R v Y, DB
[2006] SASC 289
•20 September 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v Y, DB
[2006] SASC 289
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Vanstone and The Honourable Justice Layton)
20 September 2006
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Appellant convicted of 15 counts of unlawful sexual intercourse - charges relate to three complainants B, K and M - directed verdict of acquittal with respect to one charge of indecent assault - jury unable to reach verdict with respect to two counts of unlawful sexual intercourse relating to B.
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
Differing verdicts with respect to B explicable on evidence relating to consumption of alcohol by B - K's credibility not affected by directed verdict of acquittal with respect to charge of indecent assault nor inconsistencies in evidence with respect to particular events - judge correctly directed jury with respect to matters arising on the evidence of M.
M v The Queen (1999) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; Gipp v The Queen (1998) 194 CLR 106, applied.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP
Cross-admissibility - similar pattern of behaviour raised the improbability of separate complainants making similar allegations unless they were true - whether judge erred by failing to direct jury that the evidence on one count could only be used in support of another count if there was no rational view of the evidence consistent with innocence - not a case relying substantially on circumstantial evidence - directions adequate in circumstances of case.
R v Liddy (2002) 81 SASR 22, applied.
R v Hoch (1998) 165 CLR 292 ; R v Pfennig (19950 182 CLR 461, considered.
CRIMINAL LAW - EVIDENCE
Application by prosecution for access to counselling notes of defence witness - procedure pursuant to s 67F Evidence Act 1929 - relevance to credibility.
Appeal dismissed.
Evidence Act 1929 ss 67D, E, and F, referred to.
Question of Law Reserved (No 1 of 2000) 77 SASR 344, applied.
R v Y, DB
[2006] SASC 289Court of Criminal Appeal: Nyland, Vanstone and Layton JJ:
THE COURT: This is an appeal against conviction. The appellant was charged on an information which contained 18 counts. Seventeen counts alleged the crime of unlawful sexual intercourse. There was one count of indecent assault. The charges related to three teenage boys whom we shall refer to as B, K and M. K and M are brothers. At the time that the offences are alleged to have occurred, K and M did not know B. Counts 1 to 4 inclusive relate to B, who at the relevant time was aged about 14 years. The four offences were alleged to have occurred in January 2003 when the appellant and B attended a social function called Planet Shakers. Counts 1 and 2 were alleged to have occurred before they went to the function and Counts 3 and 4 when they returned home after it. The appellant was convicted of Counts 1 and 2 but the jury was unable to reach a verdict as to Counts 3 and 4.
Counts 5 to 14 inclusive relate to offences alleged to have occurred between the years 2002 and 2004 with respect to K who, at the relevant times, was aged between about 12 and 14 years. Count 10 was the charge of indecent assault which resulted in a directed verdict of acquittal. The appellant was found guilty of Count 7 by a majority. A unanimous verdict of guilty was returned with respect to the remaining counts. Counts 15 to 18 inclusive were alleged to have occurred in 2003 and relate to M who was then aged about 15. The appellant was convicted of all four of those offences.
The evidence of B:
B was born on 18 July 1988. He met the appellant when he was aged about 14 and the appellant was 18 or 19. He liked the appellant and socialised with him at a youth group. He had been to the appellant’s house on a number of occasions when they had engaged in such activities as playing video games and listening to music.
B said the first time anything happened of a sexual nature was in the appellant’s bedroom in the course of a game called “Truth, Dare and Double Dare”. The appellant dared B to show him his penis and later to slap his penis on the wall. The appellant also showed B a pornographic DVD. After that there was some measuring of B’s penis by the appellant with his fingers. This particular behaviour is not the subject of any charge against the appellant but puts what later occurred in context.
About a week later, during January 2003, the appellant and B were due to go to a Christian concert called Planet Shakers. When in the appellant’s bedroom, prior to leaving for the function, B saw three small 60 ml bottles of alcohol sitting on a shelf and asked the appellant if he could have them. The appellant agreed, provided that B went out into a tent in the back yard with him. B went to the tent and there complied with a request to masturbate the appellant in return for the alcohol. B later agreed to the appellant masturbating him. The appellant subsequently told B that he wanted to give him a “head job”. B initially objected but eventually permitted the appellant to place his mouth on his penis (Count 1). B subsequently agreed to put his penis into the appellant’s mouth (Count 2). They then returned to the appellant’s bedroom. B said he grabbed the three bottles of alcohol and the two of them then went to Planet Shakers. B said that while they were at the function he drank a whole bottle of vodka “in one gulp”.
When they left Planet Shakers they returned to the appellant’s house. B said they went into the bedroom and the appellant again played the pornographic DVD. B thought that he then drank two of the small bottles of alcohol that he had earlier obtained from the appellant. B said that the appellant then sucked his penis (Count 3). The appellant wanted B to masturbate him and B complied. There was then an argument about B performing an act of fellatio on the appellant. B said he was lying on the bed when the appellant came up behind him and pulled his pants down and he told B to hold his legs up in the air. The appellant then inserted his penis in B’s anus (Count 4).
The evidence of K
K was born in New Zealand on 30 January 1990. He met the appellant through a Maori culture group. He said the first time something happened between him and the appellant was in a van in a car park at the local Rugby club when he was aged about 13. This also involved a game of Truth or Dare, in the course of which K removed his pants. K was due to sleep at the appellant’s house that night and K was going to sleep in the appellant’s bed. He went into the appellant’s bedroom and he looked at some pornographic books or magazines. Once again the game of Truth or Dare was played which involved K and the appellant both removing their pants and engaging in some masturbation. The appellant then asked K to suck his penis (Count 5) and the appellant then did the same to K (Count 6). K said that thereafter between 2002 and 2004 something like that happened on about 50 occasions but K could not remember every single incident. K did, however, describe an occasion at the home of the appellant’s sister, Leanne, when K stayed the night. He said the appellant was out working at his security job. When the appellant returned home he woke K up and told him to take off his pants and to give him a head job and to masturbate him. K said he then sucked the appellant’s penis (Count 7). K also described another occasion when he went riding with the appellant in his car. He said they parked in the car park of a softball club and the appellant told K to suck his penis (Count 8). The appellant then sucked K’s penis (Count 9). Thereafter they drove about for some time and then parked at a look-out where K masturbated himself. This is the incident which constituted the charge of indecent assault alleged in Count 10. K’s evidence was, however, that the appellant did not touch him on this occasion, as a result of which the judge directed the jury to return a verdict of not guilty.
K gave evidence about another occasion when he went to a jetty at Port Noarlunga with the appellant in his car. K said the appellant told him he would give him $5 if he sucked his penis. K then sucked the appellant’s penis and received $5 (Count 11).
The last occasion described by K was in the appellant’s bedroom before the two of them went to a show where they were going to do a performance of the Haka. K complied with a request from the appellant to suck his penis (Count 12). K said he then sucked the appellant’s penis and masturbated. The appellant then asked K to try anal sex and K said he eventually sat on the appellant’s penis (Count 13). K told the appellant that it hurt and the appellant stopped. The appellant then had K anally penetrate him (Count 14).
The evidence of M
M was born on 31 January 1988. He met the appellant through his older brother when he was aged somewhere between 10 and 12. He was about 15 the first time something happened with the appellant. He said he was staying the night at the house of the appellant’s sister, Leanne. M went out with the appellant who was doing security work. M said that the appellant had a Ford Falcon work car and the appellant wore a uniform when he went out on security rounds. M said that he remained in the car as he was not allowed to do anything but when asked in cross-examination whether he could see what the appellant was doing, M responded that the appellant was “turning off the alarms”.
M said they then returned to Leanne’s house and played a game of Truth or Dare in Leanne’s room. M said they each dared the other to put on one of Leanne’s G-strings and run across the road, which they did. When they returned to Leanne’s room, the appellant asked M to show his penis to him, after which the appellant wanted to touch it. M said the appellant touched him on the penis for a short time and then rubbed it and then told him to touch his. He said that the appellant told him that if he did what he was asked, he would let him drive his car. M then sucked the appellant’s penis for about five minutes and the appellant then sucked M’s penis (Counts 15 and 16). The appellant then inserted his penis into M’s anus (Count 17).
M said that the next time something of a sexual nature happened was at his house at West Beach. M was leaving to go back to New Zealand. He asked the appellant to collect him in order to drive him around to see some of his friends before he left. M agreed to suck the appellant’s penis in return (Count 18). M said he agreed to do so because he was desperate to go and see his mates.
M v The Queen[1]:
[1] (1994) 181 CLR 487
A number of grounds of appeal seek to set aside the verdicts on the grounds that they are unreasonable or unsatisfactory or cannot be supported having regard to the evidence.
The proper approach to such a ground of appeal is described in the following way in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ at 492-493:
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as ‘unjust or unsafe’ (see Davies and Cody v The King (1937) 57 CLR 170, at p180), or ‘dangerous or unsafe’ (See Ratten v The Queen (1974) 131 CLR 510, at p 515). In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict (See Raspor v The Queen (1958) 99 CLR 346, at pp 350-351; Plomp v The Queen (1963) 110 CLR 234, at pp 246, 250). Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence (Morris v The Queen (1987) 163 CLR 454) and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’ (See Hayes v The Queen (1973) 47 ALJR 603, at p 604.
Their Honours went on to say at 493:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. [footnotes omitted]
and later at 494-495:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen [No 2] (1984) 153 CLR 521, at pp 618-619; Chidiac v The Queen (1991) 171 CLR 432, at pp 443-444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen at pp 443, 451, 458, 461-462). Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.
In Jones v The Queen[2] Gaudron, McHugh and Gummow JJ accepted that the test formulated by the majority in M v The Queen must now be accepted as the appropriate test for determining whether a verdict is unsafe or satisfactory. See also Gipp v The Queen[3] per McHugh and Hayne JJ at 123 and Callinan J at 162-164.
[2] (1997) 191 CLR 439
[3] (1998) 194 CLR 106
Ground 1 – unreasonable or unsafe verdict relating to B:
Ground 1 relates to the convictions with respect to B. The appellant seeks an order that the verdicts of the jury on Counts 1 and 2 be set aside on the ground that they are unreasonable or unsatisfactory, or cannot be supported having regard to the evidence, especially the evidence given by B with respect to his consumption of alcohol.
B’s consumption of alcohol:
B was cross-examined at length about the amount of alcohol he consumed prior to the commission of the sexual acts alleged in Counts 3 and 4. B said that he had consumed the entire contents of a 750 ml bottle of vodka as well as two 60 ml bottles of spirits before they occurred. He said, however, that the vodka did not have much effect on him at the function and that he felt “a little bit drunk” when he returned to the appellant’s house.
The defence called Professor Thomas, a pathologist, to give evidence relating to the consumption of alcohol. Professor Thomas had regard to the age, weight and height of B and said that if a person consumed the amount of alcohol which B had described in the time specified, he or she would have such a high reading that there was a distinct possibility the person concerned would either be dead or completely unconscious.
In reliance upon the evidence of Professor Thomas, the appellant argued that the evidence of B as to his consumption of alcohol was so unreliable that it significantly undermined his credibility, and that should have created a doubt in the minds of the jury, not only with respect to Counts 3 and 4, but also Counts 1 and 2. It was also argued that B’s evidence was further undermined by the evidence of Sharma Turvey and the appellant’s sister Emma. They both said that after the Planet Shakers function the appellant and B had driven with them back to the appellant’s house in Mrs Turvey’s vehicle. Each of them had a specific recollection that B was then offered a lift to his house but B declined and walked off down an alley way in what appeared to be the general direction of his house which was nearby. This evidence is also the subject of Ground 6 of the Notice of Appeal which we will deal with hereafter.
B was only 14 years old when the offences with respect to him are alleged to have occurred. He was not quite 18 when giving evidence at the trial. He could not be regarded as being an experienced drinker. The delay between the commission of the alleged offences and the trial may, to some extent, explain B being mistaken in his recollection of what he had to drink that night. The evidence of Professor Thomas makes it clear, however, that B could not have consumed the amount of alcohol he described in evidence. Furthermore, other evidence suggested that B was unaffected by alcohol at the function. As the judge said to the jury:
You may think that evidence established that, had [B] skolled a 750 ml bottle of vodka at the Planet Shakers conference, he would have been unlikely to have walked around the conference, talked to his friends, appeared apparently unaffected by alcohol or have remembered anything afterwards had he survived. You might think, therefore, that it is unlikely that [B] drank the vodka that he said he did or anything like that. You may consider whether or not that causes you to question his credibility and reliability in respect of any or all of his other evidence.
The jury had the advantage of observing B when he gave evidence and the judge told the jury to scrutinise that evidence most carefully. The judge also told the jury to consider each of the counts separately. When discussing the alcohol evidence the judge asked the jury to consider whether that caused them to question B’s credibility in respect of any or all of his other evidence. The circumstances relating to those offences which occurred early in the evening and which resulted in convictions are substantially different from what happened later. In our opinion, there is no inconsistency arising out of the inability of the jury to return a verdict with respect to Counts 3 and 4 such as to undermine the credibility of B with respect to Counts 1 and 2.
In our opinion, the differing results are explicable as reflecting a finding by the jury that B was a reliable witness about those events which took place before he had anything to drink, but that his level of intoxication thereafter (possibly combined with the evidence of Emma and Sharma Turvey) created a doubt in the minds of some of the jurors as to his reliability with respect to later events which precluded a verdict being returned with respect to Counts 3 and 4.
Ground 6 – obligations of prosecutor:
Ground 6 also relates to B and is conveniently dealt with next. It is a complaint that the prosecutor failed to put to either Sharma Turvey or the appellant’s sister Emma that after they dropped B off, that B had returned to the appellant’s house sometime later when the alleged offending had then occurred.
Counsel for the appellant complained that the judge had omitted to direct the jury that the prosecutor had failed to challenge either Sharma Turvey or Emma about their assertion that B had walked away and had not accompanied Emma into the house when they arrived back home after the function. The prosecutor was, however, quite careful about the way in which she dealt with this matter. She did not seek to impeach the credit of either Emma or Sharma Turvey with respect to their evidence that they had dropped B off and that they saw him walk away down the alley way. She simply put to each of them that their observations were limited to what they saw when they arrived at the house, and that they could not exclude B having been at the house at some later time when the offences he described had taken place. There was undisputed evidence that B phoned his parents this particular night and asked them if he could stay and his parents gave evidence to the effect that B had not returned home that night. The prosecutor did not mention the evidence of either Emma or Turvey in her address to the jury. She simply invited the jury to accept that B had told the truth when he said that he did in fact stay the night. In our opinion, it was legitimately open for the prosecutor to resolve the apparent conflict on the evidence in the way that she did.
The judge reminded the jury of the evidence of Sharma Turvey and Emma about B walking off down the alley way and the concession by each that she could not say one way or the other whether B had stayed the night. The jury subsequently asked a question about the evidence of B concerning entry to the house after the Planet Shakers function and the evidence of B in examination-in-chief and cross-examination was then read to the jury.
In our opinion, the judge’s directions adequately dealt with the circumstances of the case.
Ground 2 – unreasonable and unsafe verdict relating to K:
Ground 2 of the Notice of Appeal relates to K. The appellant asks that the convictions be set aside on the ground that they are unreasonable, especially considering K’s changing story with respect to critical episodes, his version of anal intercourse and his propensity to hallucinate.
The appellant argued that the failure of K to come up to proof with respect to the allegation of indecent assault alleged in Count 10 should have been taken into account by the jury when assessing K’s reliability with respect to the other charges. The appellant also placed considerable weight upon the changing versions of the incident which was the subject of Count 7, as affecting K’s credibility.
Count 7 was an allegation that K was required to perform an act of fellatio on the appellant on an occasion when K stayed the night at the house of the appellant’s sister, Leanne. K said that when the appellant came home from work he woke him up. The evidence then was[4]:
[4] Tr 161-162
Q. What did he do to you.
A. Told me to take my pants off and give him a head job.
Q. For you to give him a head job.
A. Masturbate him, yes.
Q. And to masturbate him.
A. Yes.
Q. Did you do that.
A. Yes.
Q. Did you give him a head job.
A. Yes.
Q. By that, do you mean suck him on the penis.
A. Yes.
Q. Was that the only time that happened at his sister’s house.
A. Yes.
When K was cross-examined about this incident he said that when the appellant woke him up the appellant said to him “Suck my dick”. K said that he told him he was tired and the appellant then jumped on the bed and said “Hurry up, just do it”. The evidence then was[5]:
[5] Tr 200
Q.What happened.
A.I didn’t suck his dick.
Q.But this was something you didn’t want to do, was it.
A.I didn’t.
Q.Did you call out for any of the other people who where there; [M], your brother, or Isaac.
A.No.
Q.Did you call out for Leanne, [the appellant’s] sister.
A.No.
Q.You just went ahead and did it.
A.Did what?
Q.He wanted you to suck his dick, didn’t he.
A.Yes.
Q.Is that what you did.
A.No. I masturbated.
Q.You did not suck his penis.
A.No.
Q.You did or you didn’t.
A.I didn’t.
Q.When you did not suck his penis, what happened then.
A.Masturbation.
K went on to say that he masturbated the appellant for about one minute and that nothing else of a sexual nature happened.
Counsel for the appellant returned to this topic later in his cross-examination of K at which time the evidence was[6]:
[6] Tr 204
Q.So, your evidence was and your memory was that, in the bedroom at Leanne’s house, [the appellant] asked you for a head job, to suck his penis, and that’s what you did; that was your earlier evidence, wasn’t it.
A.Yes.
Q.And you also masturbated him.
A.Yes.
Q.The evidence you gave not 10 minutes ago was that, when you were in the bedroom, he asked you to suck his penis and you didn’t, you refused; ‘I did not suck his penis’. Was that your evidence some 10 minutes or so ago.
A.Yes.
Q.That’s not the same as your earlier evidence, is it.
A.No.
Q.Because your evidence some 10 minutes ago was that you didn’t suck his penis but you masturbated him.
A.Yes.
Q.Which one is correct.
A.The second one.
Q.The second one, the one you just gave 10 minutes ago.
A.Yes.
Q.Why was it earlier, when you were asked ‘Did you give him a head job’, that you said ‘Yes’, ‘By that, do you mean suck him on the penis’ and you said ‘Yes’; why did you say that.
A.I don’t know.
The following day, counsel for the appellant resumed cross-examining K about this incident by reference to the statement that K had made to Detective Ramm on 21 November 2004 (which was signed on 20 February 2005) in the following way[7]:
[7] Tr 215-216
Q.The question then was ‘And what did he say to you?’ And you answered ‘He told me to suck his dick and I was like “Oh, I’m too tired”.’
A.Yes.
Q.The next question 275 was ‘So, did you do that, did you suck?’ And your answer was ‘Yeah, for like two minutes’. Do you see your answer there.
A.Yes.
Q.As I understood your evidence yesterday, before lunch you suggested that in this incident at Leanne’s house [the appellant] asked you to give him a head job and to masturbate him and you said you did both – that is, you sucked his penis and masturbated his penis. That’s what you said yesterday when the prosecutor, Ms Boord, was asking you questions, didn’t you.
A.Yes.
Q.Then in the afternoon when you were cross-examined by me, that’s yesterday, you said that you did not suck his penis; that’s correct, isn’t it, that’s what you said.
A.Yes.
Q.Yesterday when you were cross-examined you said what you did was you masturbated [the appellant’s] penis, that’s what you said in cross-examination, isn’t it.
A.Yes.
Q.I think when I asked you which of those two versions was the correct one, that you said the second one, that’s the one when you were cross-examined by me. That’s what you said, isn’t it.
A.Yes.
Q.So, yesterday your evidence ended with you saying the correct version of what happened in the house of Leanne Y was that you did not suck [the appellant’s] penis, but you did masturbate his penis; that’s correct, isn’t it.
A.Yes.
Q.Is that still what you say happened at Leanne’s house.
A.No.
Q.What do you say now happened at Leanne’s house.
A.That (INDICATES).
Q.You are pointing to the page; what do you meant ‘That’.
A.I did suck his dick.
HIS HONOUR
QYou pointed to the transcript of what you told police; is that what you were doing.
A.Yes.
XXN
Q.So you say now, do you, that you did suck his penis.
A.Yes.
Q.So, that’s now the correct version, is it, that you did suck his penis.
A.Yes.
Q.Did you masturbate him as well.
A.Yes.
Q.You are sure about that.
A.Yes.
Defence counsel then put to K a suggested inconsistency between his evidence in court as opposed to his statement to police in that he had not told the police that he had masturbated the appellant on this occasion at Leanne’s house. K said that he had forgotten. The evidence continued[8]:
[8] Tr 218-220
Q.In the evidence you gave this morning, you have never suggested when you were at Leanne’s house that [the appellant] was masturbating himself; do you agree.
A.Yes.
Q.Why didn’t you tell us in evidence that that’s what [the appellant] did, masturbated himself.
A.Because I just remembered.
Q.When did you just remember.
A.Last night.
Q.Last night.
A.Yes.
Q.So, is what’s in the statement that you gave, or the interview you gave to Detective Ramm about [the appellant] laying there masturbating, is that correct.
A.Hey?
Q.You see your statement, if you look at question 271, you say ‘[the appellant] was laying masturbating and told me to suck his dick’ and then further down at 276 you end up saying ‘So, he just kept on masturbating, like he came’.
A.Yes.
Q.So that’s what happened, is it.
A.No, that’s what happened, but I masturbated him as well.
Q.Is what you are telling us now, that he was masturbating himself, you sucked his penis and you masturbated him as well; is that right. Never mind the document, is that what you are saying.
A.That I masturbated him?
Q.I’ll ask you the question again, just ignore the document. Is your evidence now that [the appellant] at Leanne’s house was masturbating himself.
A.Yes.
Q.And you also sucked his penis and you also masturbated him.
A.Yes.
Q.What was the order; which happened first. Never mind the document, I’m asking you.
A.Masturbating, masturbating.
Q.What, him masturbating himself, or you masturbating him.
A.Him.
Q.Then what came next.
A.Masturbating him.
Q.Then what happened after that.
A.I sucked his dick.
Q.You are clear about that now, are you.
A.Yes.
It is obvious that there are inconsistencies in K’s evidence relating to this particular incident. In considering whether a verdict is unsafe, however, it is necessary to have regard to the whole of the evidence. K was giving evidence about multiple offences which were of a similar nature and which had occurred over a long period of time from about the age of 12 until he was 14 years. He was only about 16 when giving evidence at the trial. In those circumstances, his failure to come up to proof with respect to the matters alleged in Count 10, which was limited to an allegation of mutual touching, was hardly surprising and in our opinion, does not undermine his credibility with respect to other counts. It is also understandable that there was a degree of confusion with respect to the evidence which he gave with respect to the matters which were alleged in Count 7. K was obliged to give evidence over a number of days and was extensively cross-examined about the various incidents involving the appellant. The cross-examiner returned to the incident at Leanne’s house, which was the subject of Count 7, on a number of occasions. Finally, upon being shown the statement he originally made to the police, K affirmed what he initially said in evidence about these matters. The judge drew the jury’s attention to the inconsistency in K’s evidence on this aspect of the matter and said:
At some point in the night he was awoken by the accused. The accused told [K] to take his pants off and to give the accused a head-job and to masturbate the accused. [K] gave the accused a head-job by sucking the accused on his penis. That was the only time that that happened at the accused’s sister’s house. That act is the allegation said to constitute the seventh count on the information against the accused.
When cross-examined about this act [K] said that he did not suck the accused’s penis but that he masturbated the accused. However, later in cross-examination [K] said ‘I did suck his dick’ as well as masturbating the accused and the accused masturbating himself.
This direction was relatively brief but defence counsel, in the course of his address, had referred in some detail to the evidence given by K with respect to this count. The jury had the advantage of seeing and hearing K give evidence and were obviously satisfied at the conclusion of his evidence that he was a reliable witness as to essential matters, notwithstanding some confusion which emerged in the course of giving evidence about this particular matter. In our opinion, the jury was entitled to reach that view.
Another matter relied upon by the appellant as affecting K’s reliability related to an occasion upon which it was suggested that K had asked the appellant to collect him in order for him to go to a party at Leanne’s house. This was not an occasion on which it was alleged that any misconduct occurred but counsel argued that such a request was inconsistent with K having been subjected to the sort of abuse about which he had given evidence. When this particular matter was put to K, however, he was unable to remember anything about the occasion in question or having made any such request.
On the prosecution case the appellant had some degree of influence over each of the complainants which included obtaining sexual acts in return for rewards. Against that background, and taking into account K’s age, it is not surprising that K was prepared to submit to some form of sexual abuse in return for a favour, notwithstanding his reluctance to participate. In our opinion, this aspect of the evidence does not assist the appellant in any way. Nor do we think the complaints about K’s ability to hallucinate take the matter any further. K, in cross-examination, agreed that there was an occasion on which he had got drunk at a party and hallucinated. K’s mother subsequently gave evidence, however, that K was regarded within the Maori culture as having a special gift of being able to communicate with dead ancestors. It was never suggested to K in evidence that he was hallucinating on any of the occasions when he said sexual acts had occurred. Looked at in its proper context, we do not think that the evidence relating to hallucinations, although unusual, renders K’s evidence as to sexual abuse improbable.
Similarly, we do not think that K’s version of the act of anal intercourse which is the subject of Count 13 affected his reliability. K described being on his hands and knees on his mattress with the appellant behind him also on his knees when the appellant penetrated his anus. K was cross-examined at some length about the position that he was in when this incident occurred. In our view there is nothing inherently implausible in his account of what took place.
Grounds 3 – unreasonable and unsafe verdict relating to M:
Ground 3 seeks an order that the verdicts be set aside on the ground that they are unreasonable or unsatisfactory and cannot be supported having regard to the evidence, especially considering M’s evidence of the incident at Leanne’s house, his presence when the appellant allegedly deactivated alarms at various premises and his reason for permitting the final sexual offence.
The incident at Leanne’s house:
M’s evidence was that on the night he went with the appellant to Leanne’s house, the appellant gained entry with a key. Initially, M said that he did not know where the key came from but eventually said he thought the appellant obtained it from a pot plant. Leanne said, however, that she always kept her house locked when she was away. She said she did not leave a key anywhere nor did she have any arrangement with the appellant to stay overnight with friends.
The judge in his summing up did not refer to the apparent conflict in the evidence relating to the key. Defence counsel, however, in his address, reminded the jury of the evidence of Leanne on this topic and referred to inconsistencies in M’s evidence about the key which he suggested should give the jury cause to doubt M’s credibility with respect to his version of what happened on this particular occasion. The jury were clearly alert to the issue, however, as after they had retired to consider their verdicts they asked for a reading of the transcript of M’s evidence about the appellant and M gaining access to Leanne’s house on the night of Counts 15, 16 and 17. The evidence of M in examination-in-chief and cross-examination with respect to this matter was then read to the jury. The only evidence to dispute M’s evidence about they key came from Leanne. Whether Leanne was a truthful or reliable witness on this topic was a matter for the jury. There is nothing arising out of this aspect of the evidence which, in our view, would require this court to interfere with the verdict of the jury.
The alarm evidence:
The appellant further challenged the reliability of the evidence given by both K and M on the basis of evidence given by Mr McClelland.
Mr McClelland owned a security company which had employed the appellant as a “gofer” doing odd jobs for him. In that capacity the appellant was allowed on occasion to take the work car home overnight. The appellant did not hold a security licence, however, and was not employed nor authorised to activate or deactivate alarms. The appellant argued that Mr McClelland’s evidence completely undermined the evidence of both K and M as each had given evidence about the appellant dealing with alarms. It was not disputed that on occasions each of the complainants had been out with the appellant in the company car at times when the appellant had been wearing his security uniform. K said that he was with the appellant in the car when he had been out to “do the alarms” but there was no attempt by defence counsel to clarify what K meant by that. M’s evidence was equally equivocal. He described going out with the appellant in the work car on a security job with him and he said[9]:
A. Sat in the car. I wasn’t allowed to do anything.
Q. Did you see what [the appellant] was doing.
A. Yes. He was turning off the alarms.
[9] Tr 384
On appeal, counsel for the appellant sought to elevate this evidence to a positive assertion by each of the complainants that the appellant was actively involved with the alarms on the occasions they described in direct contrast with Mr McClelland’s evidence that the appellant had no authority to do alarm work. When M was cross-examined about these matters, he mentioned going out with other boys with the appellant in the company car and said[10]:
Q.When you went out with him on these jobs, did you remain in the car or did you go with him to these various premises.
A.We had to stay in the car because of the cameras around, and he wasn’t allowed to be seen with anyone.
Q.And what was [the appellant] doing, if you know, on these jobs.
A.He would carry his torch around and just look around, and usually there is alarms going off so he would go and turn the alarms off; deactivate them.
[10] Tr 408
In our view, it is not clear from this passage of evidence whether M was describing something that he had seen and/or heard or whether he was simply recounting what he had been told by the appellant. As we read the evidence, neither complainant ever stated that he in fact heard alarms going off. We consider that the evidence of each of the complainants was capable of bearing the meaning that the appellant had told him that the alarms were ringing or that he was attending to alarms in some way. Each had remained in the car when the appellant went into the relevant premises and was therefore not in a position to say exactly what the appellant was doing.
The reason for permitting the final sexual offence:
The appellant was also critical of the evidence of M that he allowed the appellant to engage in the sexual acts alleged in Counts 13 and 14 in return for the appellant driving him around to see his friends before he left Australia. Counsel argued that this explanation was so incredible that it should have caused the jury to have a doubt about the reliability of all of his evidence.
M was, however, only 15 at the time these offences were alleged to have taken place. He had previously allowed the appellant to engage in sexual behaviour with him in return for driving his car. M’s evidence relating to this matter was consistent with the history of his relationship with the appellant. In our opinion the jury were entitled to accept M’s explanation of what happened on this occasion.
Ground 4 – failure to put defence case:
Ground 4 is a complaint that the judge failed adequately to put important aspects of the defence case to the jury, in particular, M’s evidence that the appellant actively deactivated security alarms, the evidence of Mr McClelland that the appellant could not have deactivated the alarms, and Leanne’s evidence that she always kept the house key in her possession.
Most of these matters have been dealt with in our discussion with respect to Ground 3. The trial judge was not obliged to mention every argument advanced on behalf of the appellant. Each of the issues raised in this ground was the subject of detailed submissions to the jury by counsel for the appellant. The judge gave clear directions to the jury to take into account all the matters mentioned by counsel in the course of their addresses. The judge drew the jury’s attention to the critical matters which were in issue in the case. The judge reminded the jury of the major arguments put by defence counsel. That, in our opinion, was sufficient for the jury to understand the relevant issues which arose on the defence case.
Ground 5 – judge’s directions as to alarm evidence:
Ground 5 is a complaint that the judge erred in telling the jury that as M was not cross-examined as to the falsity of his evidence about the appellant turning off alarms, it should take this into account in weighing his evidence: (a) complained that this misrepresented the evidence to suggest M did not say he could hear alarms sounding; (b) ignored the challenges to M’s evidence that he had been at Leanne’s house on the night when alarms were checked by the appellant and failed to refer to the evidence of McClelland that the appellant could not de-activate or re-activate alarms; (c) and that it was for the jury to determine what, if any, inference could be drawn from the cross-examination of M.
The judge in his directions to the jury when discussing M’s evidence said:
[M] was cross-examined about going out with the accused in the company car. He said that other boys were also in the car on the security runs. There were some places they could not go to with the accused so they would be dropped off before the accused went to those places. When they, he and other boys, went to jobs with the accused they had to remain in the car because of the cameras and because the accused was not allowed to be seen with anyone. He said that the accused would carry his torch and just look around. He said ‘There is alarms going off so he would go and turn the alarms off, deactivate them’. He did not say that he could hear the alarms going off. It was not suggested to [M] that his evidence on this topic was false or incorrect.
The judge did not refer to Mr McClelland’s evidence as to the appellant’s lack of authority to activate or de-activate alarms, but in our opinion he correctly reminded the jury that it had not been suggested to M that his evidence about whether he heard alarms was false or incorrect. The judge did not suggest that counsel’s failure to cross-examine M on that topic gave rise to some inference unfavourable to the appellant, nor did he withdraw from the jury’s consideration the detailed arguments put by counsel for the appellant about this matter in the course of his address.
The thrust of the direction given by the learned trial judge was that when considering the cogency of the argument put by counsel on behalf of the appellant they were entitled to take into account the fact that it had not been directly put to M that he had actually heard alarms ringing.
Mr McClelland’s evidence that the appellant could not turn off alarms was consistent with the argument put by the prosecution that the appellant was simply asserting that he was working as a security officer and authorised to do these things as part of his wish to be alone with the complainants. If defence counsel had intended to impugn the evidence of either K or M about them having actually heard alarms ringing or the appellant’s active involvement in attending to alarms, it was incumbent upon him to have cleared up that ambiguity when cross-examining each of the complainants.
Ground 7 – Counselling notes:
Ground 7 also relates to M. It asserts that it was an error of law to permit evidence to be admitted pursuant to s 67F of the Evidence Act 1929 (SA) of protected communications by the appellant’s sister, Melissa.
Melissa at one stage was M’s girlfriend but they broke up about a month before M returned to New Zealand. In the course of cross-examination, M denied trying to touch Melissa in a sexual way at a party by putting his hand down her pants and pushing her against a wall when she resisted. When opening the case for the appellant defence counsel referred to evidence proposed to be called from the appellant’s mother and Melissa relating to this incident which he said had resulted in a report to the police. The appellant’s mother then commenced giving evidence for the defence. In the course of her evidence-in-chief, the judge asked defence counsel whether he proposed to lead evidence about the alleged assault on Melissa by M. Defence counsel said he intended to do so on the basis of M’s motive. The judge considered the motive had not been put to M and at that stage he could not see the topic being anything other than a collateral issue as to M’s credit. There was a further debate as to whether the question of motive had been put to M. The appellant’s mother was then stood down and M was recalled for further cross-examination. He once again denied any assault upon Melissa and denied fabricating allegations against the appellant to deflect the possibility of being in trouble from the police as a result of that.
Detective Ramm was involved in the investigation of the complaints relating to K and M. Constable Bratchell was the police officer who investigated the complaints relating to B. When each first gave evidence neither was aware of any complaint being made by Melissa to the police. As this matter subsequently assumed significance, leave was granted to recall both of them. By that time, Detective Ramm had made further enquiries and had ascertained that a police incident report had recorded a complaint of an indecent assault by M which was alleged to have taken place between 1 October 2003 and 1 November 2003. Detective Ramm said that the first time Melissa told the police about the alleged indecent assault was on 14 December 2004. That was, however, the day on which Detective Ramm had arrested the appellant. The appellant was arrested at 11.44 am and the complaint was made by Melissa with respect to M at about 4.30 that afternoon. Detective Ramm said that M was not described in the complaint as being Melissa’s boyfriend. The relationship was listed as a friend or family friend. Detective Ramm said that Melissa had not wanted to take any police action and the relevant form recorded:
At this stage of time I do not want any police action but I will take action at a later date. I will advise the police when I have had more counselling sessions.
When Constable Bratchell was recalled she gave evidence about other complaints made by Melissa to police. This included a complaint made on 19 April 2003 which related to B’s father Stephen stalking her. It appeared, however, that that complaint was made sometime after B had made a complaint to police about what the appellant had done to him. On 25 April 2003, the appellant’s mother complained further about Stephen stalking Melissa.
On 10 March 2005, there was a further complaint made by Melissa about Stephen stalking her, the complaint having been made at about the time the original trial date of the charges against the appellant had been vacated. Constable Bratchell investigated the matter and then filed a report and took no further action.
After Constable Bratchell completed her evidence, the appellant’s mother resumed giving evidence-in-chief. She said in 2004 she became aware that the police wanted to speak to her son about something other than B’s allegations. She then said that at some stage in 2004 she had been to the police with Melissa as she had been concerned about her behaviour in the previous year. She said[11]:
I was actually waiting at the bus stop at Colonnades shopping centre thinking about her and about her behaviour for the previous year because I’ve had a lot of trouble with her in and out of hospital being seen by counsellors, and I just thought ‘God, I wonder if this boy has done anything to her’ and I rang and asked her.
[11] Tr 792
She said that as a result of what Melissa then told her, she took Melissa to the police station. Since that time Melissa had been going to counselling.
Application for counselling notes, s 67F(2):
As a result of what the appellant’s mother said about these matters, the prosecution issued subpoenas for production of various medical notes which included notes relating to Melissa’s counselling sessions. The prosecutor then made an application to the judge to inspect the relevant documents in order to cross-examine both the appellant’s mother and Melissa as she wished to put to them that each of them was lying and had fabricated the complaint with respect to M to get the appellant out of trouble.
In making this application the prosecutor did not know what was in the notes, nor whether the counselling notes related to matters of a sexual nature so as to attract the provisions of s 67E the Evidence Act 1929 (SA) (the Act). The judge then discussed the provisions of s 67E and s 67F of the Act with counsel. Section 67E provides:
(1)A communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity.
(2)However, the following communications are not subject to public interest immunity:
(a) a communication made for the purposes of, or in the course of, a physical examination of the victim or alleged victim of a sexual offence by a registered medical practitioner or registered nurse; or
(b) a communication made for the purposes of legal proceedings arising from the commission of the alleged offence or for commencing such legal proceedings; or
(c) a communication as to which reasonable grounds exist to suspect that the communication evidences criminal fraud, an attempt to pervert the administration of justice, perjury or another offence.
(3) A public interest immunity arising under this section cannot be waived by -
(a) the counsellor or therapist; or
(b) a party to the protected communication; or
(c) the victim or alleged victim of the sexual offence or the guardian of the victim or alleged victim.
Section 67F provides:
(1) Evidence of a protected communication -
(a) is entirely inadmissible in committal proceedings; and
(b) cannot be admitted in other legal proceedings unless -
(i)the court gives leave to a party to the proceedings to adduce the evidence; and
(ii)the admission of the evidence is consistent with any limitations or restrictions fixed by the court; and
(c) is not liable to discovery or any other form of pre-trial disclosure.
(2)On an application for leave to adduce evidence of a protected communication, the judge may make a preliminary examination of the relevant evidence if satisfied that -
(a) the applicant has a legitimate forensic purpose for seeking leave to adduce the evidence; and
(b) there is an arguable case that the evidence would materially assist the applicant in the presentation or furtherance of his or her case.
(3)For the purposes of a preliminary examination of evidence, the court may order the counsellor or therapist to do one or more of the following:
(a) to provide written answers to questions;
(b) to produce written materials relating to the relevant protected communications;
(c) to appear for oral examination.
Exceptions:
1. If the counsellor or therapist who provided the counselling or therapy is an employee, answerable to another (the principal) in the organisation in which the counsellor or therapist is employed, an order under this subsection is to be addressed to the principal unless the court is satisfied that there are good reasons for not taking that course in the circumstances of the particular case.
2. An order requiring a person to appear for oral examination is not to be made unless the court is satisfied that the examination cannot otherwise be effectively conducted.
(4) The following provisions govern the conduct of a preliminary examination:
(a) the preliminary examination is to be conducted -
(i)in the absence of the jury (if any); and
(ii)in a room closed to the public; and
(b) the evidence taken at the preliminary examination is not to be disclosed to the parties or their legal representatives except to the extent determined by the court; and
(c) no record of the preliminary examination is to be available for public access.
(5)In deciding whether to grant leave to adduce evidence of a protected communication, the court is to weigh -
(a) the public interest in preserving the confidentiality of protected communications; against -
(b) the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.
(6) In weighing the above considerations, the court is to have regard to -
(a) the need to encourage victims of sexual offences to seek psychiatric or psychological therapy and the extent to which the effectiveness of such therapy is dependent on the maintenance of confidentiality between the counsellor or therapist and the victim;
(b) the probative value of the evidence and whether its exclusion may lead to a miscarriage of justice;
(c) the attitude of the victim or alleged victim to whom the communication relates (or the guardian of the victim or alleged victim) to the admission of the evidence;
(d) whether admission of the evidence is being sought on the basis of a discriminatory belief or bias;
(e) the extent to which admission of the evidence would infringe a reasonable expectation of privacy and the potential prejudice to any person who would otherwise be protected by public interest immunity.
(7)The court is not to grant leave to adduce evidence of a protected communication unless satisfied that the public interest in preserving the confidentiality of protected communications is outweighed, in the circumstances of the case, by the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.
(8)If the court decides to grant leave to adduce evidence of a protected communication, it may make ancillary orders -
(a) to prevent further publication or dissemination of the evidence; or
(b) for any other purpose the court considers appropriate.
The judge, having discussed these matters with counsel, decided that before proceeding further it was appropriate for him to inspect the documents in order to determine whether they were protected communications for the purposes of s 67E. Having done so, he informed counsel that he had looked at some of the notes in one particular file and considered there was nothing in that file which could be characterised as a communication made in a therapeutic context. He therefore permitted that file to be inspected. He went on to say that there were a significant number of documents in another [named] file relating to Melissa that were not made in a therapeutic context but there were a number of documents which prima facie fell into that category.
The prosecutor then made an application for leave to adduce evidence with respect to the protected documents and if such application was granted for leave to inspect the file. Following that application, the judge indicated that he would determine whether he should make a preliminary examination of the proposed evidence. He could only do that, however, if he was satisfied pursuant to the provisions of s 67F(2)(a) and (b) that counsel had a legitimate forensic purpose for seeking leave to adduce that evidence and that there was an arguable case that the evidence would materially assist the prosecutor in the presentation or furtherance of her case.
The prosecutor was placed in the difficult position of not knowing what exactly was in the file at the time of making the application for leave to adduce evidence. The thrust of the argument put by the appellant on appeal was that in those circumstances the prosecutor had failed to satisfy the criteria required by s 67F(2). Accordingly, the application made by the prosecutor was no more than a fishing expedition. The prosecutor argued, however, that she had been put on notice by the defence that Melissa was going to give evidence which provided a motive for M having fabricated evidence against the appellant in order to extricate himself from any trouble he may have been in with respect to Melissa. Melissa’s credibility was therefore a very live issue in the case. Melissa’s complaint against M was apparently made to the police only a few hours after police had arrested the appellant on 14 December 2004, although it related to an incident which was alleged to have taken place between October and November in 2003. If, therefore, evidence existed which potentially discredited Melissa in what the prosecution contended were completely false claims that was a matter the prosecution was entitled to investigate.
Following those submissions, the judge indicated that he was satisfied that both pre-conditions of s 67F(2) had been satisfied and that he proposed to make a preliminary examination of the evidence in the absence of the jury. The judge then conducted an examination in a closed court in accordance with the provisions of s 67F(4)(c). He spoke to Melissa and told her that an application had been made to look at her counselling notes. He explained that he wished to ascertain her attitude about the documents being inspected. He also explained that counsel for the prosecution and the defence and, if it came to it, the jury, would find out what was in those notes and that she could be cross-examined about the contents of them. In due course Melissa indicated that she would be happy with whatever decision was made by the judge as to this matter.
At the conclusion of the examination the judge indicated to counsel that, having weighed up the various matters referred to in s 67F, he was satisfied that the public interest in preserving the confidentiality of protected communications was outweighed by the public interest in preventing a miscarriage of justice that might arise by suppression of the relevant evidence. He then gave permission for inspection of the relevant parts of the file. Melissa was subsequently cross-examined about what she had told police and counsellors from time to time which disclosed some inconsistency in her complaints with respect to M which included an escalation of her original complaint of indecent assault to a charge of rape. She had also made a complaint to the counsellor about M interfering with an eight year old girl some two years earlier. Melissa was aware that such an allegation had previously been made about the appellant interfering with an eight year old girl, but she maintained that this was a different girl. There were also references in the file about complaints Melissa had made about B’s father stalking her and threatening to rape her, although Melissa denied that she had told the counsellor about Stephen threatening to rape her.
The procedure to be adopted with respect to access to protected communications was discussed in Question of Law Reserved (No 1 of 2000)[12]. That case was concerned with an application by an accused person for access to documents from health service providers relating to investigations and reports of child abuse concerning a number of children. Lander J (with whom Debelle and Nyland JJ agreed) in his reasons for decision referred to the difficulties confronting an accused person in criminal proceedings in making an application under s 67F(2) as such a person would not ordinarily be aware of the communication or the evidence of that communication. Lander J commented (at 359-360):
It would be a relatively rare circumstance when an accused person was able to establish that there was a communication, the terms of the communication and the evidence of that communication.
[12] 77 SASR 344
Lander J considered whether the court was entitled to look at the evidence of a communication for the purpose of determining whether it came within the definition of protected communication under s 67D and said (at 360):
There may be cases where it will be necessary for the court to inspect the evidence for the purpose of determining whether or not the evidence is of a protected communication. That would be a matter of last resort. Ordinarily the court could be satisfied upon evidence given either in affidavit or orally that the evidence was a protected communication or not. If, however, there was any real doubt that the evidence came within a protected communication (s 67D) then the court could, I agree, inspect the evidence for that purpose.
Lander J said that if, following such an inspection, the court decided that they were not documents to which s 67D applied, then whether or not an accused person would be entitled to inspect and have access to them would be governed by ordinary common law principles. He, however, went on to say (at 361):
If on the other hand the court determines after an inspection of the documents or even without an inspection of the documents that the documents are documents to which s 67D applies then they are privileged by public interest immunity. If they are entitled to be inspected by the accused it will only be if the accused can bring himself or herself within s 67F.
The procedure therefore to be applied in my opinion so as not to frustrate the clear purpose and terms of the legislation is to first identify those communications or those documents which identify those communications as being either protected communications or not.
For the purpose of so concluding a judge may, if it is necessary to make that determination, inspect the evidence of those communications.
If the court then believes that the communications or the documents containing evidence of those communications are not protected communications under s 67D then the accused will be entitled to such access to those communications or the documents evidencing those communications as is allowed by the common law.
If on the other hand the court concludes that the communications are protected communications and thereby privileged then the accused must if he or she wishes to adduce evidence of those communications make application under s 67F(2). That application must be made, in my opinion, in the absence of the accused or the accused’s legal representatives first having access to the evidence of those communications.
Whether the accused is entitled to adduce that evidence will depend upon whether the accused can bring himself or herself within s 67F as I have explained it.
He then concluded (at 365):
In my opinion if a court does conclude, after conducting a preliminary examination, that the evidence of the protected communication should be admitted in the legal proceedings then the Judge would have to allow all parties access to that evidence before the evidence was admitted. Section 67F(4)(b) allows the court to disclose to the parties or their legal representatives evidence taken at the preliminary examination which, of course, would include the evidence of the protected communication. If the court was of the opinion that the evidence was relevant and ought to be admitted in the legal proceedings the court would have to give the parties the opportunity to examine the evidence in case the party moving for the admission of the evidence wished to withdraw that motion.
In this case, the prosecutor had some idea as to what might be contained in the notes as she had been put on notice by defence counsel in his opening address that he intended to lead evidence from Melissa of an assault upon her committed by M. The appellant’s mother then gave evidence in which she referred to the possibility of M having done something to Melissa and Melissa’s subsequent attendance at counselling. If M had assaulted Melissa, as the defence asserted, that evidence was potentially destructive of the prosecution case with respect to M as it clearly provided a motive for M to fabricate his complaint against the appellant.
The prosecutor’s initial application was only to inspect the documents. That was not, however, permissible as s 67F(1)(c) provides that a protected communication is not liable to discovery or any other form of pre-trial disclosure. The prosecutor subsequently made an application pursuant to s 67F(2) for leave to adduce evidence of what was contained in those notes. In our opinion, in the circumstances of this case, particularly the striking fact that the stale allegation against M was published to the police on the very day of the arrest of Melissa’s brother, and the fact that there were other complaints made by Melissa, including one linked to another alleged victim of the appellant, namely B, it was “on the cards” that there would be something in the counselling notes which would either support or discredit the evidence of Melissa in what she had to say about these matters. This was a case in which the judge was obliged to look at the contents of the files in order to determine whether they were protected communications within the meaning of the Act. After the judge ruled that some fell into that category, the prosecutor applied for leave to adduce evidence with respect to them. It was only after that application was made that the judge conducted the preliminary examination of Melissa, following which he found that the requirements of s 67F(2) had been satisfied. There was ample evidence to support that finding. In our opinion, the appellant has failed to demonstrate any error in the way in which the judge dealt with this matter. This ground of appeal must fail.
Ground 8 – directions as to cross-admissiblity:
Ground 8 is a complaint that the learned trial judge erred in failing to direct the jury that evidence in support of a count was only admissible in relation to other counts if there was no rational view of the evidence consistent with innocence.
The judge directed the jury that subject to his more specific directions, the jury, in assessing each count, should only have regard to the evidence directly relating to that count.
The judge then went on to direct that where the jury was satisfied beyond reasonable doubt that the accused was guilty of any particular count, it could use that evidence in proof of other counts where the behaviour attributed to the appellant on separate occasions by separate boys disclosed a similar pattern of behaviour by the appellant, such that it raised the improbability of separate complainants making similar allegations unless they were true. The judge instructed the jury that in this way the evidence of one complainant could be used in proof of allegations by another, and that any “coincidence of accounts” was a relevant factor to be considered.
In the course of his directions, the judge explained that under these circumstances the jury’s satisfaction as to one count could become an item of circumstantial evidence which could be used in proof of another count.
The appellant took no issue with these directions so far as they went. But he argued that the judge fell into error by failing to give a direction to the effect that the evidence on one count could only be so used where the jury was satisfied that there was no other rational view of the evidence consistent with innocence of the charge under consideration. The appellant’s counsel struggled to formulate the precise direction which he submitted should have been given. In support of his submission he relied on a paragraph in the judgment of Mullighan J in R v Liddy[13] at [82]. That paragraph is as follows:
The evidence in support of each count is admissible in relation to each other count even though the counts relate to different victims. If the jury concluded that the conduct relating to a particular charge had been proved beyond reasonable doubt, with the obvious consequence that the conduct became a proven fact, that fact is relevant in the consideration of the other charges as a piece of circumstantial evidence provided that there is no rational view of the evidence that is consistent with the innocence of the appellant of the charge under consideration.
[13] (2002) 81 SASR 22
There Mullighan J was discussing the test of admissibility of similar fact or propensity evidence to be applied by the trial judge before admitting such evidence. The judge there encapsulates the test for admissibility set out in a number of decisions in the High Court including R v Hoch[14] and R v Pfennig[15]. Neither in Liddy’s case nor in the High Court decisions is there any requirement that, having admitted the evidence, the judge direct the jury in terms of the test for admissibility. In our view, counsel’s complaint is misconceived.
[14] (1988) 165 CLR 292
[15] (1995) 182 CLR 461
We consider that the judge’s classification of this evidence as circumstantial evidence was correct. However, viewed as a whole, this was not a case relying substantially on circumstantial evidence, and the reference to circumstantial evidence would better have been omitted.
The improbability of the complainants giving similar accounts of what had happened to them, unless the incidents had in fact occurred in the way that they described, was simply one factor to be considered by the jury with all the other evidence in the case. The judge directed the jury that they could not use the evidence of one complainant as proof of charges against another complainant unless they were satisfied beyond reasonable doubt as to the truth of those matters. It is unnecessary to determine whether that direction was unnecessarily favourable to the appellant. In our opinion the appellant has not made good his complaint with respect to the directions on this aspect of the case.
Conclusion:
In our opinion, the appellant has failed on all grounds of appeal. We would dismiss the appeal.
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