R v Western

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WESTERN
[2015] SASCFC 148
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Blue)
8 October 2015
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES
Appeal against conviction. The appellant was convicted after a trial by Judge alone of two counts of indecent assault and three counts of unlawful sexual intercourse relating to three young boys IH, AS and MC. The appellant was acquitted of one count of persistent sexual exploitation of a child against a fourth complainant, KM. The offending was alleged to have taken place between 1973 and 1989.
At trial it was the appellant’s case that he knew each of the complainants but was an altruistic person and had a mentoring or fatherly relationship with each of the complainants. Relevantly, the appellant’s half-sister, Ms Pamela Western, gave evidence of uncharged discreditable conduct by the appellant.
Whether the learned trial Judge erred in admitting the evidence of the appellant’s step-sister. Whether the verdicts reached by the learned trial Judge in relation to the complainant IH are unreasonable or cannot be supported having regard to the evidence. Whether the learned trial Judge erred in admitting evidence of sexual conduct between the appellant and the complainants IH and MC as adults as evidence of sexual attraction relevant to the proof of the charged counts.
Appeal dismissed.
Held per Kelly J (Peek and Blue JJ agreeing) (dismissing the appeal):
1.      Ms Western’s evidence was correctly admitted for a legitimate propensity purpose and had strong probative value. It was capable of supporting the evidence of the complainants in that it confirmed an embedded behavioural proclivity on the part of the appellant to opportunistically engage in the alleged conduct, and against a particular class of child. It was also capable of rebutting the appellant’s defence of an altruistic association with each of the complainants. Ms Western’s evidence was of such strong probative value that it substantially outweighed the prejudicial effect of the evidence.
2.      It was open to the trial Judge to accept the salient features of IH’s evidence and be satisfied beyond reasonable doubt of the appellant’s guilt with respect to the charges relating to IH. It cannot be accepted that the trial Judge was not alive to the inconsistencies as to the timing in the evidence of IH. His Honour weighed these issues when considering the credibility and reliability of IH.
3.      There was no obligation on the trial Judge to make a specific finding in relation to IH’s mental health, and whether he suffered from paranoid delusions - the trial Judge was required to be satisfied beyond reasonable doubt that any psychotic disorder did not affect the reliability of his evidence concerning his interactions with the appellant. There was no link demonstrated between IH’s evidence with respect to his interaction with the appellant and his mental health issues. The trial Judge was entitled to rely on expert evidence in reaching the conclusion that there was no evidence of IH holding delusional beliefs in relation to the appellant at the time he gave his evidence.
4.      The evidence of consensual sexual intercourse between IH and the appellant when IH was aged 17, 18 or 19 is not so removed as to be without some probative force. That evidence was capable of showing sexual attraction to IH on the part of the appellant. The trial Judge accepted the evidence of MC that he had no sexual interaction with the appellant when he was 18 or 19 years old. His Honour’s observations with regard to the appellant’s sexual attraction to MC as an adult were purely hypothetical.
Criminal Law Consolidation Act 1935 (SA) s 49(3), s 69(1)(b); Evidence Act 1929 (SA) s 34P, referred to.
M v The Queen (1994) 181 CLR 487, applied.
R v C, CA [2013] SASCFC 137, considered.

R v WESTERN
[2015] SASCFC 148
Court of Criminal Appeal: Kelly, Peek and Blue JJ
KELLY J.
Introduction

The appellant was convicted after a trial by Judge alone of two counts of indecent assault on IH, contrary to s 69(1)(b) (as it was then) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), one count of unlawful sexual intercourse with AS, and two counts of unlawful sexual intercourse with MC, contrary to s 49(3) (as it was then) of the CLCA. The appellant was found not guilty of one count of persistent sexual exploitation of another child, KM.
The prosecution case was that the offending occurred over a period of time spanning the years 1973 to 1989. At the trial the prosecution led evidence of both charged and uncharged acts committed against each of the complainants. It was alleged that the offending occurred in relation to: IH, from about 1973 or 1974 until about 1976, when IH was aged between 11 and 14 years; in relation to AS, from 1979 to 1980 when AS was aged between 13 and 14 years; and in relation to MC, from September 1988 to early 1989 when MC was 15 years old.
The appellant gave evidence at trial. He agreed that he knew IH, AS, and MC but denied sexually abusing any of them. The tenor of the appellant’s evidence was that he was a generous and giving person whose interest in the boys was altruistic and, in the case of some of them, he had a father/son or mentoring style of relationship.
The grounds of appeal
The appellant argues three grounds of appeal. The first ground relates to the admissibility of evidence from the appellant’s half-sister, Pamela Western. The appellant complains that the learned trial Judge erred in admitting Ms Western’s evidence in proof of the charges relating to the complainants MC, AS, and IH on the basis that Ms Western’s evidence established a particular proclivity on the part of the appellant to commit the charged offences.
The second ground of appeal is that the verdicts in counts 2 and 3 in relation to the complainant IH are unreasonable and cannot be supported having regard to the evidence.
The third ground of appeal is that the Judge erred in admitting evidence of sexual conduct between the appellant and two of the complainants, MC and IH, after they had turned 18 as evidence of sexual attraction relevant to proof of each of the charged counts.
Background
The prosecution alleged that the appellant had a sexual relationship with each of the four young boys when they were aged between approximately 11 and 15. The appellant was aged between 22 and 35 years old at the relevant time.
The evidence of KM
The alleged victim of the first count on the information of which the appellant was acquitted was KM. KM was born in 1965 and was in the care of the State from his infancy until he was 18 years old. He first met the appellant while living at a home called Fullerton Cottage. There it was a regular occurrence that KM and other children resident would sneak out at night. KM’s evidence at trial was that he and his brother, DM, who was also in State care, became friendly with the appellant. KM first met the appellant at the Pancake Kitchen in Adelaide in about 1977. The appellant gave KM a Glenelg Taxis card and told KM that he would come and pick him up if KM rang that number. At that time KM was 12 years old and the appellant was around 24 or 25 years old.
KM’s evidence was that after that first meeting the appellant befriended KM and began picking him up to take him on outings such as to the movies, ten pin bowling and other recreations, or to his flat. On these outings the appellant would pay for everything including giving KM marijuana, cigarettes, alcohol and money. KM arranged to meet the appellant by calling Glenelg Taxis and asking the operator to be picked up by the appellant’s taxi number. KM gave evidence of numerous sexual assaults committed upon him by the appellant at various places around Adelaide. KM said that during his relationship with the appellant they engaged in mutual masturbation and the appellant would fellate KM, mostly at the appellant’s flat on Anzac Highway. Their sexual relationship ended when KM moved to Sydney at about the age of 13 or 14 years old.
The evidence of IH
The complainant the subject of the second and third counts, IH, was born on 21 March 1962. IH said he first met the appellant when he was selling newspapers outside the Austral Hotel in 1973 when IH was 11 or possibly 12 years old. He started selling newspapers in the Adelaide CBD with a school friend, Paul Bunn. IH gave a detailed account of his first meeting with the appellant on Rundle Street near the Austral Hotel. IH saw the appellant for a second time a few weeks later. This time he was selling newspapers at a stand on the corner of Gawler Place and Rundle Mall early one Saturday. The appellant approached IH and began a conversation with him. IH said that he began to abuse him because he did not like the questions the appellant was asking and also because Paul Bunn had previously told IH that he had been having problems with “… a man, who had visited him on a number of occasions.” IH thought that it might have been the same man.
Later however, IH said he was asked by the appellant if he would like to have a drink at The Blue Pumpernickel café, and he eventually agreed. There the appellant paid for him to play a game of pinball. IH agreed to go for a milkshake with the appellant at City Bowl after he had finished selling newspapers for the day. When they met later in the day the appellant drove IH in a taxi to the parklands where the events which were the subject of count 2 occurred.
After that first incident the appellant regularly visited IH’s newspaper stand. IH saw the appellant a couple of times a week for a period of two or more years. Their sexual interactions usually took place along the River Torrens near the weir or the golf course at night parked under trees. On one occasion IH met the appellant’s brother K and K’s boyfriend A. IH stopped selling newspapers and lost touch with the appellant and his friend Paul Bunn towards the end of 1973. However, about six months later, he re-established his friendship with Paul Bunn and recommenced selling newspapers. IH and the appellant recommenced their sexual relationship and it continued for a number of years. On an occasion shortly after the appellant bought a green taxi, the events the subject of count 3 took place in the back of the taxi near the golf course area on War Memorial Drive. IH said that on this occasion, as was usual after the appellant and he had sex, the appellant gave him $5.00.
IH gave evidence generally that on the first or second occasion after he had met the appellant, the appellant gave him a telephone number for a taxi company and told him to contact the operator and say he was the appellant’s cousin or nephew. IH regularly called the taxi company to arrange for the appellant to pick him up and he did this on occasions when he needed a lift or money. He recalled that the first time he used that number the telephone operator remarked “I think he’s got a lot of nephews”. The appellant also provided IH with alcohol and hashish. IH said the relationship with the appellant ended when he was about 14 years old because, according to IH, the appellant was more interested in another boy.
IH gave evidence that he and the appellant recommenced their sexual relationship some years later when IH was about 18. On one occasion when IH was 17 or 18 he went to the appellant’s mother’s home in Kensington, got drunk and smoked marijuana with the appellant. On this occasion he said they had anal sexual intercourse. Although the appellant had asked IH for anal sex when he was still a child they had never previously engaged in anal intercourse.
During cross-examination IH was asked about psychological and mental difficulties he had experienced, including anxiety and depression in about 2001. He was also asked about allegations he had made that he was followed by numerous people in different vehicles from about 2006 until as recently as a few months before giving evidence. The prosecution called Dr Raeside, a forensic psychiatrist, to give an opinion as to whether IH’s evidence was unreliable due to a mental illness. Dr Raeside’s opinion was that IH “most likely had suffered from an adjustment disorder with mixed anxiety and depressed mood in recent years”. He said that while IH was paranoid he was not delusional. Dr Raeside said that he saw no evidence that IH had a psychotic disorder. Dr Raeside expressed a view that IH’s paranoia was not associated with the appellant and that even if IH did suffer from a delusional disorder it would not necessarily impair his reliability in terms of his evidence relating to the appellant.
Paul Bunn gave evidence at the trial. He was the same age as IH and said that he met IH at school in about 1974. Relevantly, Paul Bunn’s evidence was that they sold newspapers from outside the Stag Hotel on Rundle Street and his recollection was that Rundle Street at that time ran all the way to King William Street, there being no mall or ‘Mall’s Balls’ sculpture. However, he did recall that the paving for Rundle Mall started while he was selling newspapers in that area. Agreed facts about the opening of Rundle Mall on 1 September 1976 and the installation of the silver balls sculpture on 5 November 1977 were tendered at the trial by consent.
The evidence of AS
The complainant the subject of count 5 of the information was AS. AS was born in 1965. When he was 11 or 12 years old he started selling newspapers at the Edinburgh Hotel in Mitcham after school. While selling newspapers at the Edinburgh Hotel, AS met a man called RH who worked at the hotel. One day 12 or 18 months after AS had begun selling newspapers at the hotel, AS was being bullied by other children at the hotel, and RH came to AS’ defence. That evening AS went with RH back to his nearby flat. They had a glass of beer and while AS and RH were watching television RH put his hand on AS’ leg and left it there. Shortly after, AS went home.
Either weeks, or a couple of months later, AS rode his bike to RH’s flat, which he had an open invitation to visit. AS and RH again had a beer and watched television and RH put his hand on AS’ leg again but then proceeded to rub AS’ leg and crotch area. This incident led to RH performing fellatio on AS.
Either weeks, or a month later the newspaper sale arrangements changed and AS started selling newspapers at the Torrens Arms Hotel in Kingswood. AS was either 12 or 13 years old at this time.
While selling newspapers at the Torrens Arms Hotel, AS was approached by the appellant, whom he had never met before. The appellant knew AS’ first name and said that “[RH] told me there was a really spunky guy working down here at the hotel”. That evening, AS observed the appellant playing 8-ball with another young boy of approximately AS’ age.
AS saw the appellant a second time some months later, when AS’ brother and the appellant were involved in a road accident outside of AS’ house. AS’ brother was driving his car, and the appellant was riding a motorcycle. The appellant had a passenger, a boy about AS’ age who AS did not know but with whom AS later became friends, TL. AS came out of his house to look at the scene of the accident and the appellant noticed AS observing, and told him that “[TL’s] staying with [RH]. You should come and see him”. At the time of the accident AS was 13 years old.
AS went to RH’s flat a couple of days later. TL was present and AS subsequently visited TL a few times at the flat and they became friends. They would play pinball and play records at the flat, and also drink alcohol and smoke marijuana. AS came to understand that there was a sexual relationship between RH and TL shortly after meeting TL. AS saw the appellant “more than five or six, seven or eight” times at RH’s flat over a period of some months.
On one occasion within approximately six weeks of the motorcycle accident RH, the appellant, AS and TL went out for an evening to Norwood Bowl, dinner at a restaurant, and briefly to the Mars Bar. Afterwards they all went back to RH’s flat and started smoking tobacco and marijuana, and drinking. TL and RH performed fellatio on each other in the living room. The appellant began to encourage AS to act in a sexual manner and the incident the subject of count 5 on the information took place. During the night a further act of sexual intercourse also took place between RH and AS.
AS saw the appellant again when he was approximately 17 years old, when the appellant was living in North Adelaide, and again in approximately 2002 or 2003 in a public setting. There was no sexual activity between the appellant and AS on these occasions.
In cross-examination, AS said that he did not know KM, but had seen him arrive at RH’s house with the appellant.
AS also agreed, after a previous statement was put to him, that a man called ‘Ray’ had fellated him on the couch in RH’s living room, while RH and TL were fellating each other on another couch. AS insisted that this incident was separate to the incident between him and the appellant.
The evidence of MC
The complainant the subject of counts 6 and 7 on the information was MC. MC was born in 1973 and became a Ward of the State after 1982. MC was fostered by a number of families and was sexually abused in one of those homes when he was 13 years old. In June or July 1988, when MC was approximately 15 years old, he started living in a group home in Salisbury Downs, where he lived until late 1990.
MC first met the appellant on 2 September 1988, which was the first day of that year’s Royal Adelaide Show, in the middle of the afternoon. MC was hanging around a stand outside the Jubilee Pavilion when the appellant approached MC and introduced himself as ‘Peter’. The appellant and MC had a conversation and after approximately 10 or 15 minutes the appellant asked MC if he wanted to earn $20.00. The appellant accompanied MC to a block of toilets, and directed MC into a cubicle with him, where the offending the subject of count 6 on the information took place. During the encounter, the appellant told MC that he was 35 years old and afterwards gave MC a $20.00 note.
MC saw the appellant again one day in late October or November 1988. MC was walking down Adelaide Arcade off Rundle Mall and visited a coin and stamp shop where he saw the appellant who MC remembered as the man ‘Peter’ from the Royal Adelaide Show. On this occasion the appellant said his name was Grant. At the appellant’s suggestion, MC met the appellant at the northern end of the arcade and they went to the basement of the John Martin’s department store and into a block of toilets. MC and the appellant went into a cubicle, where the incident the subject of count 7 occurred. The appellant again gave MC a $20.00 note.
MC saw the appellant again at the coin and stamp shop approximately once a week or once a fortnight. MC would stay at the shop for half an hour to an hour and speak with the appellant. On one occasion the appellant asked if MC would like to meet any of his friends. MC replied that he would and was instructed to go meet a man named ‘Joe’. When they met, Joe took MC to his house where sexual activity took place between MC and Joe. Afterwards, Joe gave MC $50.00.

In 1989, MC went to the Royal Adelaide Show again and saw the appellant with a young boy, approximately 14 or 15 years old. MC did not speak to them.
In approximately late December 1989 the appellant arranged for MC to meet two other men called K and A. MC formed the view that K and A were in a homosexual relationship, and in their early forties. During their first meeting MC went with them to a townhouse in Glenelg. There, A, K and MC engaged in sexual activity. Before leaving the house MC had lunch and was given $20.00.
After this incident MC only saw the appellant occasionally at the coin and stamp shop. It was MC’s evidence that there was no further sexual activity between MC and the appellant.
MC had a chance encounter with the appellant in late 1990 in the John Martin’s basement. Afterwards MC occasionally saw the appellant around Rundle Mall. MC formed the view that the appellant worked as a driving instructor as on one occasion at the end of 1990 the appellant gave MC a ride home in a car with a modified braking system. MC was also aware that the appellant had taxi plates at his home in Kensington. MC visited the house in Kensington five or six times, and on each occasion the appellant’s mother was present.
Contrary to the evidence of MC, the appellant said there was a consensual sexual episode with MC in early 1991, when he thought MC was 18 or 19. Later in 1991, the appellant said that MC stayed with him overnight in Kensington and the appellant woke to find MC making sexual advances, which he rejected.
The approach of the trial Judge
The trial Judge disbelieved the appellant on crucial matters.
His Honour carefully analysed the evidence of each complainant and in the case of IH, AS and MC concluded that he was satisfied beyond reasonable doubt of the truthfulness and reliability of each of the complainants on each of the charged occasions. In relation to KM, although his Honour was satisfied that the appellant did at some stage sexually abuse KM, he entertained a reasonable doubt about the credibility and reliability of KM’s evidence, particularly as to the timing of the alleged sexual encounters with KM the subject of count 1. The appellant was acquitted on count 1 and convicted on each of the counts concerning the other three complainants.
Ground 1: The admissibility of the evidence of Ms Western
The first ground of appeal raises the issue of whether the trial Judge was correct to admit the evidence of Ms Western insofar as it disclosed evidence of discreditable conduct on the part of the appellant. In order to discuss this ground of appeal it is necessary to set out the salient features of Ms Western’s evidence.
Evidence of Pamela Western
Ms Western, who was born in June 1945, is the half-sister of the appellant. In 1965 Ms Western embarked upon what turned out to be a successful television career. From about 1971 she and her husband and young daughter lived in a house on Le Fevre Terrace, North Adelaide. There was an upstairs flat in that house which the appellant and K rented.
Ms Western saw the appellant regularly and noticed a lot of young boys visiting her half-brothers in the upstairs flat. In fact, because there was such a predominance of young boys she queried K about the appellant’s sexuality.
In 1973 Ms Western and her family moved overseas; however she maintained contact with the appellant and learned that he was working as a taxi driver. She returned in 1976 and stayed in one of her step-father’s flats in Brighton. Whilst she was living at the Brighton flat the appellant brought young boys aged approximately 13 or 14 to visit her about three or four times. The appellant said they wanted to meet her as she was a well known television personality. On these visits Ms Western observed that the appellant was “quite physical with them. Like he would put his arm around them or touch their hair and say things like ‘Hasn't he got beautiful long eyelashes Pam?’ or ‘lovely hair’”. Eventually in late 1978 or 1979 Ms Western spoke to the appellant about what she had observed. They had the following conversation:
I said ‘Grant, it is beginning to worry me, I don't understand why the boys that I see you with and that you bring around here to meet me are so young. What are you doing with such young kids?’ and he said ‘I am helping them’. And I said ‘how are you helping them?’ and he said ‘Well, I help them to speak better and have better table manners and to have better personal hygiene’. And I said ‘What does that mean?’ and he said ‘Well, for instance, I get them to wash their penises after they have urinated because that makes oral sex better, nicer’.
Ms Western also recalled sometimes seeing the appellant with young boys aged approximately 13 or 14 when visiting her mother in Kensington. At the end of 1982 Ms Western and her family moved to the Blue Mountains in Sydney. The appellant visited in 1991. At that time Ms Western’s son was aged 12 and her daughter was 14. Ms Western became concerned when she observed the appellant taking a great deal of interest in her son. The appellant gave her son driving lessons and bought equipment to watch music videos which he set up in her son’s bedroom. This concerned Ms Western because her son’s bedroom door was always shut and the appellant drew the curtains and shut the window blinds. Ms Western said she made excuses to go into the bedroom without knocking to keep an eye on things. In particular, she recalled going into her son’s bedroom and smelling a strange smell which she now knows was marijuana. On one occasion when she went in there was a video playing with two men, one with a beard, and she heard the appellant say to her son “That man has got a beard, how would you feel about kissing a man with a beard”. Ms Western said that these observations made her think that the appellant was grooming her son. Ms Western told the appellant that he was no longer welcome in her house and asked him to leave.
Ms Western travelled to Adelaide in about 1996 and visited her mother in Kensington. In her evidence she recounted a conversation with her mother, who asked why Ms Western’s husband hated the appellant so much. Ms Western told her mother that it was because he hated paedophiles. Later that day, the appellant visited Ms Western. He angrily confronted Ms Western for telling his mother that he was a paedophile. Ms Western gave evidence of the following conversation:
Q.What did Grant say to you when you came out to confront him.
A.He was livid, he was furious. He said 'You told mum I was a paedophile' and I said 'But Grant you are'. And he said 'I never have sex with prepubescent boys' and I said 'What does that mean?'. And he said 'Before they grow pubic hair'. And I said 'So it doesn't matter how old they are, as long as they have got pubic hair, well that makes you a paedophile as far as I am concerned Grant'. And he said 'You never should have said that to mum'.
Q.Was there anything said after that.
A.Yes.
Q.Can you carry on please.
A.I said 'You never should have looked at my son's penis' and he said 'I only examined it to see if it was developing properly'.
Q.What happened after that conversation.
A.My father insisted that he leave.
Q.Did Grant leave.
A.Yes he did.
Q.Did you then at some point return to New South Wales.
A.No, Victoria.
Q.Sorry to Victoria.
HIS HONOUR
Q.You were probably prevented from telling us this, but did your son tell you that Grant had looked at his penis.
A.Well, after that incident when I walked into the bedroom and Grant had gone I said very carefully to him, he was only 12, 'Darling, did anything happen?' And he said 'We had pissing competitions out of the window' and so that is what I was thinking of when I said 'You shouldn't have looked at my son's penis', he didn't say anything - my son didn't say anything about the examining part, yeah.
Ms Western also gave evidence about the appellant’s holidays in the Philippines. She recalled the appellant “talking about young boys in the Philippines and how easy it was to get hold of them, any age”, and that “he knew someone in the Philippines called Papa Joe who used to get blokes – young boys for him.”
The appellant denied having a conversation with Ms Western in which he remarked about teaching boys to wash their penises because it makes oral sex better. He agreed that he had stayed with Ms Western in the Blue Mountains over Easter in 1991 for approximately 10 days but denied smoking marijuana with Ms Western’s son. He conceded he had spent more time with Ms Western’s son than with her daughter. The appellant strongly disagreed that he behaved inappropriately in any way towards Ms Western’s son and denied that he was told to leave her house. It was the appellant’s evidence that he never said anything to Ms Western about meeting young boys in the Philippines. The appellant described an incident in 1995 in Kensington when he arrived home and his mother “was in a state saying ‘Pam was calling you paedophiles’.” According to the appellant he immediately confronted Ms Western. He described the conversation as follows:
Q.What, if anything, did you say to her.
A.I said ‘Pam, what on earth have you said to mum?’. She said ‘I told her you were a paedophile.’
Q.What did you say.
A.I said ‘That’s a terrible word, that means sex with nine-year-olds and you should never say anything like that to mum, that’s terrible’.
Q.Was anything else said.
A.Pam – no, Pam didn’t say anything at that point. Brian came towards me with his fists and said ‘I think you should leave’.
The appellant denied that the topic of being a paedophile was otherwise ever raised between Ms Western and himself. The appellant claimed that Ms Western was homophobic and made negative homophobic comments.
The approach of the trial Judge to Ms Western’s evidence
The trial Judge admitted the evidence of Ms Western and found that it disclosed an admission by the appellant of a “sexual appetite or proclivity for young teenage boys”.[1] The Judge found that the evidence of Ms Western did not prove the appellant committed the offences, but was nevertheless capable of rebutting his defence of innocent association and provided a motive for the appellant to engage in the alleged conduct. His Honour’s findings were expressed in the following paragraph:[2]
Pamela Western’s evidence is evidence of ‘a particular propensity or disposition of the defendant…’, within the meaning of s 34P(2)(b) of the said Evidence Act. It is circumstantial evidence of a fact in issue namely, whether he in associating with the Complainants was pursuing an opportunity to sexually abuse them or whether he was doing so for altruistic reasons. In using the evidence of Ms Western in this way I give myself the directives previously mentioned (see s 34P(3) and s 34R(2).
[1] R v Western [2014] SADC 97 at [356].
[2] R v Western [2014] SADC 97 at [358].
In reaching this conclusion the Judge relied principally on the reasoning of Kourakis CJ in R v C, CA.[3]
[3] [2013] SASCFC 137.
In my view the trial Judge was correct. Having regard to the issues at trial, the evidence of Ms Western was correctly admitted for a legitimate propensity purpose. It possessed strong probative value in relation to a critical issue at the trial, namely, whether the appellant had a purely altruistic motive in befriending the complainants as he claimed or whether he engaged in sexual conduct with the complainants in exchange for money, food and treats.
The evidence of Ms Western was relevant to and supported the evidence of the complainants in that it tended to confirm the existence of an embedded behavioural proclivity to engage in conduct of the kind charged whenever the opportunity arose. This topic was discussed by Kourakis CJ in C, CA:[4]
The permissible forms of reasoning allowed by s 34P of the Evidence Act are, speaking broadly, twofold. First, if the discreditable conduct evidence is strongly probative of the existence of a behavioural proclivity to engage in conduct of the kind charged whenever an opportunity arises, it is permissible to use that evidence as an item of circumstantial evidence indicating guilt. The second form of reasoning is improbability reasoning which has a probative force independent of any proclivity. The improbability can arise from a wide range of circumstances and in many different ways. Common examples include “cauliflower ear” similarity in modus operandi, coincidental presence or involvement in the place or circumstances of the crime for which an innocent explanation is improbable, and the improbability of complainants independently fabricating similar accounts.
[footnotes omitted]
[4] R v C, CA [2013] SASCFC 137 at [77].
Ms Western’s evidence was an item of circumstantial evidence which pointed towards the appellant’s guilt when viewed alongside the evidence of the complainants. It also tended to establish the improbability of the complainants each fabricating similar accounts about the appellant’s conduct towards them.
Ms Western’s evidence disclosed a sexual interest on the part of the appellant in a particular class of child, namely, pubescent young boys. Her evidence also disclosed a willingness on the part of the appellant to act upon that interest. Thus, the evidence was relevant to both the motive the appellant had to befriend these boys as well as to specifically rebutting the appellant’s defence of altruism.
In addition, there were other more general aspects of Ms Western’s evidence which tended to confirm that IH visited Ms Western at her flat in Brighton with another boy. This was an important aspect of IH’s evidence. Although Ms Western did not specifically identify any boy, her evidence was capable of supporting, in a general way, IH’s evidence that the appellant took him to her flat. The appellant himself agreed that IH could have been one of the boys he took to meet his famous sister, but denied touching them in the way he alleged.
The evidence of Ms Western was undeniably prejudicial to the appellant; however for the reasons I have articulated, I consider that it was of such strong probative value that it substantially outweighed its prejudicial effect. In my view Ms Western’s evidence therefore did meet the requirements of s 34P(2) of the Evidence Act.
I would dismiss this ground of appeal.
Ground 2: Unreasonable verdicts – counts 2 and 3 concerning the complainant IH
This ground is a complaint that the verdicts of guilty in relation to the complainant IH (counts 2 and 3) are unreasonable and cannot be supported having regard to the evidence. The test in respect of this ground is that set out in M v The Queen,[5] namely, whether on the whole of the evidence it was open to the trier of fact to be satisfied beyond reasonable doubt of the appellant’s guilt.
[5] (1994) 181 CLR 487 at 492 - 493.
The argument in support of this ground raises the issue of the unreliability of IH’s evidence in what were said to be several material respects. The appellant submitted that the evidence concerning IH’s mental health problems, alongside the failure of the trial Judge to make any specific finding about IH’s paranoid delusions and the fact that there remained a possibility that IH was psychotic or delusional at the time of giving his evidence, must inevitably lead to the conclusion that the verdicts in relation to IH are unsafe. The second aspect of the argument in support of this ground relates to the inconsistencies in IH’s evidence, particularly as to the nature and frequency of the appellant’s offending and the timing of his meeting with the appellant, coupled with the trial Judge’s failure to make any specific finding about IH’s evidence that he first met the appellant when he was selling newspapers when Rundle Mall was open.
These criticisms and complaints need to be assessed against the background in which the evidence was given and in the light of the issues at trial. The appellant’s case at trial was that there was never any sexual contact between himself and IH. The appellant claimed that he did not meet IH until about mid-1976 when IH was 14 or 15. The appellant maintained that he was a “giving person” and he described his role in IH’s life as purely that of a friend. The appellant suggested that whilst IH may have been abused by a male adult in the circumstances alleged by IH in the years around 1973 to 1974, IH was mistaken about the appellant’s identity as the perpetrator.
As to the first complaint regarding inconsistencies in IH’s evidence as to the timing of events, IH’s evidence was that he started selling newspapers after he met and befriended Paul Bunn in grade six. He said that he first met the appellant near the Austral Hotel in about 1973 when he was still under the age of 12. A few weeks later the appellant approached him on foot in Rundle Mall, they went to The Blue Pumpernickel and later the same day went for a drive down to the parklands where the events the subject of count 2 occurred. IH’s evidence was that after that time there was a gap of about six months before his relationship with the appellant resumed.
IH’s evidence was that his sexual relationship with the appellant continued intermittently for a number of years. The only uncertainty in IH’s evidence about when he first met the appellant was whether he was 11 or 12 years old at the relevant time. He conceded that he could have been a year out. In fact, the trial Judge found that he was inaccurate as to the timing, and that the timing of the events the subject of counts 2 and 3 may have been out by up to a year.
One specific aspect of the complaint made under this ground of appeal relates to the evidence of IH that at the time when he met the appellant on the second occasion Rundle Street had become Rundle Mall.
It is necessary to set out the evidence of IH on that topic:
A.The second time I saw him I was selling papers and magazines at a stand called Birks on a Saturday, it was an all-day stand.
Q.Where was that.
A.That was on the corner of James Place and Rundle Street, Rundle Mall, it had just become Rundle Mall.
Q.Was it Rundle Mall at the time.
A.I believe it was.
…
Q.Tell us the circumstances in which you saw the accused again while you were working the Birks stand.
A.He approached me from the east, at that point I had my stand out in the middle or towards the middle of the mall or footpath area, and he approached me from the east and the shops had just closed within the 15 last minutes or so, perhaps half an hour and he approached me from the east.
…
HIS HONOUR
Q.Could you give me the location again. Where were you exactly.
A.The old Birks Chemist on the corner of James Place and Rundle Street or Rundle Mall. I'm not sure if it's still there anymore.
Q.No, I don't think it is. James Place and Rundle Mall.
Then later, the witness corrected himself as to the exact location:
Q.You have told us that the Birks Chemist stand that you operated in the early 1970s was on the corner of James Place and Rundle Mall. Do you stand by that.
A.No, I don't. I have been back there this morning and had a brief look. I realised that after I arrived home that I made a mistake; that Birks Chemist is actually on the corner of Gawler Place and Rundle Mall.
Q.And which of the corners.
A.On the south-western corner.
…
Q.Is James Place a thoroughfare that is available to motor vehicles or is it only foot traffic.
A.Nowadays I believe it's just foot traffic but back when I used to sell papers there was vehicle traffic, light, small vehicles.

In cross-examination the witness was questioned about the location:
Q.You have told us that you saw Mr Western on the occasion that led to sexual abuse outside the Birks Chemist.
A.That's correct.
Q.You were working in a newsstand there.
A.That's right.
Q.It was on the corner of Rundle Mall and Gawler Place.
A.That's right.
Q.By that time it was Rundle Mall. You could walk up and down the mall and on to Gawler Place.
A.That's right.
Q.You didn't know Grant Western in 1973 when you were 11 years of age, did you.
A.Not until that first encounter when he brought up the Austral Hotel.
Q.Mr Western was living in Sydney in 1973.
A.I can only tell you, restate, what occurred on those particular occasions.
Q.In 1974, when you were 12 years of age, you hadn't met Mr Western, had you.
A.I believe so.
Q.You saw him on the occasion that he came to Rundle Mall driving an HT Holden.
A.In Rundle Mall?
Q.Sorry, you saw him in Rundle Mall. That day, the first time you say there was any sexual contact, he had an HT Holden; is that right.
A.Yes.
Q.Glenelg Taxis.
A.I believe so.
…
Q.I suggest he started driving for Glenelg Taxis in June 1976 which would make you 14 years of age; okay. What I'm suggesting to you is that you, in fact, didn't meet Mr Western until you were 14 years of age in 1976. Do you agree with me or disagree.
A.I disagree.
Q.I think it's at least possible that you might not be accurate in relation to the timing, the year when you met Mr Western.
A.That's quite possible. I believe that I may be incorrect on some of the dates, but I don't believe that I was 14 when I met Grant Western. In fact I can recall being in primary school in grade 7, a particular discussion that took place between Grant Western and I.
Q.What I'm suggesting to you, firstly, is that you don't have an accurate recollection as to when you met Mr Western; you agree with that much, you are not accurate about.
A.I may not be accurate with some of the dates, but I'm quite certain that I met Mr Western prior to 1976.
And then again in cross-examination:
Q.You maintain that it was Mr Western that, in effect, approached you when you were at the newsstand in Rundle Mall.
A.That's correct, and at the Austral Hotel initially.
Q.Firstly, the Austral and then you moved - I think you set up in Rundle Mall, there out the front of Birks Chemist.
A.That's correct.
Q.You told us that it changed from Rundle Street to Rundle Mall
A.I believe so, around that point.
Q.At that point in time, when it changed from Rundle Street to Rundle Mall; that's right.
A.I believe so.
Q.I think you told us that, in fact, when you were approached that day Mr Western was walking up the mall, from the Pulteney Street end.
A.That's correct.
Q.In fairness to you, what I suggest is that it must have been at least after September 1976 that you met Mr Western.
A.Absolutely not.
Q.You agree that you can be out by a number of years when you recall certain events happening.
A.It's was quite possible, yeah.
Q.You could state that something happened on a particular year, but in fact it was a number of years later.
A.It's possible.
Q.Equally, it's possible that you are out by a number of years as to when you were with Mr Western.
A.I don't believe so.
Q.You aren't always accurate when you estimate how old you were at certain times when things happened with Mr Western.
A.Not always accurate with the exact date, no that's correct.
Q.You agree that you have been out, according to you, at least, by a number of years.
A.When you say 'a number of years', how many years.
Q.Two or three years.
A.I don't believe that's the case at all.
Q.It's not possible.
A.It's possible, but I don't believe that is the case. As I stated earlier, I can recall specific conversations with Mr Western whilst I was still in primary school.
It can be seen from the foregoing that IH was not adamant at any stage as to the timing of when Rundle Street became Rundle Mall. He was plainly mistaken about the location of Birks Chemist initially but conceded as much later while still giving evidence in chief.
He was also prepared to concede that he might have been as old as 12 when he met the appellant which would mean that he met him at some stage in 1974 or perhaps a little later.
IH did, however, remain adamant that he had met the appellant before 1976 and referred to a conversation that he had with the appellant when he was in grade 7 at Challa Gardens Primary School. The witness had a clear memory about this conversation.
It is significant when considering this complaint that the evidence from Paul Bunn was that he and IH sold newspapers around the city when Rundle Street had not yet become a mall and furthermore in 1974 both he and IH met up with a taxi driver:
Q.On that note, you did mention Rundle Street. When you were working, was it Rundle Street all the way or did it turn into Rundle Mall.
A.No, no, it was Rundle Street back in those days, yeah, all Rundle Street.
Q.So it was the street all the way to King William.
A.Yes, yes. There was no mall.
Q.There was no malls balls either.
A.No.
Q.And was that the case for all the period that you sold newspapers.
A.No. I think that they were actually starting to do it. I think they were starting to pave it when we were working. I remember it getting built, so I'm not 100% sure if that's where we sold the papers, but I think it was getting built when we were in that area, yes.
This evidence was not challenged. Even though he did not specifically mention IH’s evidence in chief concerning the timing of his second meeting with the appellant, it is obvious from the reference in the judgment to the dates agreed when Rundle Mall was opened that the trial Judge was alive to that issue. It was also clear from the cross-examination of IH that the appellant disputed IH’s evidence as to when he met the appellant.
For these reasons I cannot accept that the trial Judge was not alive to the inconsistencies in the evidence of IH. In any event, the fact that IH may have been in error in respect of the timing when Rundle Street became Rundle Mall is unsurprising given the lapse of time between 1974 and the date when he gave evidence. In these circumstances his Honour was entitled to view such inconsistencies as of no real moment.
As to the other uncertainties in IH’s evidence which related to whether he was 11 or 12 years old, or whether he met the appellant in 1973 or 1974, the trial Judge was also plainly alive to those matters. Despite those uncertainties, IH was able to identify the incidents the subject of each count relating to him, in specific detail. For example, his recollection of the events the subject of count 2 included a detailed account of the visit to The Blue Pumpernickel, what occurred at the café, his account of what happened later that day before they met up and travelled in the appellant’s car to the parklands, as well as what transpired at the parklands.
IH was criticised during cross-examination for the fact that he did not tell the police in 2006 about any episode which involved anal sexual intercourse with the appellant, but in 2012 he told the police about an episode of anal intercourse which he said happened when he was around 15 or perhaps older. IH was also criticised because in the 2006 statement he said that he performed oral sex only once; however when giving evidence he said it happened a couple of times a week over a couple of years.
These are some of those inconsistencies that must be assessed in light of the background of the whole sexual relationship between IH and the appellant. In circumstances in which the association between the appellant and IH continued intermittently for a number of years and frequently involved encounters of a sexual nature, it is not surprising that there were aspects of IH’s evidence in which he was inaccurate either about the timing or the frequency of their sexual encounters.
In any event, as the reasons of the trial Judge show, his Honour was alive to all of those inconsistencies and weighed them up when considering the credibility and reliability of IH.
The trial Judge was also entitled when assessing the reliability and accuracy of IH’s evidence to take into account that some of the salient features of IH’s evidence were supported by other evidence. That evidence included Paul Bunn’s evidence that he met IH when he was about 12 or 13 and they were selling newspapers at a time when they were befriended by a taxi driver. In the end, the accuracy of much of the evidence of IH about the appellant’s half-sister Ms Western, his brother K, K’s boyfriend A and the places where they lived was effectively not disputed by the appellant.
I turn now to consider the second aspect of the complaint made under this ground of appeal, which is that the trial Judge failed to make any specific finding about IH’s mental state at the time when he gave evidence and that it therefore remains possible that IH was psychotic or delusional at the time when he gave his evidence.
In my view, there was no obligation on the part of the trial Judge to make a specific finding in relation to whether IH suffered from paranoid delusions. The trial Judge was required to be satisfied beyond reasonable doubt that any psychotic disorder from which IH suffered did not affect the reliability of his evidence concerning his interactions with the appellant. The effect of Dr Raeside’s evidence concerning IH was that there was nothing to link his mental health issues with his evidence about his dealings with the appellant and Dr Raeside observed no evidence that IH held delusional beliefs in relation to the appellant. It is true that in cross-examination Dr Raeside conceded that it was a possibility that IH was psychotic in the past and at the time he gave evidence; however in Dr Raeside’s opinion it was not probable nor even a high possibility that a psychotic disorder affected his evidence about other things.
The trial Judge carefully analysed Dr Raeside’s evidence and its relevance to the evidence of IH before concluding:[6]
I refer here to my summary of the evidence of the psychiatrist Dr Craig Raeside, who was called by the Prosecution to deal with this matter (see 5.2 above). In short, Dr Raeside found no psychotic disorder which would impair the integrity of IH’s evidence concerning his interaction with the Accused. In cross examination he accepted it was a possibility but not a reasonable possibility. Further, I would have expected Dr Raeside to shrink from proffering any such categorical position if he was at all concerned about the unavailability of full and contemporaneous records of IH’s psychiatric history. I add also that while I accept that questions such as this are properly a matter for expert psychiatric opinion, I saw nothing untoward in either IH’s demeanour in the witness box or in the content of what he said. He appeared collected and composed and even matter of fact. Moreover, his evidence fits with other evidence in the Prosecution case as to the IH Counts, including that which I have identified as cross-admissible.
[6] R v Western [2014] SADC 97 at [479].
In the end, there was nothing in the evidence which demonstrated any link between IH’s mental health issues, either at the time he gave his evidence or earlier, with any aspect of the evidence which he gave concerning his interaction with the appellant many, many years before. The trial Judge was entitled to act on Dr Raeside’s view that, even assuming IH had been delusional in the past, there was no evidence of IH holding any current delusional belief in relation to the appellant.
Given the other evidence at the trial which was capable of supporting the evidence of IH in a general way, I consider that there has been no error demonstrated in the approach of the trial Judge in his assessment of IH’s credibility. Notwithstanding the inconsistencies in IH’s evidence of which the trial Judge was plainly aware, and the evidence concerning IH’s mental state, it was open to his Honour to accept the salient features of IH’s evidence concerning the commission of counts 2 and 3 as reliable and accurate, and be satisfied beyond reasonable doubt of the appellant’s guilt with respect of the charges relating to IH. I would dismiss this ground of appeal.
Ground 3: The evidence of sexual conduct between the appellant and the complainants MC and IH after they turned 18 was wrongly admitted
I turn now to consider the final ground of appeal, which is a complaint that the trial Judge erred in admitting evidence of sexual conduct between the appellant and the complainants MC and IH after they had turned 18 as evidence of sexual attraction relevant to proof of the charged counts.
His Honour referred to that evidence of MC:[7]
The above evidence of the Accused that there was that consensual sexual interaction between him and MC consisting of the touching (934), is not uncharged discreditable conduct, if one accepts the age estimate offered by the Accused. However, if accepted, and I note that MC denies it, it is capable of demonstrating that at a time not too far removed from the alleged offending, the Accused was sexually attracted to MC (see R v Bonython-Wright (supra) per Kourakis CJ at [40].
[7] R v Western [2014] SADC 97 at [386].
His Honour referred to the evidence of IH in this respect:[8]
The evidence of IH alleging that he and the Accused had sexual intercourse when he, IH, was an adult, while not discreditable conduct, is nonetheless evidence of sexual attraction and despite the passage of time between then and the charged offending, is capable of supporting IH’s allegations of earlier offending when IH was a child (see R v Bonython-Wright (supra) per Kourakis CJ at [41]-[42]).
[8] R v Western [2014] SADC 97 at [333].
In those passages his Honour said that notwithstanding that the complainants were by then of age the evidence was nevertheless capable of evidencing a sexual attraction despite the passage of time.
The appellant objected to this evidence, asserting that it was irrelevant. He submitted that evidence of an adult sexual relationship after the complainants had turned 18 could never prove a sexual attraction to that person when they were a child.
Regarding MC, the relevant evidence concerns an episode of consensual sexual touching between MC and the appellant when MC was 18 or 19 years old.
The trial Judge ultimately accepted MC’s evidence that it did not take place and rejected the appellant on that basis. Therefore, insofar as the trial Judge referred to the evidence of the appellant, as set out at [83] above, the observations are purely hypothetical.
With regard to the evidence of IH, the evidence of consensual sexual intercourse which IH had with the appellant when he was 17, 18 or 19 is not so removed from the period of time referred to by IH when he was having a sexual relationship with the appellant as to be without some probative force.
The evidence was that the appellant commenced and conducted a lengthy sexual relationship with IH as an underage boy. That relationship commenced when IH was as young as 11 and persisted until he was 14 years old. The sexual contact recommenced when IH was 17 or 18 years old. The space of three years during which the appellant and IH did not engage in sexual activity is not of such significance as to create a distinction between the appellant’s attraction to IH as a 14 year old and as a 17 year old. Rather, the sexual contact between the appellant and IH is properly characterised as an ongoing relationship, broken by a period of non-contact. As such, given the continuity of the relationship, the sexual conduct between the appellant and IH was capable of showing sexual attraction to IH on the part of the appellant.
It is significant that this was not evidence which needed to meet the high test in s 34P of the Evidence Act: the evidence of consensual sexual interaction with IH as an adult was not evidence of any discreditable conduct on the part of the appellant. In addition, this was a trial by Judge alone. There is no suggestion that the trial Judge overstated the relevance of this evidence. The events described by IH are not so removed in time as to sever any possible link between the attraction which the appellant had for IH when he was 14 and the attraction which is demonstrated in the sexual intercourse which took place when he was 17 or 18. I would dismiss this ground of appeal.
Conclusion
I do not consider that the learned trial Judge made any error in the admission of the evidence the subjects of grounds 1 or 3, or in reaching the verdicts in relation to the complainant IH.
After applying the precepts enunciated by the High Court in M v The Queen[9] and after conducting my own independent review of the evidence, I have no misgivings about the verdicts reached.
[9] (1994) 181 CLR 487.
I would dismiss the appeal.
PEEK J. I would dismiss the appeal. I agree with the reasons of Kelly J.
BLUE J. I agree.

[2015] SASCFC 148

8 October 2015

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