R v W, P R - [2005] SASC 463

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v W, P R
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice White)
14 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appeal against six convictions recorded in the District Court on two counts of unlawful sexual intercourse, two counts of attempting to dissuade a witness from giving evidence, two counts of breach of bail - on appeal - consideration of the issue of joinder between counts as a matter of law and also as a discretion of the trial Judge - consideration of the lack of direction on the use of evidence between counts - consideration of the consistency of verdicts between counts - consideration of whether, in the circumstances the verdict is unreasonable - appeal allowed.
Criminal Law Consolidation Act 1935 s 278(1), referred to.
R v Barrell & Wilson (1979) 69 Cr App R 250; R v Liddy (2002) 81 SASR 22, considered.

R v W, P R
[2005] SASC 463
Court of Criminal Appeal: Doyle CJ, Sulan and White JJ

DOYLE CJ: Mr W appealed against six convictions recorded in the District Court after a trial before a jury.
After hearing the appeal, the Court allowed the appeal in part. The Court set aside two of the convictions, and ordered a retrial of the relevant charges on the Information. The Court dismissed the appeal in relation to the other four convictions.
These are my reasons for joining in those orders.
The charges
The Information contained eight counts.
Counts 1, 2 and 3 charged the offence of unlawful sexual intercourse with Ms P A, a person under the age of 17 years.
Count 1 alleged an offence between February 1998 and February 1999. Counts 2 and 3 alleged offences between 21 December 2002 and 23 December 2002. These alleged offences occurred in the course of a single incident.
Count 4 alleged an offence of indecent assault on Ms P A. This was alleged to have occurred between January 2003 and May 2003, but the evidence at trial was to the effect that it occurred in about May 2003.
After being questioned about the allegations made by Ms P A, and having been charged with the first four offences, Mr W was released on bail. A condition of the bail was that he not contact Ms L C. She was a prospective witness at the trial of the first four charges.
Count 5 alleged that in December 2003 Mr W attempted to dissuade Ms L C from giving evidence. Count 6 alleged that this was a breach of Mr W’s bail agreement. Count 7 alleged that in August 2004 Mr W attempted to dissuade Ms L C from giving evidence. Count 8 alleged that this was a breach of Mr W’s bail agreement.
The jury found Mr W not guilty on count 1 and count 4. He was found guilty on the other six counts.
The trial
As there is to be a retrial, I will be as brief as I can in relation to the facts.
Ms P A is the daughter (by another man) of Mr W’s wife. Ms L C is also a daughter (by another man) of Mr W’s wife, and is about a year younger than Ms PA.
The prosecution case at trial was that the offences against Ms P A were committed as part of a course of conduct by Mr W that began in about 1997, when Ms P A was ten years old. Mr W had been living with Ms P A’s mother and her children for about four years, according to Ms PA, when the course of conduct began.
It suffices to say that Ms P A described a course of conduct beginning in about 1997. It began with Mr W touching Ms P A’s breasts and vagina. According to Ms P A this tended to happen when her mother had gone shopping, or had left the home for some other reason. The touching progressed to other sexual acts, including getting Ms P A to masturbate Mr W, digital and penile intercourse and acts of fellatio.
In her evidence Ms P A described a number of incidents not the subject of charges. Two of these in particular were witnessed by Ms L C.
Ms L C gave evidence of incidents which appeared to be the two incidents described by Ms P A, which Ms P A said Ms L C saw.
Ms P A also gave evidence of each of the incidents, the subject of counts 1 to 4.
Count 1 was identified as an occasion when Ms P A’s mother had been admitted to hospital. Ms P A said that Mr W asked her to come into his bedroom one night, and then engaged in a number of sexual acts, including penile intercourse.
Ms P A said that the sexual relationship continued after that, but not involving acts of intercourse.
Ms P A identified counts 2 and 3 as occurring shortly before Christmas in 2002 or 2003. She added that it was the Christmas before she left home, which suggests that it was Christmas 2002. At the time she was sleeping in a caravan at the house. Ms L C was also sleeping in the caravan. Ms P A said that at night Mr W knocked on the window of the caravan, and asked her to go into a shed with him. There he caused her to perform an act of fellatio on him and then he caused her to get into a motor car parked on the property where he engaged in an act of penile intercourse.
Count 4 was described by Ms P A as the last incident that occurred before she ran away from home, which she did in about May 2003. Count 4 was an act of indecent assault, involving Ms PA touching Mr W’s penis.
Having regard to the matters argued on appeal, it is convenient to outline the sequence in which certain events happened from about May 2003.
As I have already said, Ms P A left the family home in May 2003, shortly after the incident, the subject of count 4. She said that she did not complain before May 2003 about what Mr W was doing, because she did not want to break the family up. She went to live with Ms C for a few days, and then with Ms S. Ms P A was about 16 years old when she left the family home. She has not lived with the family since then. She stayed with Ms S for about 12 months.
I gather that Ms P A first complained to the police about Mr W’s conduct on 1 July 2003. The statement that she made raised only the incidents, the subject of counts 2 and 3, on which Mr W was found guilty.
Ms S gave evidence that within a few months of Ms P A going to live with Ms S (the evidence of Ms S was no more precise than that) there was an occasion when Ms P A was very upset. I add that Ms S said that Ms P A was “very frightened, very scared, very timid” when she came to live with Ms S. Ms S described an occasion when Ms P A was upset and crying. When Ms S asked if there was anything she could do to help, Ms P A said that nobody could help. She was “throwing things around”. In the course of this, she said to Ms S that Mr W “didn’t do it”, apparently referring to the allegations she had made to the police. About half an hour later, when Ms P A had calmed down, and Ms S spoke to her again about what she had said, Ms P A said “she was scared and frightened and that he did do it”.
Ms P A denied that this conversation took place.
On 7 August 2003 Ms L C made a statement to the police, describing an instance of alleged misconduct by Mr W on New Year’s Eve 2000.
On 8 November 2003 Ms P A made a further statement to the police. For the first time she alleged the incidents the subject of count 1 and count 4.
The conduct the subject of count 5 and count 6 is alleged to have occurred in December 2003.
Ms S also described an occasion in the middle of 2004 when she and Ms P A had an argument, because Ms P A had failed to come home at the time she was told to come home. Ms S had observed Ms P A with her then boyfriend, and had been critical of her behaviour. In the course of an angry argument, Ms P A was “yelling things” and threatening to leave. In the course of this she threatened to accuse Ms S’s husband “of allegations” as she had done in relation to Mr W. This led to an even angrier argument after which Ms P A left to live elsewhere.
Count 7 and count 8 are alleged to have occurred in August 2004.
In September 2004 Ms L C informed the police about the alleged attempts by Mr W to dissuade her from giving evidence, and later that month she retracted the statement that she made on 7 August 2003. In October 2004 she retracted the retraction, affirming what she had said to the police in August 2003. In October 2004 Ms P A described to the police some further incidents involving Mr W.
In August 2005 Ms P A and Ms L C each added some further detail to their statements. The trial began on 8 August 2005.
Ground 1 and Ground 2
At the start of the trial counsel for Mr W submitted that the joinder of counts 1 to 4 with counts 5 to 8 was not permissible as a matter of law. He submitted that the Judge should in any event exercise his discretion and direct that counts 5 to 8 be tried separately. The Judge rejected each submission. On appeal each of those decisions is challenged.
Section 278(1) of the Criminal Law Consolidation Act 1935 (SA) permits joinder of charges:
… if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.
There is no reason to interpret these words narrowly. There is authority for the view that offences of a different legal character can be described as “founded on the same facts” if the relevant offences have “a common factual origin”: R v Barrell & Wilson (1979) 69 Cr App R 250. This approach was approved by this Court in R v Liddy [2002] SASC 19; (2002) 81 SASR 22 at [122]-[123] Mullighan J, at [512] Williams J, at [560] Gray J. This test is not to be applied unthinkingly, nor is it a substitute for the statutory expression. It was the prosecution case that the events the subject of counts 5 to 8 arose out of and had their origin in the laying of the charges the subject of counts 1 to 4. The prosecution allegation was that the conduct the subject of counts 5 to 8 was an attempt by Mr W to secure an acquittal on counts 1 to 4. It was a strong case for joinder. I consider that the joinder was correct as a matter of law.
The Judge exercised his discretion against directing a separate trial of counts 5 to 8. I consider that it was open to him to do so, and that the reasons he gave were sound. Subject to a point to be mentioned, no miscarriage of justice has resulted.
The circumstances justifying the exercise of the Judge’s discretion are these. Ms L C was an important witness for the prosecution on the trial of counts 1 to 4. If there were a separate trial of those counts, she was likely to be cross-examined about the retraction of her statement, and so evidence of conduct the subject of counts 5 to 8 was likely to emerge. It was preferable that she should not have to give evidence twice. If there were a separate trial of counts 5 to 8, the jury would have to have some of the background to those counts. Ms P A might well finish up being a witness at that trial, and so have to give evidence twice.
Of particular significance is the consideration that evidence of the conduct the subject of counts 5 to 8 was admissible on the trial of counts 1 to 4 as evidence of conduct by Mr W that indicated, on his part, a consciousness of his guilt. That is a reason the Judge gave for refusing to order separate trials.
However, ground 2 complains that the Judge failed to direct the jury about how to use the evidence the subject of counts 5 to 8 when considering counts 1 to 4. The Judge gave no direction at all on this topic.
On the face of things, there was an obvious need to direct the jury, when considering the evidence of Ms L C, that a possible explanation for Mr W’s conduct (if it occurred) was that he was innocent, and that he had unwisely tried to dissuade Ms L C from giving evidence because he feared that he would be convicted although he was innocent. If no such direction was given, there is a danger that the jury would assume that if Ms L C’s evidence was true, the only explanation for Mr W’s conduct was that he was guilty of the offences the subject of counts 1 to 4.
The Judge specifically directed the jury not to reason that because they were satisfied that one or more of the uncharged incidents occurred, they could conclude that Mr W was guilty of one or more of the charged acts. The Judge should also have directed the jury that they should not reason that because they were satisfied that Mr W attempted to dissuade Ms L C from giving evidence, that that of itself was evidence of his guilt on the charges relating to Ms P A.
Each of these directions was desirable in the interests of a fair trial.
Ms McDonald, counsel on appeal for the Director, acknowledged the difficulty resulting from the failure to give any such direction to the jury. She argued that there was no risk of a miscarriage of justice. In his opening address the prosecutor invited the jury to infer that the explanation for the conduct the subject of counts 5 to 8 was that Mr W was guilty of counts 1 to 4. But that invitation was not repeated or referred to in the closing addresses. As well, the trial Judge told the jury that there was “no independent support for any of those four charges” [counts 1 to 4]. The Judge gave a clear and careful direction about the need to scrutinise the evidence of Ms P A with great care. He warned the jury about the difficulty that the defence faced, having regard to the failure to make a prompt complaint. He reminded them of the piecemeal nature of the allegations made by Ms P A and Ms L C. Ms McDonald submits, in effect that the Judge told the jury to disregard the evidence bearing on counts 5 to 8 when considering counts 1 to 4.
I am not persuaded that the jury would have so understood the directions that they were given. In any event, the risk of the jury misusing the evidence the subject of counts 5 to 8 is such that Mr W was entitled, as part of a fair trial, to a direction warning the jury against the misuse of that evidence. The risk is not removed by the directions that the Judge gave.
The failure to give any direction warning against the misuse of this evidence is a significant flaw in the summing up. The failure of either counsel to raise the matter with the trial Judge is regrettable, but is not a reason to decline to act on the flaw. On that basis, the convictions on counts 2 and 3 must be set aside. The omission in the summing up has no impact on the convictions on counts 5 to 8.
Ground 3
Leave to appeal was refused on this ground.
Ground 4
The first submission by Ms Brown under this ground is that the verdict of guilty on count 2 and count 3 is inconsistent with the acquittal on count 1 and count 4. I disagree. There were circumstances that might well have led the jury to conclude that they were not satisfied beyond reasonable doubt that counts 1 and 4 were proved, but that they were so satisfied in relation to count 2 and count 3.
The allegations the subject of count 1 and count 4 were not raised by Ms P A in her first statement to the police. There were aspects of the events the subject of count 2 and count 3 that might have led the jury to conclude that these particular incidents occurred as and when alleged. On the other hand, bearing in mind the long course of conduct, there were circumstances that might have left the jury unsatisfied that the conduct the subject of count 1 and count 4 occurred as and when alleged.
Having regard to the evidence before the jury, I can understand how the jury might have accepted the evidence of Ms P A as proving count 2 and count 3, but not as proving count 1 and count 4. They might have reached that conclusion without giving rise to any fundamental inconsistency.
Ms Brown further submits that there are difficulties with the evidence of Ms P A and Ms L C such that the jury could not reasonably find count 2 and count 3 proved. Accordingly, she submits that the verdict is unreasonable, in the sense that no jury properly directed could reasonably be satisfied beyond reasonable doubt of Mr W’s guilt.
Ms Brown pointed to the events set out in the chronology, to the piecemeal manner in which the allegations were made, and to the retractions referred to in the course of the chronology. As she said, it is clear that at some point Ms L C had told an untruth. As to Ms P A, Ms Brown pointed to the evidence of Ms S, and in particular to the threat of a false complaint by Ms P A. Ms Brown made the point that there were other weaknesses in the prosecution case.
Each point made by Ms Brown was made to the jury. Each point called for careful consideration. But these are pre-eminently matters for the jury. The jury would have understood that the matters referred to by Ms Brown might indicate that Ms L C and Ms P A were not reliable or truthful. But the jury would also have understood that these young women might have had great difficulty in coping with the emotions aroused by the events in question (if their evidence was true), with the tension which would inevitably accompany the events, and with the disruption to their family and to their family relationships. The matters pointed to by Ms Brown are not matters which, of themselves, lead to the conclusion that Ms P A and Ms L C are likely to be inherently unreliable witnesses.
In my opinion it was open to the jury to be satisfied of guilt beyond reasonable doubt.
Conclusion
For those reasons, I joined in orders which reflected my conclusion that while grounds 1 and 4 of the grounds of appeal should be rejected, ground 2 should be upheld.
Accordingly I joined in orders that the conviction on count 2 and on count 3 should be set aside and that there should be a retrial on those counts. I joined in the dismissal of the appeal against conviction on counts 5 to 8. The sentence imposed on Mr W was set aside, that being necessary as a result of partial success of the appeal. I joined in an order that Mr W should be re-sentenced after count 2 and count 3 have been disposed of.
SULAN J: I agree with the reasons of the Chief Justice.
WHITE J: I agree with the reasons given by the Chief Justice for the orders made by the Full Court on 22 November 2005. There is nothing which I wish to add.