KG v R

Background

1. The background of this matter can be gleaned largely from the above introduction.
2. The conduct with which the co-accused has been charged relates to incidents of a sexual nature which are alleged to have occurred between 1997 and 2011. The principal complainant has alleged that, from the age of five, her father sexually assaulted her, commencing with acts of digital and penile intercourse, fellatio and later cunnilingus. She also has alleged that, from about the age of eight, her father sexually assaulted her with implements, by inserting in her vagina, and on one occasion her anus, certain tools. There are also allegations made by the principal complainant of violent behaviour by the co-accused at a creek on the property in which the family lived. The co-accused has also been charged with sexual offences against one of the principal complainant's two sisters, relating to conduct occurring when the father gave her massages. No violent or sadistic conduct is complained of by this complainant.
3. The sexual conduct alleged against the applicant is said to have occurred between 2001 and 2009. The alleged conduct involves the physical demonstration of, and giving instructions as to, masturbation to all three of the daughters. The complaints made by the principal complainant go further and involve the applicant giving her instruction as to how to pleasure her father sexually, how to fellate her father and how sexual intercourse was meant to feel (involving the applicant touching the principal complainant's clitoris and digitally penetrating her vagina), as well as conduct by the applicant touching the outside of the principal complainant's vagina.
4. Three of the counts charged against the applicant (counts 53, 54 and 57) related to an incident in December 2004 when it is alleged that both of the accused sexually assaulted the principal complainant. This is the only incident where it is alleged that both the accused were present and involved in the conduct of which complaint was made.
5. At the time of the application for a separate trial, there were 104 substantive counts, of which the co-accused was charged with 88 counts and the applicant was charged with 16 counts. There were also 28 statutory alternative charges in that indictment. The Crown has since amended the indictment to remove the 28 statutory alternative charges and certain other counts. On the amended indictment, the co-accused remains charged with 87 counts of a sexual nature and the applicant with 15 counts of a sexual nature. The principal complainant is the subject of 85 counts. To avoid confusion, where reference is made in these reasons to particular counts, the reference is to those counts as numbered in the indictment as it was before Christie ADCJ at the time of the separate trial application.

Basis of application for separate trial

1. The applicant has sought a separate trial on the basis that she will suffer prejudice in circumstances where, it is submitted, the jury will be overwhelmed by the prosecution case against the co-accused and will seek to use the significant body of evidence which is available to corroborate the case against the co-accused in order to find against the applicant. In this regard, emphasis is placed on the recognition that sexual cases are particularly likely to arouse prejudice against which a direction to the jury is unlikely to guard (see De Jesus v The Queen [1986] HCA 65; (1986) 22 A Crim R 375 at 378).
2. The applicant submits that each of the three circumstances in which Hunt J (as his Honour then was) recognised (in R v Middis, (Supreme Court (NSW), 27 March 1991, unrep)) that a separate trial would usually be ordered is applicable in this case.
3. First, it is submitted that the evidence against the applicant is significantly weaker than, and different from, that admissible against the co-accused. The applicant points to the Crown's concession that evidence of the use of tools is inadmissible against the applicant; and notes that it is not alleged that the applicant was aware of the alleged violent and sadistic acts of the co-accused or party to them.
4. The applicant points to the evidence that the Crown intends to adduce which is capable of corroborating the account of events given by the principal complainant as against the co-accused, including: expert medical opinion as to injury or damage to her hymen; handwriting analysis in respect of particular diary entries made by her; scientific evidence and various video recordings of the location where the alleged offences were committed by the father, as well as the discovery of particular implements on the property where the principal complainant said she had hidden tools used by the co-accused. Reference is also made to a pre-text telephone call between the second complainant and the co-accused in which the applicant submits the co-accused made significant admissions against interest in respect of the alleged sexual offences against the second complainant, the making of which would not be admissible against the applicant.
5. Second, it is submitted that the evidence of violent and sadistic acts by the co-accused is material that is highly prejudicial to the applicant but not admissible against her.
6. In this regard, the applicant points to the evidence of sexual violence by the co-accused that it is said has no probative value in her trial. Emphasis is placed on the fact that the only counts of a sexual nature charged on the indictment in which it is alleged that the applicant aided or acted in concert with the co-accused are count 16 (in which it is alleged that the applicant was an accessory before the fact to her husband's conduct by instructing her to "make noises" when her father had sexual intercourse with her to "make it better" for both the principal complainant and the father) and counts 53, 54 and 57 (which relate to the incident in December 2004 involving both of the accused).
7. Reliance is also placed on the fact that the alleged offences of the co-accused extend over a longer period (1997 - 2011) than those of the applicant (2001 - 2009) and that the applicant was absent from the home when many of the offences alleged against the co-accused were said to have been committed.
8. Third, it is submitted that the Crown case against the applicant is weaker than against the co-accused and there is a real risk that the weaker Crown case will be made immeasurably stronger by reason of the prejudicial material.
9. It is submitted that the giving of a direction to the jury as to the impermissible use against the applicant of the evidence accepted as not being admissible against her would not be sufficient to overcome the prejudice to her by reason of that evidence being before the jury (citing Verma v R (1987) 30 A Crim R 441). Indeed, the applicant contends that the Crown's contention that the issue of prejudice can be dealt with by directions to the jury because the complaints against the applicant are distinct and can be compartmentalised, reveals the flaw in the Crown's argument that any break in the nexus between the respective offences would render the case against the applicant unintelligible.

His Honour's reasons

1. His Honour gave ex tempore reasons for his refusal to order separate trials. In those reasons, his Honour had regard to the authorities on which the applicant relied and to the principles articulated therein (such as R v Middis; De Jesus v The Queen and Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292).
2. His Honour did not accept that the Crown case against the applicant was significantly weaker than that against the co-accused, though he accepted that it was considerably less in volume. Rather, his Honour considered that the central issue in the trial of the applicant was very likely to be the credibility of the complainants (and, to a large extent, the principal complainant).
3. His Honour rejected as "totally wrong" the submission made by the applicant that, in a joint trial, the vast majority of the evidence to be adduced at the trial would be admissible only against the co-accused and that there was only a small amount of one complainant's evidence that was admissible against both accused. His Honour also rejected as "totally wrong" the applicant's submission that separate trials would not necessitate the repetition of evidence by the complainants "to a great extent" (the applicant having accepted only that separate trials would necessitate the repetition of some evidence by one of the complainants; and that not to a great extent).
4. His Honour noted that the Crown had made it clear that the Crown did not claim that the applicant had anything to do with the "atrocious" acts alleged against the co-accused and recognised that there would need to be a direction from the trial judge that the Crown did not suggest that the applicant was party to any of the violent and sadistic acts alleged to have been committed by the co-accused.
5. His Honour said that the only evidence not admissible against the applicant was the evidence of "these dreadful and atrocious acts in the shed and down by the creek and other places" but went on to comment that there were some occasions on which the applicant must have known that some sort of discipline was being enforced upon the principal complainant because the principal complainant had complained on one occasion she was dragged through the kitchen out to the shed, and there were other occasions where the inference might be drawn that the applicant may at least have known that the principal complainant was the subject of some disciplinary action, at the hands of the co-accused (though not necessarily of a sexual nature).
6. His Honour also considered the inconvenience to the witnesses, particularly to the principal complainant, of a separation of the trials. In that respect, his Honour had regard to what was said by Toohey J in Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, as to the competing considerations of prejudice, additional court time and expense incurred by separate trials; the undesirability of inconsistent verdicts, the need to achieve finality; and the convenience of witnesses.
7. His Honour noted the Crown's submission to the effect that inconvenience and emotional trauma would accompany an order for separate trials, the principal complainant having had ongoing issues in relation to her mental health. His Honour accepted that it was undeniable that there was a factual commonality between a number of the offences and said that the necessity to adduce evidence of the fact, or at least part of the history, of sexual assaults by the co-accused as context evidence was indisputable.
8. His Honour was not prepared (and said his conscience would not allow him) to require the principal complainant to give evidence before two juries. His Honour therefore declined to order a separate trial.

Consideration of application for leave to appeal

1. The decision by his Honour not to order a separate trial was one that involved an evaluative exercise. His Honour was required to (and did) assess and balance the risk of prejudice to the applicant if she were not to have a separate trial against considerations of the kind referred to in R v Demirok [1976] VR 244, including that it is against the interests of justice that there be inconsistent verdicts and the convenience of the witnesses.
2. For this Court to intervene in relation to such a decision, error in the House v The King sense must be established: namely, that his Honour erred in his application of the law; made a material error of fact; or took into account an irrelevant consideration or failed to take into account a relevant consideration; or that the decision was so unreasonable or plainly unjust as to bespeak error of such a kind. The only "errors" identified by the applicant on the present application were those that it is said his Honour made in rejecting the submissions referred to at [22] above.
3. Whether or not there was a degree of overstatement in the rejection of those particular submissions as "totally" wrong, the basis on which his Honour rejected those submissions was not wrong in principle, nor was it unreasonable. The case against both accused must inevitably turn largely on the credibility of the complainants - and, in particular, the principal complainant. Much of the evidence going to the history of sexual abuse will be admissible (and will inevitably be sought to be adduced) on the trial of the charges against the applicant. Such evidence is clearly necessary to put in context the offences charged against the applicant.
4. Count 16, for example, requires there to be evidence of the previous sexual acts by the co-accused in relation to the principal complainant to render explicable what would otherwise seem on its face to be wholly implausible - a mother instructing her daughter on how to make sexual intercourse between the daughter and her father better for both of them. So too would such evidence be relevant to explain the daughter's acquiescence in the conduct of the father the subject of count 17 (in which the co-accused is charged with sexually assaulting the complainant on 31 December 2000).
5. The Crown submits that the history of sexual acts counters the improbability that a mother would, all of a sudden, encourage her daughter to engage in sexual intercourse with her father. Implicit in the applicant's alleged conduct the subject of counts 16, 29 and 70 is an awareness by the applicant that there was or had been some sexual intercourse between father and daughter in the past. It is submitted that the mother is unlikely to have made the suggestion to the complainant unless she knew that the principal complainant and her father had previously engaged in sexual conduct and hence that this evidence is relevant to a jury's assessment of the complainant's credit, in particular, to her apparent submission to the acts and instructions of her mother in the absence of complaint.
6. Similarly, it is submitted that the discussion that the principal complainant says she had with the applicant later in the same night that the alleged offence the subject of count 21 occurred, links the conduct alleged against the applicant in count 16 and the co-accused in 21 (count 21 is of sexual intercourse of the co-accused with the principal complainant when she was under 10). The alleged discussion is one in which the principal complainant says she asked her mother whether her having made noises while the co-accused was sexually assaulting her would have made it better for the co-accused, and stated that she did not enjoy sexual acts with the co-accused; and says that the applicant then told her she would demonstrate to her how sexual intercourse was meant to feel, touched the principal complainant's clitoris and digitally penetrated the principal complainant's vagina.
7. The Crown rejects the suggestion by the applicant that context evidence could be led simply by the principal complainant giving evidence that her father had been molesting her since she was five years' old. Given that the principal complainant's credibility is critical for the acceptance of that evidence, the suggestion by the applicant that evidence of the history of the sexual assaults by the co-accused would not be led in a separate trial against the applicant cannot be accepted.
8. Similarly, the conduct in count 70 (that the applicant told the complainant to use her tongue in order to make her father's penis erect and said "Is that what you do when Dad's penis isn't hard?") requires the history of the co-accused's sexual offences to be put in evidence in order to provide an explicable context for the alleged offence.
9. Again, evidence of the sexual offences by the father must be relevant and admissible to place in context the conduct alleged in count 29 (that the applicant explained and demonstrated to the principal complainant with her tongue how to make a penis erect).
10. Yet again, proof of counts 53, 54 and 57 (the December 2004 incident) which are related to counts against the co-accused (counts 50, 52 and 56), will require context evidence to render explicable the principal complainant's acquiescence and compliance with her parents' directions.
11. The Crown also points to count 126 (which charges the applicant with an act of concealing a serious indictable offence) proof of which it submits will require the totality of the evidence relating to the charge against the father, as well as evidence of the history of assaults by the father, to explain his conduct and his attempt to keep the principal complainant quiet.
12. The Crown submits that it is important to give the whole picture of the evidence so that the jury is not left with doubt as to the principal complainant's failure to complain of the abuse or question why the principal complainant remained at the home.
13. It is apparent from the above that the conclusions his Honour reached (to the effect that there would be a volume of evidence involving the father's conduct that would be admissible as context evidence in the mother's trial and that there would be a need for substantial repetition by the principal complainant of evidence as to the history of the sexual assaults if the trials were to be separated) were neither unfounded nor unreasonable.
14. It has not been demonstrated that his Honour acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, erred as to the facts, or failed to take into account any material considerations. Nor is the refusal to order separate trials unreasonable or plainly unjust in the sense that it bespeaks error of some such kind.
15. Insofar as reference is made as to the emotive description by the experienced trial judge of the alleged offences (his Honour describing them as atrocious) and it is suggested that one could not expect a jury not to be similarly affected, strong directions can and would be expected to be given to the jury so as to quarantine the counts of sexual violence (such as those given by Bell J when her Honour was then sitting in the Supreme Court in Darwiche v R [2011] NSWCCA 62). This may be a case where an appropriate course would be to sum up to the jury and have the jury deliberate first on the charges against the applicant before dealing separately with the charges against the co-accused. In any event, there is no error shown in relation to his Honour's conclusion that in this case the prejudice to the applicant occasioned by the joint trial is one that can be addressed by appropriate directions.

Conclusion

1. There was no objection to the extension of time for the filing of the application for leave to appeal. Such leave should be granted. As the merits of the matter have been fully argued, the application for leave to appeal should be granted. No error on the part of Christie ADCJ in the exercise of his discretion has been demonstrated. The appeal should therefore be dismissed. The orders should be as follows: 1. Grant leave to extend the time for filing of the application for leave to appeal to 23 October 2014. 2. Leave to appeal is granted. 3. Appeal dismissed.
2. SIMPSON J: I agree with Ward JA.
3. DAVIES J: I agree with Ward JA.

Amendments 21 November 2016 - Publication restriction removed - judgment published DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2016