R v LIDDY No. SCCRM-01-162 [2002] SASC 19 - SASC 2002 case summary — Zoe

SASASC

R v LIDDY No. SCCRM-01-162 [2002] SASC 19

[2002] SASC 19

Supreme Court of SA|2002-01-31

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Source facts

Court

Supreme Court of SA

Decision date

2002-01-31

Catchwords

and Materials Considered

Source

Original judgment source is linked above.

Catchwords

and Materials Considered

Judgment (699 paragraphs)

[1]

This matter was considered in Ludlow v Metropolitan Police Commissioner [1971] AC 29 in the context of rule 3 of Schedule 1 of the Indictments Act 1915 (UK) which is in almost identical terms to s 278(1). The appellant had been charged on one indictment with attempted larceny in respect of events on 20th August 1968 at hotel premises and robbery with violence on 5th September 1968 at different hotel premises. It was held that the two charges could be properly joined having been committed in neighbouring public houses within a comparatively short time and were a series of offences of a similar character. Lord Pearson, with whom the other members of the House of Lords agreed, said that for there to be a series of offences of a similar character, there had to be some nexus between the offences. He went on to say that "[n]exus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series". He approved of the decision in Reg v Kray [1969] 3 WLR 831 where the Court of Appeal held, at 836, that the nexus is "established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases". He also cited with approval the decision of Lord Goddard CJ in Rex v Clayton-Wright [1948] 2 All ER 763 that there was a nexus between offences of setting fire to a yacht to defraud underwriters and obtaining money by false pretences by pretending that a mink coat had been stolen from a motor car because both charges were charges of swindling underwriters. In Ludlow, Lord Pearson held that there was sufficient nexus between the two offences because they were similar in law and fact.

[111]

"Counsel for the appellant submitted that the jury should have been directed along the lines proposed by Dunford J in R v RAT [2000] NSW CCA 77, 24 March 2000, although no such direction was sought at the trial. It will often be the case that, acting reasonably, a jury which considers that a witness is or might be dishonest in respect of some of his or her evidence cannot be satisfied of his or her honesty in respect of any other part. Accordingly, if the case depends upon the jury accepting the witness' evidence as true beyond reasonable doubt in any particular respect, it might well be that a reasonable doubt about honesty as to any matter will mean that the jury should have a reasonable doubt about the crucial evidence. However, situations can vary widely and this will not always be the case. Much will depend on the nature of the jury's conclusion as to the witness' honesty: a doubt is one thing, a determination that the witness has lied is another. Accordingly, I do not think that a jury should be necessarily be instructed that a doubt about a witness' honesty as to part of his or her evidence must cast a doubt about their honesty as to the important part or parts. I do not consider, with every respect to Dunford J, that the evidence of a complainant in a sexual assault case should be treated any differently from that of any other witness whose evidence is essential to proof of the charge. There will, however, be some cases where a decision that a witness is lying or even of doubtful veracity might so affect their evidence as render necessary a strong direction concerning the consequences of an adverse finding as to credibility. Similar considerations affect the evaluation of the reliability of a witness' evidence. I cannot see anything in the judgments of their Honours in Jones v The Queen (1997) 191 CLR 439 which justifies a more rigid approach. Dunford J also suggested that juries should be warned that different verdicts where there is no material difference between the applicable evidence 'are liable to be regarded as a compromise and the guilty verdicts set aside'. Whilst I entirely agree that juries should, in appropriate cases, be warned in strong terms against compromise, I do not think, with respect, that the possible result of a potential appeal is an appropriate matter for the jury to consider."

[310]

"In general, as a minimum requirement, it is necessary that there be sufficient particularity in the allegations to demonstrate one identifiable transaction which meets the description of the offence charged, distinguishable from any other similar incidents suggested by the evidence. I cannot see how there can be a trial in the absence of that degree of particularity. Of course, this requirement does not exclude multiple charges of substantially similar events, provided the evidence demonstrates separate, identifiable transactions which can be related to counts in the indictment. I do not imply that this minimal standard will always be sufficient. The nature of the offences in question and the circumstances of the complainant will be relevant in determining the extent to which further particulars should be required. In cases of the present kind it will, for instance, often be difficult for a very young complainant to give particulars of dates although, as this case demonstrates, particulars of place may not be so difficult. A specified period may be sufficient, although the longer the period, the less satisfactory is the degree of particularity so offered. The age of the complainant at the time of the alleged offence and at the time of trial may affect any decision as to the adequacy of the particulars. I mean by this only that a court will be more easily convinced that the Crown cannot further particularize a count where the complainant is a young child than in other cases. However the ultimate question will be whether the particulars are reasonably sufficient for the purposes of the administration of justice and for the accused to make a proper defence. The less satisfactory the particulars, the more important will be an adequate direction as to the difficulties created for the accused in answering the charges and the need for care in scrutinizing the Crown case. As with so many other aspects of a criminal trial, the adequacy of particulars is very much a matter of judgment."

[571]

"The test I think is whether the evidence of the single witnesses as a whole-although each of them speaks to a different charge - leads by necessary inference to the establishment of some circumstance or state of fact underlying and connecting the several charges, which, if it had been independently established, would have afforded corroboration of the evidence given by the single witnesses in support of the separate charges. If such a circumstance or state of fact was actually established by independent evidence, it would not occur to anyone to doubt that it might be properly used to corroborate the evidence of each single witness. The case is the same, when such a circumstance is established by an inference necessarily arising on the evidence of the single witnesses, as a whole. The only difference is that the drawing of such an inference is apt to be a much more difficult and delicate affair than the consideration of independent evidence. No merely superficial connexion in time, character, and circumstance between the repeated acts - important as these factors are - will satisfy the test I have endeavoured to formulate. Before the evidence of single credible witnesses to separate acts can provide material for mutual corroboration, the connexion between the separate acts (indicated by their external relation in time, character, or circumstance) must be such as to exhibit them as subordinates in some particular and ascertained unity of intent, project, campaign, or adventure, which lies beyond or behind - but is related to - the separate acts. The existence of such an underlying unity, comprehending and governing the separate acts, provides the necessary connecting link between them, and becomes a circumstance in which corroboration of the evidence of the single witnesses in support of the separate acts may be found - whether the existence of such underlying unity is established by independent evidence, or by necessary inference from the evidence of the single witnesses themselves, regarded as a whole."

Parties

Applicant/Plaintiff:

# R

Respondent/Defendant:

LIDDY No. SCCRM-01-162 \[2002\] SASC 19

Legislation Cited (6)

Criminal Law Consolidation Act 1935ss 75, 76A, 278, 351(1), referred

Criminal Appeal Act 1907

Indictments Act 1915

Criminal Law Consolidation Act 1935ss 75, 76A, 278, 351(1), referred

Criminal Appeal Act 1907

Indictments Act 1915

Cases Cited (79)

R v LIDDY No. SCCRM-01-162 [2002] SASC 19 (31 January 2002)

Criminal Law Consolidation Act 1935 ss 75, 76A, 278, 351(1), referred to.

R v Armstrong (1990) 54 SASR 207;

Pfennig v The Queen [1995] HCA 7; (1994-1995) 182 CLR 461;

Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292;

Boardman v Director of Public Prosecutions [1975] AC 421;

Sutton v The Queen [1984] HCA 5; (1983-1984) 152 CLR 528;

Reg v Kilbourne [1973] AC 729;

KRM v The Queen [2001] HCA 11;

B v The Queen [1992] HCA 68; (1992) 175 CLR 599;

R v Carne (1997) 94 ACrimR 249;

R v Nieterink (1999) 76 SASR 56;

R v Beserick (1993) 30 NSWLR 510;

DPP v P [1991] 2 AC 447;

BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275;

Ludlow v Metropolitan Police Commissioner [1971] AC 29;

De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1;

R v Barrell & Wilson (1979) 69 CrAppR 250;

MacKenzie v The Queen (1996) 190 CLR 348;

Regina v James [1999] NSWCCA 191;

R v Stone (unreported, CCA (Eng), 13 December 1954);

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316;

Prasad v The Queen [1994] HCA 2; (1994) 68 ALJR 194;

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79;

R v KET [1998] VSCA 73;

The Queen v Prasad (1979) 23 SASR 161;

Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207;

Crampton v R [2000] HCA 60; (2000) 176 ALR 369;

R v Dolan [1992] SASC 3638; (1992) 58 SASR 501;

R v T [1999] SASC 242; (1999) 74 SASR 486;

Rex v Watt (1905) 20 Cox CC 852;

R v Flanigan (1997) 190 LSJS 499;

R v Dossi (1918) 13 CrAppR 158;

The Queen v Pfitzner (1976) 15 SASR 171;

G v R (unreported, SA CCA, S5019, 4th April 1995);

R v McDonald (1995) 65 SASR 322;

Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467;

Regina v VHP (unreported, NSW CCA, 60733 of 1996, 7th July 1997);

S v The Queen [1989] HCA 66; (1989) 168 CLR 266;

R v S (1992) 58 SASR 523;

The Queen v Pinder (1989) 155 LSJS 65;

The Queen v Johnson (1979) 22 SASR 161;

Hartley v R (unreported, SA CCA, S4754, 6th September 1994);

M v The Queen [1994] HCA 63; (1994) 181 CLR 487, applied.

Smith v The Queen [2001] HCA 50;

The Queen v Riley [1997] QCA No 109 of 1997;

Dick v The Queen [2001] WASCA 152;

R v Inder (1977) 67 CrAppR 143;

The Queen v Etherington (1983) 32 SASR 230;

R v Garrett (1988) 50 SASR 392;

Gipp v The Queen (1998) 194 CLR 106;

Perry v The Queen (1982) 150 CLR 580;

R v Kirkman (1987) 44 SASR 591;

Jones v The Queen (1997) 191 CLR 439;

R v Finch (1916) 12 CrAppR 77;

The King v Dean [1932] NZLR 753;

R v RAT [2000] NSW CCA 77;

R v Robinson [2000] NSWCCA 59; (2000) 111 ACrimR 388;

Regina v ARD [2000] NSW CCA 443;

R v KWG [2000] SASC 398;

Regina v Markuleski [2001] NSW CCA 290;

R v Murre [2001] NSW CCA 286;

Regina v Hingst [1999] NSW CCA 333;

R v D [2001] QCA 256;

R v Rogers [1998] QCA 83;

Harris v The Queen (1990) 55 SASR 321;

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193;

Zoneff v The Queen (2000) 200 CLR 234;

R v Dat Tran Nguyen [2001] VSCA;

Reg v Lucas [1981] QB 720;

McDermott v The Queen (1987) 45 SASR 335;

R v Jacobs (1993) 2 QdR 541;

R v H (1995) 184 LSJS 68;

R v Baker; Ex Parte Attorney-General (Qld) [2001] QCA 59;

The Queen v Bilick and Starke (1984) 36 SASR 321;

R v Ayles [1993] SASC 3987; (1993) 66 ACrimR 302;

R v Smith & Ors [2000] 1 All ER 263;

R v Anderson (1991) 53 ACrimR 421;

Haw Tua Tau v Public Prosecutor [1981] 3 WLR 395, considered.

Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367;

Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292;

KRM v R (2001) 178 ALR 385;

Reg v Kilbourne [1973] AC 724;

R v Sims [1946] KB 531;

Smith v The Queen [2001] HCA 50; (2001) 181 ALR 354;

Harriman v The Queen [1989] HCA 50; (1988-89) 167 CLR 590;

Pfennig v The Queen [1995] HCA 7; (1994-95) 182 CLR 461;

Gipp v The Queen (1998) 194 CLR 106;

R v Hissey (1971) 6 SASR 280;

R v Nieterink (1999-2000) 76 SASR 56;

R v Boardman [1975] AC 421;

The judgments in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 provide the necessary guidance when considering cross-admissibility and I refer to them in extenso. Mason CJ, Wilson and Gaudron JJ, in a well known passage of their joint judgment, describe the permissible use of this type of evidence. They said, at 294-295:

Where, as here, an accused person disputes the happenings which are said to bear a sufficient similarity to each other as to make evidence on one happening admissible in proof of the others, similar fact evidence bears a different complexion for the issue is whether the acts which are said to be similar occurred at all. In such a case the evidence has variously been said to be relevant to negative innocent association (R v Sims [1946] KB 531) or as corroboration (Reg v Kilbourne [1973] AC 729, at pp749, 751, 758) but the better view would seem to be that it is relevant to prove the commission of the disputed acts: see Boardman at p452, per Lord Hailsham and Lord Cross p458; Sutton at pp556-557, per Deane J. Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well-known passage in the speech of Lord Wilberforce in Boardman at p444:

"In assessing the probative force of evidence of similar facts, a judge must keep in mind the issue to which the evidence is relevant. How does the evidence tend to prove that issue? In cases of the present kind, evidence of the commission by an adult male of indecent acts with a number of boys has sometimes been held admissible on a count charging him with an indecent act committed with a particular boy. The ground on which such evidence has been admitted has been variously identified: the evidence has been held to be relevant to show 'a system' (Reg v Kilbourne [1973] AC 729, at pp750-751; Boardman at p452; R v Jeffries [1946] NSWStRp 54; (1947) 47 SR(NSW) 284, at pp298, 308; Reg v Witham [1962] QdR 49, at p76; R v Sims [1946] KB, at p539) or to rebut a 'defence' of innocent association (Kilbourne at p741; cf Boardman at pp443, 458) or to confirm the truthfulness of the complainant's evidence in the particular case: Kilbourne at pp741, 748-749; Sims at p540. Thus in Kilbourne at pp748-749 Lord Hailsham of St Marylebone L.C. said:

Whichever ground has been assigned for admitting evidence of similar facts, the courts have denied that its probative force is to be found in the mere propensity of the accused to commit indecent acts with boys: see, inter alia, Thompson v The King [1918] AC 221, at p237; Boardman at pp438, 451, 461; Jeffries at p286; Witham at p76."

"Just as the duty to determine voluntariness arises when the circumstances of the case raise it as a real question (MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, at pp523, 634) a duty to determine whether similar fact evidence is to be accounted for by a cause common to the witnesses arises when the circumstances of the case raise it as a real question."

Before addressing the issue of common purpose or concoction, I mention observations in some other cases about the purposes of the evidence. In Boardman v Director of Public Prosecutions [1975] AC 421, Lord Wilberforce made the following observation, at 444, which was cited with approval by Brennan and Dawson JJ in Hoch at 300:

I do not think that the expression "striking similarity" is used as the basis of cross-admissibility in the same way as in Sutton v The Queen [1984] HCA 5; (1983-1984) 152 CLR 528 and Pfennig to prove that an accused is the person who committed known offences. Mention is also made of the passage of the judgment of Lord Hailsham of St Marylebone LC in Reg v Kilbourne [1973] AC 729 at 748-749 cited by Brennan and Dawson JJ in Hoch at 301.

The requirement that, to be admissible, the evidence of other conduct goes beyond showing a mere propensity or disposition to commit a crime is widely accepted: B v The Queen [1992] HCA 68; (1992) 175 CLR 599 per Dawson and Gaudron JJ at 617-618, KRM v The Queen [2001] HCA 11 per McHugh J at para 21.

"The additional relevance - or required probative value - may lie in a striking similarity between the previous offences and the offences in question such that they would all appear to be committed by the same person. In that event, evidence of the previous offences is correctly called similar fact evidence. But there are other circumstances, not necessarily involving similarity, in which evidence of the commission of previous offences may have the probative value required for its admission. The relevant circumstances for present purposes occur when the evidence establishes a relationship which is not of an innocent character but points strongly to the commission of the offences in question (see Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590)."

The first question is whether the evidence is relevant and, if so, whether there is a rule which forbids reception of the evidence. As Gleeson CJ, Gaudron, Gummow, Hayne JJ pointed out in Smith v The Queen [2001] HCA 50 at para 7:

In Dick v The Queen [2001] WASCA 152 the Court of Criminal Appeal of the Supreme Court of Western Australia also had to consider the admissibility of similar fact evidence. The appellant had been charged with 20 counts of sexual offences, 14 counts against one boy and 6 counts against another boy. Evidence of the incidents relating to each count, along with evidence of uncharged acts, was permitted to be given at the trial. Murray J, with whom the other members of the Court agreed, held that whilst the evidence may have been admissible as relationship evidence involving incidents in respect of individual complainants, none of the evidence could be described as similar fact evidence because it did not have sufficient probative force to make it admissible as it lacked a sufficient degree of similarity. This is also a decision upon the facts of that case and it seems that the Court was not required to consider whether there was some other basis for admissibility other than similarity between the acts of sexual conduct.

In BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, the accused was a school teacher and was charged on six counts of homosexual intercourse with one of his pupils. This sexual activity and other sexual activity were alleged to have occurred at the school and at the home of H. A feature of H's allegations is that when masturbating or having anal intercourse the accused used a lubricant called KY jelly which he kept in a drawer next to his bed and he kept an old yellow towel under his bed for the purposes of cleaning up after masturbation. Another pupil, W, gave evidence at the trial of having masturbated in the accused's room at the school whilst the accused was behind a wall having said that he felt like masturbating as well. The accused told him that he kept a yellow towel under the bed to clean up after masturbation and he offered W some KY jelly which was beside the bed. It was held that W's evidence, if accepted, did show that the accused encouraged one of the boys to masturbate in his presence, on his bed, with KY jelly and the yellow towel and was admissible as it was strikingly similar to features of the evidence of H and could amount to corroboration of that evidence: per Brennan CJ at 283-285. Toohey J held that the evidence was not admissible as similar fact evidence or on any other grounds, 292. Gaudron J, at 298-299, reiterated the view expressed in Hoch and Pfennig that the probative value or cogency of evidence of an uncharged act may derive from its disclosure of strikingly similar acts, some unusual feature common to the events in question or some underlying unity, system or pattern. She went on to say at 299:

Lastly, I mention the observation of McHugh J in KRM v The Queen [2001] HCA 11. Having referred to the exclusionary rule regarding mere propensity evidence in Pfennig, he went on to say at para 24:

"In cases concerning sexual offences, evidence of uncharged acts between the accused and the complainant has long been admitted where it tends to explain the relationship of the parties or makes it more probable that the charged acts occurred (R v Ball [1911] AC 47; R v Gellin [1913] NSWStRp 22; (1913) 13 SR(NSW) 271; R v Etherington (1982) 32 SASR 230; B v The Queen [1992] HCA 68; (1992) 175 CLR 599 at 601-602, 608, 610, 618). Thus, evidence of uncharged acts may explain why, on the occasion or occasions charged, the complainant did not rebuff the accused or showed no distress or resentment. It may also tend to prove that the accused had an unnatural passion for the complainant and thus prove the motive for committing the crime charged (B v The Queen at 610)."

(1990) 54 SASR 207

(1988) 165 CLR 292

(1992) 175 CLR 599

(1999) 76 SASR 56

(1993) 30 NSWLR 510

(1997) 191 CLR 275

(1986) 61 ALJR 1

(1996) 190 CLR 348

(1998) 197 CLR 316

(1994) 68 ALJR 194

(1989) 168 CLR 79

(1979) 23 SASR 161

(1990) 171 CLR 207

(2000) 176 ALR 369

(1992) 58 SASR 501

(1999) 74 SASR 486

(1976) 15 SASR 171

(1995) 65 SASR 322

(1937) 59 CLR 467

(1989) 168 CLR 266

(1992) 58 SASR 523

(1979) 22 SASR 161

(1994) 181 CLR 487

(1983) 32 SASR 230

(1988) 50 SASR 392

(1998) 194 CLR 106

(1982) 150 CLR 580

(1987) 44 SASR 591

(1997) 191 CLR 439

(1990) 55 SASR 321

(1993) 178 CLR 193

(2000) 200 CLR 234

(1987) 45 SASR 335

(1993) 2 QdR 541

(1984) 36 SASR 321

(1937) 58 CLR 185

(1978) 20 ALR 513

(1977) 22 SASR 161

(1986) 43 SASR 258

(1936) 55 CLR 367

(2001) 178 ALR 385

(2001) 181 ALR 354

(1971) 6 SASR 280

(1997) 190 CLR 348

(1981) 147 CLR 512

(1989) 167 CLR 590

(1985) 182 CLR 461

(1995) 182 CLR 461

(1982) 33 SASR 230

(1982) 32 SASR 230

(1998) 71 SASR 543

(1973) 47 ALJR 603

(1988) 12 NSWLR 558

(1955) 92 CLR 654

(1962) 108 CLR 433

(1937) 57 CLR 170

(1974) 131 CLR 510

(1958) 99 CLR 346

(1963) 110 CLR 234

(1987) 163 CLR 454

(1984) 153 CLR 521

(1991) 171 CLR 432

R v LIDDY No. SCCRM-01-162 [2002] SASC 19

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (699 paragraphs)

The Rejection of the Defence of Innocent Association

Parties

Legislation Cited (6)

Cases Cited (79)

R v LIDDY No. SCCRM-01-162 [2002] SASC 19 (31 January 2002)