R v Zappavigna - [2015] SASCFC 8

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ZAPPAVIGNA
[2015] SASCFC 8
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Stanley)
6 February 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - OTHER OFFENCES
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY
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 - DIRECTIONS TO JURY
Appeal against conviction. The appellant was convicted following a trial by jury of persistent sexual exploitation of a child. The victim, V, is the child of the appellant’s former partner.
Whether the trial Judge erred in admitting evidence of discreditable conduct on the part of the appellant, being evidence of the appellant’s breach of a Families SA directive, and a bail condition. Whether the trial Judge’s reasons for admitting the evidence of discreditable conduct were correct. Whether the trial Judge erred in directing the jury as to the permissible and impermissible use of discreditable conduct evidence.
Held per Kelly J (Blue and Stanley JJ agreeing) dismissing the appeal:
1. The trial Judge did not err in admitting the evidence of discreditable conduct. The admission of the discreditable conduct evidence was justified under s 34P(2) of the Evidence Act 1929 (SA).
2. It is not necessary to determine whether the trial Judge’s reasoning for admitting the evidence of discreditable conduct was correct. If the trial Judge has made any error in reaching the same conclusion as the Court of Appeal, it is of no consequence.
3. No criticism can be made of the trial Judge for referring to a fairly fine line between the permissible and impermissible use of discreditable conduct evidence when giving the required direction. The Judge’s comment was made in the course of emphasising to the jury that they must not cross that line.
Evidence Act 1929 (SA) s 34P(2)(a), s 34P(2)(b), s 34R(2); Children's Protection Act 1993 (SA) s 52AAB(1), referred to.
R v MJJ; R v CJN (2013) 117 SASR 81; BBH v The Queen (2012) 245 CLR 499, applied.
R v Ball [1911] AC 47, distinguished.
R v Maiolo (No 2) (2013) 117 SASR 1, considered.

R v ZAPPAVIGNA
[2015] SASCFC 8
Court of Criminal Appeal: Kelly, Blue and Stanley JJ
KELLY J.

The appellant was convicted after a trial by jury of one count of persistent sexual exploitation of a child, to whom I shall refer as “V”. V was the step‑daughter of the appellant.
The appellant appeals against his conviction on eight grounds. The grounds of appeal relate to the admission, and directions to the jury in respect, of evidence that the appellant was the subject of a Families SA directive and a home detention bail agreement prohibiting him from contacting V, and that he breached the directive and bail agreement by contacting and attempting to contact V.
Background
Before dealing with the grounds of appeal, it is necessary to summarise the relevant background.
The prosecution case was that the appellant had a sexual relationship with V for approximately six months between September 2012 and March 2013. V was 11 and 12 years old at the period of the alleged offending. On 12 December 2013, the Director of Public Prosecutions filed an information in the District Court in the following terms:
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Franco Zappavigna, over a period of not less than three days between the 4th day of March 2012 and the 31st day of March 2013 at Elizabeth Park, Renmark and other places, committed more than one act of sexual exploitation of [V] a person under the age of 17 years by:-
(a)     causing [V] to perform an act of fellatio upon him on more than one occasion;
(b)     performing an act of cunnilingus upon [V] on more than one occasion;
(c)     by inserting his penis into [V’s] vagina on more than one occasion.
The appellant commenced a relationship with V’s mother in around 2010/2011. As a result of that relationship, he came into contact with V and V’s siblings. At the commencement of that relationship, V lived in a house with her mother and siblings in Elizabeth, which house the appellant regularly visited.
In 2012, the appellant took V to a local tennis club about once per week and helped her to practise and train. The prosecution alleged that in mid-2012 the appellant began to display a sexual interest in V and there was an escalation in sexual contact between the two from touching and kissing to, ultimately, cunnilingus and fellatio. The prosecution case was that sexual contact between the appellant and V often occurred in the car when the appellant drove V to and from tennis training. During this period, the appellant maintained his relationship with V’s mother and they decided to move in together.
In September 2012, the appellant commenced living with V, V’s mother and V’s siblings in Renmark. The prosecution alleged that the sexual contact between the appellant and V continued in Renmark and occurred on outings and sometimes in their house when no one else was home.
It was alleged that in around November 2012 the appellant first had penile-vaginal sexual intercourse with V in the back seat of his car, which he had parked away from the house. The prosecution alleged that from this time onwards the appellant regularly had sexual intercourse with V. In particular, it was alleged that acts of unlawful sexual intercourse occurred on 12 January 2013, 14 February 2013 and 4 March 2013.
On 3 December 2012, the appellant took V to a General Practitioner, Dr Nweze, to obtain, amongst other things, a prescription for birth control pills. Dr Nweze did not give evidence but her statement to the police was read to the jury. Dr Nweze stated that when asked by V to prescribe her a birth control pill, she asked V why she felt that it was necessary. V told Dr Nweze that she had been menstruating since she was nine years old but that her cycle was irregular. Dr Nweze asked V if she was sexually active. V denied being sexually active and told Dr Nweze that she had menstruated four weeks ago. Satisfied that V was not pregnant, Dr Nweze did not provide V with a prescription for the birth control pill but instead asked V to complete a menstrual calendar and invited her to return in two months. V did not return and Dr Nweze had no further dealings with her.
On 19 December 2012, the appellant went to a chemist and obtained a morning-after pill, which the prosecution alleged he gave to V. In addition to evidence given by the pharmacists Mr Con Floridis and his son Mr John Floridis as to the purchase by the appellant of the morning-after pill, statements were also read to the jury from two employees at a pharmacy frequented by the appellant. Ms Kemp, a retail manager, described ‘totalling and charging’ the appellant’s prescriptions for Viagra and the morning-after pill. Ms Mutton, a pharmacy assistant, described occasionally seeing the appellant in the pharmacy with a ‘very young looking female’ who she believed to be his daughter. Ms Mutton described the appellant as being ‘constantly in [the young female’s] personal space’ and ‘never more than a couple of inches away from her’. Ms Mutton stated that whenever she spoke to the young female the appellant would ‘always answer for her’.
The appellant, in the course of his employment as a truck driver, often made return journeys from Renmark to Adelaide. During the Christmas school holidays of 2012/2013, V on occasion accompanied him on those journeys. It was alleged that on those journeys the appellant had sex with V on a mattress located in the cab of the appellant’s truck and in hotels.
A number of persons connected with the appellant’s employment as a truck driver gave evidence and provided statements as to their observations of the appellant and a young female described by them either as being his daughter or step-daughter. Mr Strother, a truck driver, gave evidence of being paired with the appellant in truck driving duties, which meant that the two would see each other when the truck was handed over between them. Mr Strother gave evidence of seeing the appellant at truck handovers with a young girl on ‘four to six’ occasions. Mr Strother said that the young girl was first introduced to him as the appellant’s step-daughter and that, on that occasion, the appellant commented to him, ‘isn’t she beautiful’. Mr Strother also described the appellant urinating on that occasion while his step-daughter was standing two metres away. Mr Strother said that he did not notice any physical contact between the appellant and the girl, but remarked that he ‘was always very close to her’.
Statements were also read to the jury from two diesel mechanics, Mr Halvey and Mr Bishop, each of whom observed the appellant with a young girl in the truck yard in Renmark. Mr Halvey stated that the appellant ‘was always touching her, always hugging her and putting his hand around her waist’ and that he ‘would kiss her on the side of her head and on the forehead.’ Mr Halvey said that the appellant did this while talking to him. Similarly, Mr Bishop stated that the appellant ‘seemed to be very touchy feely with the young girl’ and that he saw him ‘with his arm around her’ and ‘kissing her on the cheek.’ In his statement, Mr Bishop also described witnessing the appellant urinate in front of the young girl and that when doing so ‘he didn’t try and hide himself from her at all.’
In December 2012, the appellant was suffering from priapism, a condition that causes a prolonged and painful erection. The prosecution alleged that the appellant treated himself for this condition by withdrawing blood from his penis using a syringe, and that he did this in the presence of V. The appellant was ultimately treated for this condition in the Emergency Department of the Royal Adelaide Hospital by Dr Catterwell, in the presence of V, on 21 December 2012. Dr Catterwell gave evidence as to his attendance on the appellant, who was accompanied by a young girl identified by the appellant as his 13 year old step-daughter. Dr Catterwell explained in treating the appellant that he was required to ask questions about the appellant’s sexual history and examine the appellant’s penis. Dr Catterwell voiced his concern that it was inappropriate to conduct his examination in the presence of a young girl. Dr Catterwell recalled that the appellant became ‘extremely agitated’ and refused to let the young girl leave the cubicle.
During the period of the offending, the appellant attempted to maintain his relationship with V’s mother. However, from September 2012 the relationship had begun to deteriorate and on 24 March 2013, V’s mother left the appellant and took V’s siblings with her. However, when V’s mother left, V refused to go with her and was left in the care of the appellant.
Two days after V’s mother left, on 26 March 2013, the appellant took V to the Riverland office of Families SA and enquired how he could obtain permission to become V’s carer, notwithstanding that his relationship with V’s mother had ended. While at the office of Families SA, the appellant spoke with two social workers, Patrick Germeroth and Jacqueline Caputo, each of whom gave evidence at trial. They gave evidence of the appellant’s unusual behaviour towards V during the course of his interview with them. In particular, Mr Germeroth described the appellant ‘welling up’ during the interview, holding and kissing V’s hand, and saying ‘I love her’. Ms Caputo stated that throughout the interview the appellant would ‘stroke the child’s hand’, ‘stroke his face with the child’s hand’ and ‘put the child’s fingers in his mouth’. Ms Caputo said that V continued to converse in a normal manner while this was occurring.
Shortly after the appellant’s visit to Families SA, V was taken from his custody and placed into foster care. It was alleged by the prosecution that, once V was out of the appellant’s custody, he contacted her by telephone and text message on an almost daily basis.
On 11 April 2013, and as a result of that continued contact, officers from Families SA caused a directive to be served upon the appellant pursuant to s 52AAB(1) of the Children’s Protection Act 1993 (SA), which relevantly provides:
52AAB — Direction not to harbour, conceal or communicate with child
(1)The Chief Executive may, by written notice, direct a person not to communicate, or attempt to communicate, with a specified child (in any way or in a way specified in the notice) during a specified period.
The s 52AAB directive contained an express written condition requiring the appellant to cease contacting V. The directive itself was not tendered at trial, but the following secondary evidence of its content was given without objection by a Families SA caseworker, Ms Puckridge, and Detective Senior Constable Ollerenshaw:
M.I PUCKRIDGE XN
Q.What was the type of direction.
A.It was a written directive, to stop communication happening between the two people.
Q.And is it a, as you say written directive, one that's drafted in a way that explains the conditions within it.
A.Yes.
Q.And in this case was there an express written condition to be issued to Mr Zappavigna that he not communicate or attempt to communicate with [V].
A.Yes.
N.G OLLERENSHAW XN
Q.Now, in that exchange you refer to his breach of a written directive. Was that a written direction that you were aware of that had been made and issued by Families SA which was directed at preventing his communication with or attempted communication with [V].
A.Yes.
The prosecution alleged that, notwithstanding his having been served with the directive, the appellant continued to contact and attempt to contact V by driving past her foster home, arranging for a letter to be delivered to her, attempting to pass notes to her concealed in clothing, delivering a mobile phone to her school and contacting her on Facebook.
The prosecution alleged that on 8 May 2013, after having been warned repeatedly by the police not to contact V, the appellant was arrested for breaching the directive. It was an agreed fact put before the jury that on 16 May 2013, the appellant was released on home detention bail on condition, amongst others, that he not communicate with or approach V.
On 29 July 2013 the appellant breached that bail condition by attending at V’s primary school and calling out to her. V informed the principal at the school of the appellant’s attempt to contact her, and the principal in turn informed the police.
On the evening of 29 July 2013, V made the initial complaint about sexual offences committed upon her by the appellant. That initial complaint was made to a family friend, to whom she referred as her ‘Aunty’. Later, V informed her mother of the appellant’s conduct. As a result, V was taken by her mother to the Sturt Police Station on 11 August 2013 to speak to the police.
On 13 August 2013, the appellant was arrested and eventually charged with the offence the subject of this appeal. At the time of his arrest and at all other times, the appellant denied all the allegations made against him, including the breaches of bail and the s 52AAB directive.
At trial, the appellant elected not to give evidence. Though he did not give evidence, the case for the defence was that, although the appellant’s relationship with V was ‘intense, perhaps even overconnected’ and ‘obsessive’, it was not sexual. To the contrary, the relationship was entirely platonic.
Complaints on Appeal
There are eight grounds of appeal. Grounds 1 to 4 raise the issue of the admissibility of evidence of discreditable conduct on the part of the appellant. Grounds 5 to 7 raise the issue of whether the trial Judge’s reasons for admitting the evidence of discreditable conduct were correct. Ground 8 raises the issue of the adequacy of the trial Judge’s directions in relation to the use of the evidence of discreditable conduct.
Insofar as grounds 5 to 7 raise an issue as to the trial Judge’s reasoning, it is not necessary to determine these grounds on appeal. As the majority in R v MJJ; R v CJN[1] pointed out, it is the legal conclusion reached by the Court of Appeal as to whether the evidence was properly admitted which is determinative. If the Judge has made any error in reaching the same conclusion as the Court of Appeal, it is of no consequence.
[1] (2013) 117 SASR 81.
For this reason I deal first with grounds 1 to 4 before turning to the issue which arises on ground 8.
Discreditable Conduct: The Evidence
Before turning to the questions of law, it is necessary to identify precisely the evidence that was sought to be led which comprised evidence of discreditable conduct on the part of the appellant.
There was evidence, including evidence from the complainant herself, that after she was taken into foster care shortly after 26 March 2013, the appellant continued to try to make contact with her through Facebook and by letters. The Families SA caseworker, Ms Puckridge, gave evidence that, in light of Families SA becoming aware that the appellant was still trying to contact V, a decision was made to issue to the appellant a particular type of written directive not to communicate or attempt to communicate with her. There was evidence that the written directive was served upon the appellant by a process server on 11 April 2013.
Evidence of the breaches of that directive was given through the evidence of Detective Brevet Sergeant O’Malley, who said that he followed the appellant on 23 April 2013 while the appellant drove around various areas in Berri, including past the foster carer’s home. There was also evidence of Facebook messages from mid-April 2013 to 8 May 2013, when the appellant was arrested for breaching that written directive. Before being arrested, he had been told in telephone conversations with the police officer that he was not to contact V. There was evidence that those conversations occurred in the context of the appellant ranting and raving and complaining to the police officer about not being allowed to see V.
It was an agreed fact that on 16 May 2013 the appellant was subjected to a condition of bail that he not approach V.
There was evidence from teachers at V’s primary school and from V herself that the appellant was seen outside the school perimeter on 29 July 2013. Notably, on that date the appellant had been given permission by his home detention supervisor to leave his home to attend at the Residential Tenancies Tribunal in Grenfell Street.
Discreditable Conduct: Admissibility
The first complaint made about the admission of the discreditable conduct evidence was that all of the conduct said to be comprised in the discreditable conduct evidence occurred outside of the dates alleged in the information and subsequent to any of the charged conduct.
It was submitted that evidence of conduct which post-dated the offending conduct did not have strong probative value to justify admission under s 34P of the Evidence Act 1929 (SA) (“Evidence Act”). Further, it was submitted that, even if the conduct did have such probative value, it was highly prejudicial evidence in that it was evidence that the appellant was prepared to break the law and disregard orders from Families SA.

It was further submitted that the introduction of the evidence of the law breaking behaviour by the appellant had the inevitable consequence that the jury were told about the dealings that Families SA had with V and the appellant. That evidence implied that the formal directive flowed from a determination within Families SA that V was in need of protection from communication with the appellant. In the same way, from the evidence about the breach of the bail condition, the jury would inevitably have inferred that the Magistrates Court gave its imprimatur to a bail condition forbidding the appellant to make any contact with V.
The appellant contended that the admission of this evidence could never be justified under either limb of s 34P(2) of the Evidence Act.
Section 34P of the Evidence Act provides:
34P—Evidence of discreditable conduct
(1)     In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)is inadmissible for that purpose (impermissible use); and
(c)subject to subsection (2), is inadmissible for any other purpose.
(2)     Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)     In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)     Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)     The court may, if it thinks fit, dispense with the requirement in subsection (4).
The two limbs of s 34P(2)
Section 34P(2)(a) deals with all discreditable conduct evidence being considered for admission for a permissible use. Section 34P(2)(b) imposes an additional condition on the admission of discreditable conduct evidence which shows a particular propensity or disposition of the defendant, requiring not only that its probative value outweighs any prejudice effect, but also that the evidence has strong probative value having regard to the particular issue or issues arising at trial.
It was common ground at trial, and is common ground on appeal, that the evidence in question comprised evidence of discreditable conduct within the meaning of s 34P.
Counsel for the respondent contended that the applicable test for the admissibility of the discreditable conduct evidence led here was confined to that set out in s 34P(2)(a). It was submitted that the relevance of the discreditable conduct evidence lay in its capacity to rebut the defence case that the appellant’s behaviour, as observed by many witnesses who saw him with V, was nothing more than the conduct of a man who had a particularly close and loving relationship with V, quite intense but nevertheless platonic, and to rebut the defence submission that the behaviour of the appellant towards V was so unusual and so blatant that it told against an illicit relationship. The respondent submitted that the discreditable conduct evidence gave colour to the evidence given of the appellant’s prior conduct towards V. The fact that the appellant was prepared to breach the written directive of Families SA and disregard a bail condition disclosed an obsessiveness in the relationship that could only be explained on the basis of a sexual interest in V.
Nevertheless, counsel for the respondent contended that s 34P(2)(b) had no application to the discreditable conduct evidence. The submission was that, although the discreditable conduct evidence was evidence of obsessiveness on the part of the appellant towards V, it was not evidence that in itself directly proved a sexual interest, or, in the words of s 34P, a ‘propensity or disposition’. It was submitted that the obsessiveness was relied upon by the prosecution as a piece of circumstantial evidence relevant to whether there was a sexual relationship between the appellant and V. When the discreditable conduct evidence was considered in the context of the whole of the evidence, including the evidence of V, it made it more probable that the appellant’s behaviour towards V was motivated by sexual interest.
The only purpose of admitting the discreditable conduct evidence was to prove that the appellant’s interest and obsession with the complainant was sexual rather than platonic. As such, it was capable of being used by the jury in propensity reasoning towards his guilt. In other words, it invited the jury to reason that, by virtue of the appellant’s sexual interest and obsession with V at the time of the law breaking behaviour, he was more likely to have sexually exploited V between 4 March 2012 and 31 March 2013. Analysed in this way, the discreditable conduct evidence was, as the appellant submitted, evidence of propensity or disposition; the only purpose in seeking to have the evidence admitted was to use it to invite the jury to infer a particular sexual disposition towards V and a particular propensity to behave sexually towards her.
For this reason, it was necessary to satisfy the test in s 34P(2)(b) of the Evidence Act, that is to say the evidence had to possess strong probative value having regard to the issues at the trial. As the High Court, Crennan and Kiefel JJ (Bell J agreeing), observed in BBH v The Queen:[2]
It should be accepted, in cases of this kind, that a finding of a sexual interest held by an accused father towards his daughter is evidence of the accused's motive or propensity to engage in sexual acts with the daughter, and that it might be employed by a jury in propensity reasoning towards guilt. In a case such as this little, if any, distinction may be drawn between motive and propensity. Where sexual interest is demonstrated, the test in Pfennig is therefore attracted.
[2] (2012) 245 CLR 499 at [153].
The respondent’s argument as to the basis for the admissibility of this evidence tends to demonstrate the accuracy of the observations made by Peek J in R v Maiolo (No 2)[3] that it might be thought that some of the cases where the justification for admissibility has been claimed as other than via propensity are, as a matter of logical analysis, cases of propensity.
[3] (2013) 117 SASR 1.
Strong probative value
Although the evidence of the appellant’s law breaking behaviour was confined to breaches of legal restrictions directed solely at preventing him from communicating with V, it was presented against the background of all the other evidence, including the evidence of observations of others describing the appellant’s fondling and touching of V in front of others, his attendance with her at the Royal Adelaide Hospital for treatment of his priapism, and his stays overnight at various hotels with V. When viewed in that context, its probative value was strong. It demonstrated that the appellant was prepared to go to great lengths to contact V even after she had been removed from his care, and even when he was specifically prohibited from doing so. The jury was entitled to see that preparedness as indicative of a sexual interest.
Prejudice
The discreditable conduct evidence comprised two elements: first, that the appellant breached a written directive of Families SA in order to contact V; and second, that he breached a bail condition by attempting to contact V one day whilst she was in the schoolyard. The direct prejudicial effect of that evidence was that it demonstrated that the appellant was a man who was prepared to disregard legal restrictions and breach bail conditions insofar as they prohibited him from pursuing his relationship with V. However, it was not as if the evidence suggested a general tendency to break the law.
The conduct of the appellant after V was taken into foster care, much of which did not reveal any law breaking behaviour was, in any event, both relevant and admissible. The secreting of the “love notes” in V’s clothing and the gifting of a bracelet after she was taken into care in particular were highly probative of a man so infatuated with the complainant that he could not stay away, even after being expressly told to do so. That conduct, along with other conduct already described, was so inextricably tied up with the events which unfolded after the written directive was issued that to have excluded evidence of it would have been an affront to common sense.
The direct prejudicial effect of the discreditable conduct evidence was minimal when considered in light of all the evidence, and its potential to cause prejudice was also relatively minor.
The contention by counsel for the appellant that the evidence of the appellant’s law breaking behaviour was indirectly prejudicial, due to the implications that Families SA and the Court considered it necessary to prevent the appellant from contacting V, also fails in light of the body of evidence at trial. The additional prejudice caused by that flow-on reasoning is minor, especially given the evidence that was already before the jury. It was not contested that the evidence of the observations of the two social workers who interviewed the appellant on 26 March 2013, Mr Germeroth and Ms Caputo, was admissible at the trial. Nor was it contested that the evidence that Families SA took V out of the appellant’s care was admissible at trial. From that evidence it would have been obvious to the jury in any event that Families SA took the view that it was in the best interests of V that the appellant not have contact with her. With the evidence comprising the basis for the decision to issue the directive before the jury, the additional prejudicial effect of the implication that Families SA sought to prevent the appellant contacting V is minimal. In the same way, the additional prejudice arising from the Court’s decision to make it a condition of bail that the appellant not contact V is also minor, when viewed in light of the evidence that was already before the jury. The fact that the appellant was willing to continue to try to contact V even after being expressly told not to was capable of demonstrating an obsession deep enough to lead him to disregard legal conditions which restrained him. However, in the scheme of things, the fact that the appellant was prepared to breach a court order and a Families SA directive in order to see V was, when viewed in the context of the other evidence, a relatively minor aspect of the substantial body of evidence which demonstrated the appellant’s obsessive behaviour towards the complainant.
The challenge to the trial Judge’s ruling that the discreditable conduct evidence should be admitted fails.
Directions Required
Whether that evidence was admissible under the provisions of s 34P(2)(a) or s 34P(2)(b) of the Evidence Act, it was still necessary for the trial Judge to direct the jury on the impermissible use of the evidence.
Section 34R(1) of the Evidence Act provides:
34R – Trial directions
(1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
The direction which the trial Judge gave was as follows:
It is important that I give you a special direction of law regarding two pieces of evidence that you have heard during the trial. The evidence is the evidence of the directive given by Families SA to the accused not to have further contact with [V] when she was in foster care in Renmark and the other is the bail condition imposed by the court that the accused not contact [V].
The prosecution alleges that the accused broke the conditions of the directive by contacting [V] while she was in foster care and he breached the bail condition by turning up at her school and trying to contact her on 29 July last year.
That evidence is permitted to be led by the prosecution to demonstrate that the accused had an obsessive and sexual interest in [V]. His interest in her was so strong, the prosecution alleges, that he was willing to disobey both the directive and the court order. His interest in her went beyond the normal stepfather-stepdaughter relationship and was sexual. The evidence of the breaches of the directive and the court order are circumstantial evidence suggesting the sexual attraction.
It will be for you as the fact finders to determine, first of all, whether you accept that the directive was given and the court order was made and then that the accused breached both. It may be that, in the light of the evidence you heard, you will be satisfied of those matters, that is that the directive was given by Families SA and the accused was served with it and he breached the directive by trying to contact [V] by telephone, by text and by attempting to send handwritten messages in the clothes that he dropped off for her. You might accept the evidence of [V] and the school teachers that he did turn up at her school and try to contact her on 29 July.
It will also be for you as the finders of fact to determine whether that evidence does, as the prosecution allege, indicate that the accused did have a sexual interest in [V] and it was not merely a stepfather/stepdaughter relationship. Before you could use that evidence in that way you would have to be satisfied beyond reasonable doubt that that is what it indicated. The defence case is that, however obsessive the accused’s behaviour in this respect might be, it does nothing to prove a sexual relationship.
So far I have been talking about the permissible way in which that evidence may be used. However, it is very important that I give you a direction of law about an impermissible way in which that evidence might be used. It would be impermissible for you to decide that the evidence makes it more likely that the accused is guilty of the charge. Nor should you use that evidence to conclude that the accused was of bad character or that he was a person who breaks the law. There might appear at first to be a fairly fine line between the permissible and the impermissible use but it is an important line and it must be strictly observed. You rely principally on the evidence of [V] to prove the charge against the accused. That is really ultimately what you decide the case on, although there is other supporting evidence. The evidence of the breach of the directive and the court order is really just a piece of circumstantial evidence which you may or may not use to conclude that the accused had a sexual interest in [V]. That is the important distinction between the permissible and the impermissible uses of that evidence.
The directions given are premised on the assumption that s 34R(2) of the Evidence Act applied. That subsection provides:
34R—Trial directions
...
(2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
A direction under s 34R(2) was not required in this case. The evidence of discreditable conduct was not essential to the process of reasoning leading to a finding of guilt. The discreditable conduct evidence was not the only evidence bearing on the proof of the appellant’s sexual interest in V. There was an abundance of other evidence from V and others who observed the interaction between the appellant and V from which a sexual interest in V could be inferred. The facts of this case are very different from those in which the admission of the propensity evidence is critical to the reasoning towards guilt, such as R v Ball.[4] In that case, the admission of the evidence that the appellant and his sister had previously had a child was critical to the proof of the charge.
[4] [1911] AC 47.
No criticism can be made of the reference by the trial Judge to a fairly fine line between the permissible and the impermissible uses when giving the required direction. In the circumstances of this case, there was indeed a fine line between the respective uses. On the one hand, the evidence of the discreditable conduct was relevant to prove the intensity of the appellant’s sexual interest in, and behaviour towards, V. On the other hand, the impermissible use of that same evidence would be to reason that, just because the appellant is a man who is prepared to break the law, he is therefore more likely to have committed this offence. The Judge’s comment was made in the course of emphasising to the jury that they must not cross that line.
The trial Judge identified the relevant evidence and he identified and explained the permissible use. He identified and explained the impermissible use. The impermissible use was that the jury should not reason that because the appellant was a man who had broken the law, he was a man of bad character and therefore more likely to be guilty of this charge.
In some respects, the direction given was unduly favourable to the appellant. It unnecessarily narrowed the proper use of the evidence. That is because, insofar as the discreditable conduct evidence was particular propensity evidence, that evidence was a basis for reasoning that it was more likely that the accused is guilty of the charge. This is precisely the process of reasoning that the trial Judge directed the jury not to engage in.
If the effect of the trial Judge’s direction was to set the bar higher than necessary before the jury could use the discreditable conduct evidence, that error could only have benefited the appellant. The trial Judge’s directions in this case were not capable of leading to a miscarriage of justice.
Conclusion
All the evidence before the jury was admissible. It was admissible as evidence of specific propensity and disposition.
The directions given as to use of the evidence were, in my view, unduly narrow; however for the reasons given, those directions could not have led to a miscarriage of justice. I would dismiss the appeal.
BLUE J: I agree.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Kelly J.