R v W, CT - [2019] SASCFC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v W, CT
[2019] SASCFC 18
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Lovell)
26 February 2019
CRIMINAL LAW - EVIDENCE - HEARSAY - PARTICULAR MATTERS - DOCUMENTARY EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - EVIDENCE - COMPLAINTS - GENERALLY
The applicant was convicted of five counts of indecent assault and three counts of unlawful sexual intercourse against his daughter. The complainant sent a letter to the applicant which contained allegations of sexual abuse. At trial, the contents of the letter were excluded and the parties proceeded by way of an agreed fact. The jury twice queried why the letter was not before them. The applicant complained about the judge's directions to the jury in relation to the use to be made of the alleged admission and also the direction in response to the jury question.
Held, allowing the appeal:
1. The trial Judge erred in her direction as to how the alleged admission could be used by the jury.
2. The trial Judge erred in her direction in response to the jury questions.
3. The matter is remitted to the District Court for a new trial.
Criminal Law Consolidation Act 1935 (SA) ss 49, 56, referred to.
R v Markuleski (2001) 52 NSWLR 82; R v H,ML [2006] SASC 240; R v Helps (2016) 126 SASR 486; Slatterie v Pooley (1840) 151 ER 579; R v Bucca and Castle [2018] SASCFC 42, considered.

R v W, CT
[2019] SASCFC 18
Court of Criminal Appeal: Kourakis CJ, Stanley and Lovell JJ

KOURAKIS CJ: On 13 September 2018 I joined in the orders allowing the appeal and directing a new trial for the reasons given by Lovell J.
STANLEY J: I also joined in the orders made for the reasons given by Lovell J.
LOVELL J: The applicant is the father of the complainant, CW. He was charged with indecently assaulting CW (five counts)[1] and having unlawful sexual intercourse with her (three counts)[2]. At a trial held in April 2017 the jury was unable to reach a verdict. The applicant was retried and on 4 April 2018 the jury returned majority verdicts of guilty on all counts.
[1] Contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 49 of the Criminal Law Consolidation Act 1935 (SA).
The prosecution alleged that between about 1978 and 1988, when the applicant, CW, and her family lived at Renmark, the applicant sexually abused CW. The Crown case depended almost entirely on the evidence of CW. Initial complaint evidence was led through CW and her counsellor, RS. The prosecution also led evidence of alleged admissions made by the applicant to CW. The context in which these admissions were said to have been made was contested at trial and is the subject of grounds 1 and 4 of the appeal. On 13 September 2018, the Court ordered that the appeal be allowed and a retrial was ordered. My reasons follow.
The charged acts
It is necessary to canvas the evidence adduced by the prosecution at both the first and second trials in support of those charges.
Counts 1 and 2 were charges of indecent assault. The prosecution alleged that at the family home in Renmark, when CW was 10 years old, the applicant asked her to come into his bedroom and sit on the corner of the bed. CW’s mother and brother were said to have been at home at the time. When CW was sitting on the bed, the applicant moved her legs apart, pulled her skirt down over her knees and digitally penetrated her vagina (Count 1). After the digital penetration, the applicant performed cunnilingus on CW while she sat on the bed (Count 2).
Counts 3 and 4 were alleged to have occurred about a week after Counts 1 and 2. Again, the applicant called CW into his bedroom while her mother and brother were also in the house. The applicant asked CW to sit on the bed and digitally penetrated her (Count 3). The applicant then performed cunnilingus on her (Count 4). CW gave evidence that the applicant said “I’m doing this because I love you. It is our secret. You can’t tell anyone, not even mummy”.
The indecent assault the subject of Count 5 was alleged to have occurred before CW turned 11. The prosecution alleged the applicant made CW lie down on the kitchen floor and then the applicant placed his penis against her vagina.
In relation to Count 6 the prosecution alleged that the applicant engaged in penile vaginal sex with CW on the kitchen floor at Renmark when she was 11 years old. Count 7 was an allegation of penile vaginal sexual intercourse with CW in the master bedroom while she was still in primary school. Count 8 was a further allegation of penile vaginal sex in the bedroom, again while CW was in primary school.
The uncharged acts
Generalised allegations of sexual abuse in locations other than the Renmark house was led as discreditable conduct evidence. CW gave general evidence that the applicant sexually abused her regularly from when she was 10 years old until she was in her early 20s.
CW also gave evidence as to some specific instances of uncharged offending. This included evidence as to the first time that the applicant made her masturbate him in the kitchen, an instance of anal sex when CW was in her mid-teens and the final act of abuse when CW was in her early 20s.
The alleged admissions
The first trial
Prior to the first trial commencing the applicant sought the exclusion, from the prosecution case, of a letter sent by CW to her father dated either 30 June or 1 July 2014. The letter contained allegations that the applicant had sexually abused her. The prosecution alleged that the applicant made admissions having received the letter.
It is necessary to put the letter in context. The evidence at trial established the following matters.
CW gave evidence that for many years after the sexual abuse stopped she maintained a cordial relationship with the applicant. The applicant had separated from CW’s mother. Her mother was ill and by 2014 had moved into a care facility and the family home was vacant. There was a plan to sell the home. The letter was written and sent by CW after an incident that occurred in 2014 when she and the applicant were cleaning up their old house at Renmark in preparation for the sale.
CW assisted the applicant to clean the house. CW and the applicant had a verbal disagreement. CW gave the following evidence as to what she said to the applicant:
Yeah, I was really angry and upset. I turned around and was yelling at him. I said “Yeah, well how about your behaviour how about what you did to me: ‘I’m doing this because I love you and it’s our secret and you can’t tell anyone”.
The last comment was a reference to the words that the applicant had allegedly uttered at the time that Counts 3 and 4 were committed. CW gave evidence the applicant said that he had failed her as a father and did not deny her allegation.
After this confrontation CW wrote a letter to the applicant. In the letter, CW made specific allegations of sexual abuse against the applicant. After sending the letter, CW rang the applicant to make sure he had received it. She alleged that during the telephone call he acknowledged receipt of the letter and said that he had failed CW as a father and was sorry for what he had done to her “all those years”. CW said the applicant did not deny the offending.
Counsel for the applicant, at the first trial, objected to the letter being led in evidence. The prosecution submitted that the letter was admissible.
The trial Judge at the first trial heard submissions on the voir dire. The first trial Judge ruled on the admissibility of the letter as follows:
I think in the circumstances I would rule that the DPP not be permitted to tender the letter or advert to its contents other than in a general sense to set the context for the other evidence to be given by the complainant. It is my view that the letter itself is more prejudicial than probative and that the context can be set without the need to tender that document.
Thus, the prosecution could not tender the letter but could refer to its content in “a general sense” so the purported admissions of the applicant during the telephone call would have some “context”. The parties dealt with the ruling by way of an agreed fact that complied with the first trial Judge’s ruling. The agreed fact did not suggest that the letter contained specific allegations of sexual offending comprising of or consistent with the charged offences. It was only agreed that there were specific, but undisclosed, allegations of sexual offending.
The second trial
The first trial Judge’s ruling on the letter was not challenged at the second trial and so the second trial Judge (the ‘trial Judge’) was bound by it. The parties proceeded at the second trial using the same agreed fact. Consistently with the ruling of the first trial Judge, the prosecution did not tender the letter or introduce evidence of its contents, other than CW saying that it raised the topic of sexual abuse.
On the topic of the letter, the prosecutor said in her closing address:
[CW] confronted her father for a second time but this time it was a letter that she wrote to him. You might only have [CW’s] word for what she said the first time but in respect to the letter, you have an agreed fact; it means that you can accept that it’s agreed between defence and the prosecution.
…
Put yourself in his shoes, ladies and gentlemen. Imagine being an innocent man confronted with very specific sexual allegations in writing by your daughter of this magnitude. It’s difficult to imagine how you’d respond but would you do nothing? We know the accused didn’t ring his daughter when he got the letter. He didn’t ring her in a state of utter confusion and outrage about these untrue allegations, he waited for her to call. He waited for her to call to confirm that he’d received the letter.
The prosecution case was that there were two occasions when admissions were made – the applicant’s response to CW’s comments during the Renmark conversation, and the applicant’s response to CW during the telephone conversation after the letter was sent.
During the trial Judge’s summing up, the jury, on two separate occasions, queried why the letter was not in evidence. The trial Judge answered the questions posed by the jury about the letter and also directed the jury as to the use that could be made of the admissions. The applicant complains about those directions.
The appeal
The applicant appeals on four grounds. Grounds 1 and 4 allege errors in the directions given about the letter and alleged admissions. Ground 2 relates to the admission of evidence given by someone other than the complainant about the delay in the complaint. Ground 3 complains of a failure by the trial Judge to give a “Markuleski” direction.[3]
[3] R v Markuleski (2001) 52 NSWLR 82.
Grounds 1 and 4 overlap and it is therefore convenient that they be dealt with together.
Grounds 1 and 4
The applicant complains about the trial Judge’s directions to the jury on the question of why the letter was not before them and, also, the use that could be made of the alleged admissions.
It is necessary to discuss the background relating to the letter which was not before the jury. The genesis of the problem lay in the first trial Judge’s ruling on the admissibility of the letter.
As mentioned, at the first trial, the applicant sought the exclusion of the letter. The applicant submitted that the letter was an out of court statement consistent with the allegations the subject of the trial and therefore inadmissible. It would impermissibly bolster the credit of CW if admitted. Further it was submitted, it contained irrelevant material and it was more prejudicial than probative.
With any issue regarding the admissibility of evidence it is important to determine two questions. First, for what purpose is the evidence led and secondly to what fact in issue does the evidence go to prove (or disprove)?
The prosecutor, in both her written and oral submissions on the voir dire, addressed both questions. The prosecutor submitted that the applicant had made informal admissions to CW. An out of court statement, including that of an accused, is prima facie hearsay and inadmissible.[4] An exception to this rule is an informal admission by words made by an accused. The words spoken are admissible against an accused as to the truth of the admission. What a party admits to be true may reasonably be presumed to be so.[5] But what of the contents of the letter, on which the admissions were based, which was an out of court consistent statement of CW?
[4] R v H,ML [2006] SASC 240 at [25]-[27] per Vanstone J; R v Helps (2016) 126 SASR 486.
[5] Slatterie v Pooley (1840) 151 ER 579, 581.
The prosecutor accepted that, generally, evidence of a prior consistent statement is hearsay evidence and cannot be admitted for a testimonial purpose. Nor, ordinarily, can it be admitted to aid in the assessment of, that is to bolster, the credit of a witness.[6] However the purpose for which such evidence is to be led is the important factor. It was necessary for the prosecution to prove what the applicant was alleged to have admitted. As the prosecutor submitted, without the letter and therefore the precise allegations made by CW, the jury would not know to what the accused was admitting. In this case, it appears from the submissions before the trial Judge and on appeal (the letter not being before this Court), that the allegations contained in the letter were consistent with the allegations, at least in relation to some counts, made by the complainant in court. Correctly in my view, the prosecutor submitted that the purpose of the tender of the letter was to give meaning to the alleged admissions made by the applicant. The letter was not being used for a testimonial purpose nor to boost the credit of the complainant. A simple direction to the jury about its proper use (or redaction of any irrelevant passages) would have cured any potential prejudice.
[6] R v Bucca and Castle [2018] SASCFC 42 at [129].
By way of illustration, if CW had not sent the letter but confronted the applicant verbally with a specific allegation, there is no reason why the allegation made direct to the applicant would not be admissible if there was an answer that was potentially inculpatory (assuming appropriate directions about not using CW’s statement for another purpose beyond giving meaning to the alleged admission). This would be so even if the words spoken by CW were consistent with her evidence in court. It is often the case that during a formal record of interview with police specific allegations of a complainant are put to an accused and his or her comment invited. Such a procedure is commonly adopted and, with appropriate directions, no difficulties arise.
It should be noted that if the prosecution could not prove what was being admitted by the applicant in the letter, it is difficult to see how an applicant could “explain” the admissions.
Further, the prosecution sought to use the letter to show that the admissions related to the charges (or at least some of them) on the Information. That is the admissions, if proved, could be used by the jury as evidence in determining the guilt or otherwise of the applicant of at least some of the specific charges. The admissions, it was submitted, went to those “facts in issue”.
It was open to the first trial Judge to totally exclude the evidence of the alleged admissions and therefore the letter. However, she did not do so. The first trial Judge ruled as follows:
… the DPP not be permitted to tender the letter or advert to its contents other than a general sense to set the context for the other evidence to be given by the complainant. It is my view that the letter itself is more prejudicial than probative and that the context can be set without the need to tender that document.
The first trial Judge did not explain why the letter was more prejudicial than probative. The first trial Judge permitted the prosecution to lead evidence of the contents of the letter “in a general sense to set the context for the other evidence to be given”. The Judge did not explain what she meant by “the context”. It is this ruling which led to the difficulties that eventually emerged. The ruling did not allow the prosecution to prove which allegations the applicant admitted. Further the ruling permitted the prosecution to lead evidence of admissions of general evidence of sexual misconduct not necessarily related to the specific charges.
The parties then agreed a fact which was put before the jury as follows:
The letter sent by [CW] to the accused in June or July 2014 set out specific allegations of sexual offending against her by him and advised him that she no longer wished to have anything more to do with him or his partner...
This agreed fact conforms, in general, with the first trial Judge’s ruling. However, the agreed fact does not give any context to the “specific allegations” thus creating the problem, when the evidence was led, of the jury not knowing what the applicant was said to be admitting. To what “fact in issue” the admissions were said to be relevant was unknown.
Put another way, the agreed fact did not assist in determining whether “specific allegations of sexual offending” were referrable to the charged acts, the uncharged acts, a combination of both or were in fact allegations of other, but unspecified, sexual offending by applicant. The “admissions”, if the jury found them to be so, became admissions of unspecified sexual offending with the complainant. That is the admissions were not specific to any count.
The ruling changed the nature of the evidence sought to be adduced by the prosecution and the trial Judge’s directions needed to reflect that change. The admissions could only be used as evidence of sexual attraction (or relationship evidence as it is sometimes called). Whilst evidence of sexual attraction may support, and in some circumstances strongly support, allegations of specific acts, the jury had to be carefully directed as to the use that could be made of such evidence and further, that the jury could not convict, despite the admissions, unless satisfied beyond reasonable doubt that each charged act occurred as particularised as to time, place or occasion.
The initial directions (ground 1)
On the topic of admissions, the directions the subject of ground 1 are as follows:
On both occasions, as argued by the prosecution, what was said by the accused amounts to an admission of the sexual offending. This is a matter for you to determine. However, before you could conclude that it is in fact an admission to the sexual offending and not as Mr Morrison said either an outright lie on the part of [the complainant], or the statement made by the accused was in relation to some other failing, you would need to be satisfied beyond reasonable doubt of two things: firstly, that the accused actually said the words that [the complainant] gave evidence of, and secondly, that the words said are a reference to sexual assaults by the accused against [the complainant] and not something else, such as abandoning the family or taking up with [the applicant’s partner] or something else entirely.
If you are satisfied that the words amount to an admission then you can take them into account when considering whether the prosecution have proven each element of the charged offences. As these two occasions were separate occasions you will need to consider the evidence in relation to them separately.
If you are not satisfied that these words were said, or that they relate to the allegations of sexual abuse, then they cannot be used by you when considering the credibility of [the complainant] generally. They cannot then be used to advance the prosecution case.
They can, however, be taken into account if you were to consider that they had not been said and you do not accept [the complainant] that they were said. They could be taken into account by you when you are considering her credibility generally and whether you accept her evidence in relation to the offences having occurred.
(Underlining added)

The trial Judge directed the jury, as emphasised in the underlined passage above, that the statements made by the accused amounted to an admission of the sexual offending. That is not correct. The admissions, if found proved, were not admissions of the sexual offending charged but rather to more unspecified “allegations of specific sexual offending”, as outlined in the agreed fact. Having directed the jury in those terms the trial Judge then directed the jury that they could take the admissions into account when considering whether the prosecution had proved each element of the charged offences.
When those two directions are read together, and in the context of the trial, the jury was directed that the admissions related to each offence charged and could be used as direct evidence to prove each element of the charges. For the reasons given above, the admissions could not be used in that way.
I accept that the admissions were relevant to whether there was, in fact, a sexual relationship and therefore relevant to the credibility of the complainant. That is the admissions did have evidential value even though they did not on the evidence before the jury relate to any specific charge. The admissions could be used as evidence of sexual attraction.
The respondent submitted that the trial Judge’s directions did no more than suggest that the admissions could “be taken into account” when considering the specific counts. The respondent further submitted that it would have been obvious to the jury that the admissions were to a “sexual relationship”.
I reject those submissions. The trial Judge did give clear directions as to the fact that the jury had to be satisfied beyond reasonable doubt that the words were in fact said by the applicant before the jury could use them in any way. However, the trial Judge also gave a clear direction to the jury that what was said amounted to an admission of the sexual offending. The terms of the directions, when viewed together, invited the jury to reason that the admissions were in fact admissions of the offences charged. What was required was a direction as to the use that could be made of the admissions as evidence of sexual attraction. The jury was not directed as to how it could permissibly use the admissions.
The impugned directions suggested to the jury that they might use the applicant’s alleged admissions as positive evidence of each of the charges on the Information. That was an error.
The subsequent directions (ground 4)
The applicant further complained about the trial Judge’s directions responding to the questions posed by the jury about why the letter was not in evidence.
The context in which the two jury questions were received is important. The first question was received partway through the trial Judge’s summing up. The trial Judge simply directed the jury that the letter was not admissible but the jury had the agreed fact referring to the contents of the letter containing “allegations of sexual abuse”. No complaint is made about that direction.
The second note from the jury came after it had been deliberating for some time. The jury separated overnight and reconvened to deliberate the next morning. At about midday the trial Judge gave a Black direction and just over two hours later, the jury enquired about the letter for a second time. The note read:
Can we have further clarification on why the letter from [CW] to her father, June or July of 2014, is not admissible? There are members of the jury who question the content and why it is not deemed relevant. Her agreed facts point 14.
The trial Judge then re-directed the jury in the following terms:
Statements made outside court are generally not admissible in the courtroom unless they are permitted for some particular reason. A statement made outside court such as a letter that is written by a complainant is not admissible to prove that she has given a consistent version of events in it. It can be the subject of cross-examination if it contains statements that are inconsistent from her evidence in court. There was no such examination by Mr Morrison.
In contrast, you had cross-examination about inconsistencies between the statement that she made to the police and her evidence in the last trial with her evidence that she gave before you in this trial. You know from agreed fact No. 14 that it is agreed that that letter contained allegations of sexual abuse. You also know that there was no cross-examination suggesting that what she said in the letter was inconsistent with her evidence before you in this courtroom. Beyond that, you should not speculate as to what was said by her in that letter.
Counsel for the applicant at trial objected, at the time, to the trial Judge directing the jury in those terms.
It is clear from the jury’s two questions that they were understandably curious and puzzled as to why the existence of the letter was revealed to them by way of an agreed fact, but the contents were not available for them to consider.
The applicant submitted that the curiosity of the jury was not a proper basis for the direction given by the trial Judge. The ruling at the first trial was that the contents of the letter could not be led before the jury. The question required no more than a direction that the jury had the agreed fact before it and should not speculate about the contents of the letter. That is the way in which the trial Judge directed the jury in response to the first question.
The second direction of the trial Judge, although initially unremarkable, turned to the question of cross-examination on out of court statements. This part of the direction potentially conveyed to the jury that although the contents of the letter was not before it, it could infer from the lack of cross-examination on any inconsistencies, that the complainant’s evidence in court was consistent with the contents of the letter. The contents of the letter had been excluded by the earlier ruling and counsel for the accused was entitled to conduct the case on that basis. Counsel’s cross examination of CW had not opened up the topic of the contents of the letter such that the contents could be led by the prosecution. The prosecution did not suggest it had.
It is important to note that the prosecutor, when addressing the jury, had not suggested that the contents of the letter were consistent with the complainant’s evidence. The prosecutor, correctly, had only directed the jury’s attention to the reaction of the applicant (or lack of reaction) when he received the letter and his comments during the later telephone call. However, the trial Judge’s direction went much further than the prosecutor’s submission.
The direction was at the very least apt to encourage the jury to speculate impermissibly about the contents of the letter which had already been ruled inadmissible. Further it tended to suggest that the contents of the letter were consistent with the complainant’s evidence in court. It is true that the Judge went on to direct the jury not to speculate as to what was said in the letter “beyond that” but the harm was in the direction itself.
The trial miscarried because of the directions in response to the jury questions. It also miscarried due to the directions about the admissions. It was not suggested by the respondent that the Court could apply the proviso if it considered the directions complained of the subject of either Ground 1 or 4 were in error.
Permission to appeal should be granted in relation to Ground 1 and Ground 4 and the appeal should be allowed.
Given the resolution of the appeal on these grounds it is unnecessary to consider grounds 2 and 3.
Orders
On the 13^th of September 2018, the Court ordered that the appeal be allowed and I would confirm the orders as follows:
1       Permission to appeal is granted on grounds 1 and 4.
2       The appeal is allowed.
3       The appellant’s convictions are set aside.
4       The matter is remitted to the District Court for a new trial.