in view of the grounds argued, it is not necessary to summarise that evidence.
The Summing Up
Early in the summing up the Judge directed the jury, in standard terms, about the need to consider each charge separately. He said:
“Each count, because it charges a separate offence, must be treated separately upon its merits. When ultimately you return your verdicts, you will be asked, successively in relation to each count, whether you find the accused guilty or not guilty of that count. It does not follow that, where an accused is charged with more than one count, simply because you might be satisfied of guilt on one offence, that the accused is also guilty of any other offence. And, equally, it does not follow that because you might find the accused not guilty on one offence, he should be found not guilty on another. The charges do not stand or fall together.”
The Judge then gave the jury a direction as to the evidence to be considered on each count. He said:
“It becomes necessary to take special care to see that the method by which the guilt of the accused on any one count may be established, is by only considering the evidence which is offered in relation to that count and not the evidence relating to the information as a whole, except to the extent, of course, that that other evidence may indicate general relevant background material and may assist you in considering the credibility of the parties.”
A little later the Judge reminded the jury, quite briefly, of the evidence that had been given about the behaviour of the appellant during the course of the relationship. I mention here that some of the incidents amounted to assaults, other matters involved no criminal conduct but rather evidence of behaviour consistent with an overbearing and controlling attitude. Having done that, the Judge then said:
“Ordinarily, a jury would not hear evidence of past conduct of an accused person. It is an important principle of our law, founded on considerations of fairness and justice, that a person should be tried on evidence relating to the offences charged against him and not on his past. It was necessary for you to hear this evidence, however, in this case, because if you find it, or any of it, has been proved, and that is a matter for you, it may help you to understand the relationship between the accused and the alleged victim, how it was off and on, how there was considerable anger between them at times. It may help you understand the background of the alleged offences and the context in which they are alleged to have occurred, such as the claim by the prosecutor that the accused was jealous and possessive, and it may help you to make the evidence concerning the counts charged more fully comprehensible.
So, in that respect, you can use that evidence, but you must not reason in the way that I have spoken to you. Great injustices would be caused if juries used an accused person’s past to convict him. You should not reason that because you might think the accused has done some of these things, that he is the sort of person who would be likely to commit any of the offences which he now faces and that he is, therefore, likely to be guilty. Ignore considerations of that kind and focus on the evidence relating to the offences charged, using the evidence of previous conduct only as part of your coming to an understanding of the relationship between them, the background and the context in which the parties, or in which the alleged offences, are alleged to have occurred.”
On appeal, no criticism was made of this direction, as far as it went.
Submissions on Appeal
The first submission by Mr White, counsel for the appellant, is that the Judge erred in allowing the joinder of the first two counts with the second two counts. I will deal with that submission now. In my opinion, it has no substance. All four offences were of a kind and were committed in circumstances such that joinder was permissible as a matter of law, because the charges were “founded on the same facts or form ..... a series of offences of the same or a similar character:” Rule 3 of Schedule 3 to the Criminal Law Consolidation Act 1935 (SA). In the particular circumstances of the case the joinder was proper because the evidence on the first two counts, if accepted, disclosed aspects of the appellant’s attitude to Ms E, and did so in a manner relevant to proof of the third and fourth counts. The evidence tended to show a domineering approach on the part of the appellant, and a willingness to make her do what he wanted her to do. The evidence on the third and fourth counts was also admissible on the first two counts. Although the third and fourth counts occurred later, the evidence about these events likewise could be seen by the jury as revealing aspects of the relationship between the appellant and Ms E that were relevant when considering the first two counts. This evidence was admissible on the same basis as was the relationship evidence about which the Judge gave a specific direction.
For those reasons joinder was appropriate, and the Judge was right to allow the trial to proceed on that basis.
Mr White’s second submission is that the Judge erred in failing to direct the jury about the use of the evidence on counts 3 and 4 when considering counts 1 and 2. The Judge was not at any stage asked to give any such direction.
Mr White submitted that the jury might have used evidence of the events on 27 September as disclosing some kind of propensity to assault Ms E, or even to rape her. He said the jury might have reasoned in this way, even though there is no suggestion of any sexual aspect to the events of 27 September. Mr White submitted that the jury should have been told that the evidence of events on 27 September could only be used in the same manner as the jury could use the evidence about the relationship between the appellant and Ms E and on which the Judge gave a specific direction, set out above. In other words, he submitted that the jury should have been told that if the jury accepted the evidence from Ms E in relation to events on 27 September, they could use it to help them understand the relationship between the appellant and Ms E, and could use it to conclude that it was a relationship in which, on occasions, the appellant used force towards Ms E, but that the jury should have been told specifically not to reason that the evidence of these later events was evidence disclosing a propensity or inclination to commit sexual offences or other offences generally against Ms E. Mr White submitted that the fact that the direction the Judge gave about the relationship evidence was limited to “past conduct” might have misled the jury into thinking that the use of evidence about acts other than the charged acts under immediate consideration was limited only when the relevant acts preceded the relevant offence, and not when the evidence was of events later than the relevant offence. Mr White acknowledged that if the Judge had referred to the use of the evidence on counts 3 and 4 in relation to counts 1 and 2, in the direction that he gave to the jury about the relationship evidence, that would have been adequate.
During argument it became clear that if this objection is sound, it applies equally in relation to the use of the evidence on counts 1 and 2 in relation to counts 3 and 4. The Judge did not give the jury a warning about the use of that evidence either. This assumes, of course, that the warning the Judge gave the jury about the relationship evidence would not have been understood as relating to the evidence on counts 1 and 2. On the other hand, it is possible that the jury would have understood the reference to “past conduct” as embracing the evidence on counts 1 and 2 if it were to be used in relation to counts 3 and 4.
Adequacy of Direction
It is well established that a jury must be given appropriate guidance about the permissible and impermissible use of evidence of uncharged acts, when such evidence is admissible in proof of a charge. I canvassed the authorities bearing on this point in R v Nieterink [1999] SASC 560; (1999) 76 SASR 56. The law on this point is so clear that it is not necessary to refer to other authority. I have used the term “uncharged acts” as a convenient shorthand for evidence that discloses unlawful or, possibly, discreditable conduct by the accused on occasions other than occasions the subject of a charge being considered by the jury.
The position is not so clear in a case like the present. The complaint on appeal relates to the use of evidence relating to an incident which was the subject of a charge being considered by the jury. In that sense, the evidence is not evidence of uncharged acts. This is a case in which there is a single victim. There is no suggestion that acceptance of the evidence of one victim supports acceptance of the evidence of another victim. It is a case in which the evidence on counts 1 and 2 is admissible on counts 3 and 4, and vice versa; the evidence on each count, apart from tending to prove that count, does disclose criminal conduct, and might in theory be regarded by the jury as disclosing a criminal disposition relevant to another count (eg perhaps a disposition to use violence); but the evidence on each count also reveals aspects of the relationship between the appellant and Ms E which are relevant to proof of guilt. I also emphasise that the present case is not a similar fact case, meaning a case in which the similarity of different incidents points to each incident being the work of a single offender. Nor is it an improbability case, in which the prosecution thesis is the unlikelihood of an innocent explanation for the association of the accused with the events, or for the involvement of the accused in the events. In this respect, the present case is nothing like R v Liddy [2002] SASC 19; (2002) 81 SASR 22.
In KRM v The Queen [2001] HCA 11; (2000) 206 CLR 221, a majority of the High Court, as I understand their reasons, indicated that in a case like the present a propensity warning (meaning the clear direction about how the evidence can be used, and a warning against impermissible propensity reasoning), is not necessary. These remarks were not essential to the decision, but are carefully considered views of those members of the Court. It is necessary to set out a rather lengthy passage from the reasons of McHugh J. He said at [33]-[37]:
“Hitherto, common law courts have accepted that a propensity warning is not required merely because a presentment contains a multiplicity of counts involving similar offences. No propensity warning is required, for example, because the accused is charged with several counts of housebreaking or stealing or murder or sexual offences. Counsel for the appellant accepted that, if the presentment in this trial had not contained count 18, the appellant had no right to a propensity warning.
Directions concerning the dangers or the use that can be made of particular categories of evidence are the product of the collective experience or assumptions of the Anglo-Australian judiciary that, without these directions, miscarriages of justice are likely to occur. Directions concerning identification evidence, confessions made in police custody, prisoner-informer evidence and accomplice evidence, for example, are the product of judicial experience that, unless carefully scrutinised, evidence falling within these categories may lead to miscarriages of justice. Consequently, where over a long period courts have refrained from insisting that a class of evidence should always attract a direction, it is a reasonable inference that the experience of the judiciary is that universal directions or warnings concerning that evidence are not required.
It seems a reasonable conclusion, therefore, that the experience of the judiciary negates the need for a propensity warning merely because an accused person is charged on a presentment with a number of counts containing the same or similar offences against the same victim and that is so whatever the nature of the charges.
It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a ‘separate consideration warning’). The universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present. This indication is confirmed by the many cases where juries acquit accused persons of some charges and convict them of others where the presentment contains multiple counts involving the same or similar offences. Indeed, so freely do juries acquit of some charges and convict of others on presentments with multiple counts that appellant courts often hear arguments that there is such an inconsistency in the verdicts that the convictions are unsafe and must be set aside.
Thus, although the evidence on one count may show a propensity to commit crime - even crime of the kind the subject of the other charges - the experience of the judiciary is that ordinarily juries do not use propensity reasoning to convict on other counts unless instructed that they can do so. To give the warning when it is not needed may divert the jury from its proper task. The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings. Further, to require that a propensity warning always be given may sometimes be prejudicial to an accused person because it might distract a jury from doing what the trial judge told them to do here, to focus upon the evidence relevant to each charge. It may even suggest the very train of reasoning that a propensity warning is designed to overcome and make it difficult for the jurors, try as they might, to remain uninfluenced by the forbidden chain of reasoning.” (footnotes omitted)
McHugh J went on at [38] to explain that in some circumstances of multiple counts, there may be a risk that the jury will use particular evidence or a conviction in respect of a count:
“...... to reason that the accused is the kind of person who would commit the crime charged in another count or counts in the presentment.”
He commented on the appropriate approach when that risk arose. As his comments indicate, different situations require different approaches. He added at [39] that in a case in which the relevant evidence on each count is admissible on each other count, the relevance lying in the fact that the evidence also establishes a subsidiary issue, such as the relationship between the parties:
“.... the judge will often, but not always, have to give a propensity warning. In some cases, giving the warning may excite the very prejudice that it purports to eliminate.”
Gummow and Callinan JJ referred without comment at [59] to the view expressed in the Court below that:
“..... a propensity warning is not required simply because there are two or more counts on the one presentment against the same victim. A warning of that kind is only required if some other factor calls for it .....”
Kirby J appears to have expressed a view similar to that of McHugh J. He said [at 119]:
“Specifically, it will ordinarily be ‘proper’ to give such a warning where there is more than one complainant. It may be necessary where the acts constituting the crime are not discrete and clearly identified. Or where general evidence is given that lacks specificity, of the very kind that the relationship offence may tend to permit. In such circumstances, in my view, a propensity warning should be given. Whether it would be needed in cases of multiple counts involving specific offences (such as murder, armed robbery or other crimes of violence) would depend on the circumstances. But where the offences charged invite, and permit, evidence of a continuing association, or evidence of a more general character (for example, crimes such as drug trafficking (R v Giretti (1986) 24 A Crim R 112) or the relationship offence in question here) there should be a greater judicial willingness to provide the warning against propensity reasoning than elsewhere.”
Finally, Hayne J also appears to have agreed generally with the approach of McHugh J. He said at [132]-[133]:
“The trial judge, in this matter, gave a direction that each count on the presentment must be considered separately in the light of the evidence which applied to it and that it would be quite wrong to say that simply because the jury find the accused guilty or not guilty of one count that the accused must be guilty or not guilty (as the case may be) of another count. These directions, which ordinarily must be given in any trial where there are multiple counts before the jury, will usually suffice to warn the jury against reasoning of the kind described as ‘propensity’ reasoning. No further elaboration or emphasis of that warning was called for in this case.
As McHugh J points out in his reasons, the circumstances in which propensity evidence may be adduced are limited, and the use to which a jury may properly put propensity evidence is also limited. If evidence is led of misconduct by an accused which does not form the subject of a charge being tried, a warning against the danger of propensity reasoning will ordinarily be required. By contrast, the fact that there are multiple counts included in the one presentment does not necessarily give rise to a requirement that a propensity direction be given. Generally, the separate consideration direction is sufficient warning against misusing evidence of other charged acts.”
His remarks are particularly apposite to the present case. I should add that all of the above remarks were made in the context of a case in which the judge warned the jury of the need to consider each count separately, and told the jury that it would be wrong to reason from a finding of guilt on one count to a finding of guilt on another count, or to reason in that way in relation to a finding of not guilty. The case was one in which the main focus was on the need for a propensity warning when the Information contains a count of maintaining an unlawful sexual relationship, an offence recently created by statute in a number of jurisdictions.

In the light of these remarks, it cannot be said, in my view, that the law of Australia requires that a propensity warning or direction be given in all cases in which the accused is charged with multiple counts involving the same victim, and evidence on each count is admissible on each other count. In particular, it cannot be said that such a direction is always required even though the prosecution case does not rest on what I will for convenience call “similar fact reasoning” or “improbability reasoning”.
The tenor of what their Honours said suggests that such a warning is not required in the present case. The relevance of evidence on one count to other counts lies in the light it casts upon the relationship between the appellant and Ms E, and not because it suggests a propensity to offend in a particular manner. The risk of the jury reasoning by reference to propensity seems remote to me. The jury were in any event told that they should not reason from a finding of guilt on one count to a finding of guilt on another count. It seems to me that the present case is not a case with features which called for such a warning, having regard to what their Honours said in KRM.
The Queen v Schlaefer (1984) 37 SASR 207 is a case that has often been followed in this State.
The accused was charged with three counts of indecent assault on a young girl (Helena) and one count of indecent assault on her slightly older brother (Leon). He was found guilty of all but the first count of indecent assault on Helena. The Court was satisfied from the circumstances of the offending that evidence on each count was admissible on each other count. In relation to the admissibility of Helena’s evidence in relation to Leon’s evidence, the basis of the admissibility was said to be that having regard to the circumstances, the account of each child of what happened to that child was strongly supportive of the truth of the account given by the other child. Thus, Schlaefer is a different kind of case, and consistently with what the High Court said in KRM would call for a propensity warning. It is a similar fact case, and one in which the evidence of one victim could be used to support another victim.
The complaint on appeal was that although the Judge directed the jury about how they could use the evidence in respect of the three counts relating to Helena, the Judge did not give directions as to the use of the evidence on what it called the Helena counts on the Leon count or vice versa. King CJ said at 210-211:
“This situation called for a clear direction to the jury as to the use, if any, which they could make of evidence of guilt of each offence charged in considering the charges of the other offences. There has been judicial emphasis of the highest level in recent years on the real risk of prejudice to an accused person who is tried at the same time for more than one offence and of the necessity to avoid such prejudice: Director of Public Prosecutions v Boardman [1975] AC 421, per Lord Hailsham at p 452 and per Lord Cross at p 458; Sutton v The Queen (1984) 51 ALR 435, per Gibbs CJ, Murphy J and Brennan J. Where on a trial of an accused person on more than one charge, the evidence in support of each charge is not admissible in proof of the others, there is need of a clear direction to the jury to guard against the risk of impermissible prejudice: Sutton v The Queen (1984) 51 ALR 435, per Brennan J. If the evidence in support of each charge is admissible in proof of the others, an appropriate direction as to the permissible and impermissible uses of similar fact evidence is needed.”
These remarks are consistent with what the High Court said in KRM, but in light of what has been said in KRM should not be treated as requiring a direction of the kind called for in all cases of multiple counts, regardless of the circumstances.
I have already mentioned the basis upon which the evidence of Helena and Leon was able to be used to support the evidence of the other. King CJ took the view that even though the judge did not give a direction about the permissible use of the evidence, that use was so obvious that the jury would have understood how the evidence could be used. He then said at 213:
“It [the jury] should have been given a warning, however, against the impermissible use of the evidence as a basis for reasoning from a supposed propensity to crime or this type of crime, to a conclusion as to guilt on the charges under consideration.”
King CJ went on to say, at 213-214, that the omission to give the direction did not amount to an error of law, but:
“.... was rather an omission to apply a sound and recognized rule of practice.”
As he was not satisfied that the non-direction had produced a miscarriage of justice, the non-direction was not a basis for setting aside the verdict. There were two steps in his reasoning. First, as already stated, that the failure to direct as to the permissible use did not matter. Second, that while the failure to direct as to the impermissible use was, (at 214), “a matter for greater concern”, the risk of impermissible propensity reasoning “did not really enter into the matter”. Walters J (at 219) and Mohr J (at 220) agreed with the reasons of King CJ.
A broadly similar view of the law was stated by Cox J in R v Armstrong (1990) 54 SASR 207 at 220. This was a case in which the accused was charged on five counts of housebreaking and larceny, the prosecution case being that all offences were committed in the same area, over a period of about six months, all in daylight, and on each occasion the accused or his motor car, or both, were observed nearby. In those circumstances the prosecution argument was it was improbable that there was an innocent explanation for the presence of the accused at or near the scene of the relevant crime at the relevant time. Clearly, careful directions were called for about how the evidence on one count could be used on another. Cox J said at 220:
“It is usual for a judge to warn the jury, when they are trying multiple counts, to consider the evidence relating to each count separately and not to treat any deficiencies of proof on one count as being made good by the clarity of the proof on another. See generally R v Schlaefer (1984) 37 SASR 207; R v Garrett (1988) 50 SASR 392. In many cases of similar fact evidence a careful and clear warning will be necessary. Where propensity evidence is relied upon the jury should be told that, when considering any count in the information and drawing a conclusion with respect to it as to, say, an issue of identification, they must be satisfied, before using that evidence in relation to any other count or counts, that the accused had in fact committed the offence or done the relevant act disclosed by that evidence.”
In the light of those authorities, the issue is whether, in the present case, there was any circumstance that called for a direction about the permissible use of the evidence on counts 1 and 2 in relation to counts 3 and 4, and about the impermissible use of that evidence. Likewise, was there any circumstance that called for the same directions in relation to the use of the evidence on counts 3 and 4 in relation to counts 1 and 2? This is to be decided bearing in mind the direction the Judge gave about the need for separate consideration of each count, and the direction about how evidence on one count could be used and should not be used on another count.
In the light of what is said by the High Court in KRM, I do not consider that any further direction was called for. The directions given were adequate. As has often been said, there is good reason to keep jury directions as short and as simple as they can be, subject to the duty of the trial judge to give such directions as are called for. Unnecessary warnings should not be given. They add to the jury’s burden, and can be confusing. Sometimes, if a warning is given about how evidence should not be used, it will be necessary, in the interests of balance, also to state how the evidence can be used. That may not be in the interests of the accused.
In the present case, the only feature of the evidence on each count that could possibly warrant a propensity warning is the slight risk of the jury engaging in propensity reasoning from the aspects of that evidence that threw light on the relationship between the appellant and Ms E. But the jury already had an adequate direction about the use of relationship evidence, and the risk of propensity reasoning in this case was slight. In all the circumstances, I consider that no further direction was called for.
If I am wrong in that, I am satisfied that the failure to give a propensity warning does not give rise to any risk of a miscarriage of justice. The appropriate use of the evidence is obvious, and there was no need to tell the jury about that. The risk of impermissible use of the evidence seems quite remote. I do not consider that there is any risk of the jury reasoning, from their acceptance of Ms E’s evidence on counts 1 and 2, that the appellant was a man likely to have committed crime generally, or even likely to have committed crimes of violence against Ms E. To the extent that there was any risk of such reasoning, it was met by the Judge’s direction to the jury that a finding of guilt on one count should not be used to reason to a finding of guilt on another count. As to the use of counts 3 and 4 in relation to counts 1 and 2, the same reasoning applies. It is even more unlikely, I consider, that the jury would have reasoned from their finding of guilt on count 4 (they acquitted the appellant on count 3) that the appellant was a man likely to have committed the offences alleged in counts 1 and 2. I also think it likely that the jury would have understood, from the direction that the Judge gave about relationship evidence, how such evidence should be used, even though the direction referred to “past conduct”. Finally, it is necessary to bear in mind that after the Judge told the jury not to reason from guilt on one count to guilt on another count, he told them that evidence on a given count could be used on another count only to the extent that it disclosed “general relevant background material”. It would have been better if the Judge had been more specific there, but it seems to me that this was a sufficiently clear direction about the limited way in which evidence on one count could be used on another count.
For all those reasons I am satisfied that there has been no miscarriage of justice here.
Conclusion
In my opinion the appeal should be dismissed.
DUGGAN J: In my view this appeal should be dismissed for the reasons given by the Chief Justice.
GRAY J: I agree that this appeal should be dismissed for the reasons published by Doyle CJ.

[2003] SASC 79

19 March 2003