Boyle (a Pseudonym) v The Queen

Case [2022] SASCA 50

Supreme Court of South Australia

(Court of Appeal: Criminal)

BOYLE (A PSEUDONYM) v THE QUEEN

[2022] SASCA 50

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)

9 June 2022

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO COURT OF APPEAL

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES - GENERALLY

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT

CRIMINAL LAW - EVIDENCE - RES GESTAE - STATEMENTS

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES

The applicant, an Uber driver, was convicted of two counts of indecent assault. The offending occurred on two separate occasions, against two different and unrelated female passengers.

Trial was conducted in the Magistrates Court. Both complainants gave evidence that once the Uber vehicle had reached their respective destinations, the applicant pulled them towards him and touched them on the breast. The applicant appealed before a Single Judge of Appeal: all grounds of appeal were dismissed.

The applicant now seeks permission to appeal to the Court of Appeal on four grounds: that the Single Judge of Appeal erred in finding that the Magistrate's misuse of inadmissible complaint evidence did not enhance nor affect the Magistrate's assessment of the complainants' evidence, that the Single Judge of Appeal erred in failing to find that the Magistrates Court trial had miscarried due to the Magistrate's wrongful admission and use of, inadmissible out of court statements, that the Magistrate's reasons are inadequate and finally, that it was not open to the Magistrate to find the offences proved beyond reasonable doubt.

Held, by the Court, granting permission to appeal on Grounds 1 and 2 allowing the appeal on those grounds and remitting the matter to the Magistrates Court for hearing before a different Magistrate:

1.The Magistrate admitted inadmissible complaint evidence and used that evidence for an inadmissible hearsay purpose. The Single Judge of Appeal erred in finding that such erroneous admission and use of the complaint evidence by the Magistrate did not enhance nor affect his assessment of the evidence at trial.

2.The Magistrate's use of the fact and timing of an out of court statement to boost the credibility of the second complainant and reject part of the applicant's evidence was impermissible. The Single Judge of Appeal erred in failing to find that the trial has miscarried as a result.  

3.The Magistrate's reasons adequately dealt with the inconsistencies arising on the evidence.

4.Despite the inconsistencies, the evidence before the Magistrate was nevertheless capable of proving the offences to the requisite standard.

Criminal Law Consolidation Act 1935 (SA) s 56(1); Criminal Procedure Act 1921 (SA)…

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AGLC
Boyle (a Pseudonym) v The Queen [2022] NCE - RES GESTAE - STATEMENTSCRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARR 50
Case
[2022] SASCA 50
Decision Date

CaseChat Overview and Summary

The applicant, Boyle (a pseudonym), appealed to the Court of Appeal of South Australia against convictions for two offences. The appeal concerned the admissibility and use of complaint evidence and the adequacy of the Magistrate's reasons. The applicant argued that the Magistrate had misused inadmissible complaint evidence, that the trial had miscarried due to the wrongful admission or use of out-of-court statements, that the Magistrate's reasons were inadequate, and that the evidence did not prove the offences beyond reasonable doubt.

The central legal issues before the Court of Appeal involved the interpretation and application of section 34M of the *Evidence Act 1929* (SA), which governs complaint evidence in sexual offence cases. Specifically, the court had to determine whether the Magistrate had correctly applied the principles regarding the admissibility of initial complaints and their elaborations, and whether the Magistrate had improperly used complaint evidence as proof of the truth of the allegations or to support findings of distress. The court also considered the extent to which an appellate court should interfere with a trial judge's findings of fact, particularly where those findings are based on the credibility of witnesses.

The Court of Appeal found that the Magistrate had erred in his treatment of complaint evidence. It clarified that section 34M of the *Evidence Act* abolishes the common law rule regarding recent complaints and establishes a statutory regime. The court noted that the Magistrate appeared to have misunderstood the concept of "elaboration" of a complaint, conflating it with "extrapolation," which is not a permissible concept under the Act. Furthermore, the Magistrate had improperly used the content of the complaint to support findings of distress and the truthfulness of the complainant's account, despite acknowledging that complaint evidence is not admitted for its truth. The court emphasised that while complaint evidence can be admitted to inform the jury how an allegation came to light and as evidence of consistency of conduct, it cannot be used as evidence of the truth of what was alleged. The Magistrate's reliance on an "extensive" complaint, which was arguably inadmissible elaboration, and his use of it to support findings of distress and the complainant's honesty, constituted a misuse of the evidence.

The Court of Appeal concluded that the Magistrate's errors in admitting and using complaint evidence, and his inadequate reasoning in relation to inconsistencies in the complainants' evidence, amounted to a miscarriage of justice. The court allowed the appeal, quashed the convictions, and ordered a new trial.

Orders

Orders of the court

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Background

Background to the litigation

The applicant now seeks to appeal the convictions to the Court of Appeal on three of the eight original grounds of appeal. The question of permission to appeal was referred to the Court of Appeal on all grounds. At the close of submissions on appeal, the applicant was granted permission to file a further ground of appeal. Thus, the applicant agitates four grounds of appeal as follows:1.the Single Judge erred in finding that the Magistrate’s misuse of inadmissible complaint evidence did not enhance nor affect the Magistrate’s assessment of the evidence of the complainants;2.the Single Judge erred in failing to find that the Magistrates Court trial miscarried because of the wrongful admission of, or use by the Magistrate, of irrelevant and/ or inadmissible out of court statements;3.the Magistrate’s reasons are inadequate more generally, having particular regard to the Magistrate’s failure to address and resolve numerous conflicts in the evidence and other shortcomings in the accounts of TW and LT; and4.on an independent review of the evidence, but mindful of the advantage the Magistrate had in seeing the witnesses give evidence, it was not open to the Magistrate to find the offences proved beyond reasonable doubt.Background The Magistrate found the applicant guilty on both counts. He gave lengthy reasons for his decision and the rulings he made on the evidence. The Magistrate found that the prosecution proved beyond reasonable doubt that both TW and LT were giving truthful and accurate evidence, and he disbelieved, even as reasonably possibly true, the version given by the applicant. He found that the evidence, which he accepted beyond reasonable doubt, clearly made out both charges. In the course of his reasons, the Magistrate dealt with the complaint evidence relating to both charges. The main issues on this appeal relate to the Magistrate’s rulings on, and the use he made of, the evidence of complaint, as well as his discussion and reasoning in relation to the topic of the alleged inconsistencies in the evidence of both complainants. In order to deal with the grounds of appeal from the Single Judge, it is necessary to consider the manner in which the Magistrate dealt with the evidence of complaint.First charge The first alleged indecent assault occurred in the early hours of 9 January 2017. Through the Uber application (“Uber app”) on her mobile phone, TW booked an Uber vehicle to collect her and TA from their location in Hindley Street, Adelaide. The Uber vehicle, driven by the applicant in the course of his employment as an Uber driver, arrived to collect TW and TA. An agreement was made that TW would pay the applicant $60 cash for the ride, instead of paying through her Uber app; the booking was subsequently cancelled. TW sat in the front passenger seat of the vehicle; TA sat in the rear passenger seat. Their destination was a residence in Hackham West. TW gave evidence that during the journey, the applicant stopped the car because TA was smoking. The applicant asked TA for $20, assumed to be a penalty for smoking in his car. The applicant gave evidence that he stopped the car twice: the first time in response to TA asking him if he wanted to have a “happy time”, the second time in relation to the smoking incident. TW denied the former occasion.

Evidence

Evidence Before The Court

While the operation of s 34M of the Evidence Act 1929 (SA) (“the Act”) has been considered by this Court in many cases, the issues raised on this appeal require the fundamental principles of complaint evidence to be revisited. Section 34M provides:34M—Evidence relating to complaint in sexual cases(1) This section abolishes the common law relating to recent complaint in sexual cases.Note—See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427(2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.(3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.Examples—Evidence may be given by any person about—• when the complaint was made and to whom;• the content of the complaint;• how the complaint was solicited;• why the complaint was made to a particular person at a particular time;• why the alleged victim did not make the complaint at an earlier time.(4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—(a) it is admitted—(i)to inform the jury as to how the allegation first came to light; and(ii)as evidence of the degree of consistency of conduct of the alleged victim; and(b) it is not admitted as evidence of the truth of what was alleged; and(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.(5) It is not necessary that a particular form of words be used in giving the direction under subsection (4). (6) In this section— complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise); initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). Section 34M(1) of the Act abolished the common law in relation to evidence of complaint and replaced it with a statutory regime. The approach to the admissibility of complaint evidence has been discussed in depth in recent cases.[2] In R v Jones (“Jones”) the Court observed:[3]In R v P, S, this Court highlighted the importance of counsel considering the admissibility of complaint evidence before the empanelment of the jury. Nicholson and Lovell JJ (with whom Parker J agreed), in summarising the general principles relating to complaint evidence, said: Section 34M(3) is directed to the making of an initial complaint. The question of whether evidence can be admitted as an “initial complaint” depends on a close examination of the facts involved. It is fundamental to the determination of admissibility to ascertain to whom the complainant spoke, when the conversation occurred and, as precisely as possible, what was said during the conversation.Once the content of the conversation is ascertained an assessment must be made as to whether what was said is referrable to a charge on the Information. Complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referrable to such an offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. It need only be referrable in a general way as it would be “unrealistic to expect victims of sexual offences to make a complaint with a high degree of specificity”. However, what was said must encompass generally the conduct alleged in a particular count. In rare cases, it may not be necessary for the complaint to be accompanied by or include a description of the offending, provided that, on the relevant facts, the complaint can be understood as being referable to only the conduct charged.Section 34M(6) contemplates that an “elaboration” of an initial complaint may be admissible. In order to determine whether there has been an elaboration the content of the initial complaint must first be identified. Any “elaboration” of the initial complaint must be sufficiently connected with the initial complaint so that the whole can reasonably be viewed as one complaint. Further, an elaboration of the initial complaint will only be received if it is capable of rationally affecting the assessment of the credibility of the complainant.(citations omitted)[2] For example, R v S, DD (2010) 109 SASR 46, R v Maiolo (No 2) (2013) 117 SASR 1, R v Maiolo (No 3) [2014] SASCFC 89, R v Place (2015) 124 SASR 467; R v Jones [2018] SASCFC 80; R v Van Wyk (2018) 132 SASR 46.[3] [2018] SASCFC 80 at [75].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Ms Ballans, the prosecutor at trial, did argue that the further contact with Uber could be regarded as an elaboration of the initial complaint. She did not use the expression extrapolation. Section 34M of the Act does not allow an extrapolation of an initial complaint. Extrapolation and elaboration are not synonyms. It is unclear what the Magistrate meant by his use of the term “extrapolation”. In relation to Count 2, the Magistrate stated:… Uber records identify that the complaint was received from L.T.’s phone at 3.34 a.m. on 19 February 2017 to the effect of ‘my driver groped me’.L.T. identified that the complaint was made on her behalf by her then boyfriend D.C. and she subsequently gave an extrapolation of the complaint to a staff member of Uber at 10.54 a.m. on 19 February 2017 …(emphasis added) Again, the Magistrate appears to have considered that an extrapolation of the initial complaint is admissible. There are other problems with the manner in which the Magistrate has dealt with the complaint evidence. The Magistrate acknowledged, correctly, in his reasons, and on more than one occasion, that complaint evidence is not admitted as to the truth of the contents of the complaint. However, when dealing with the question of distress, the Magistrate stated:… I am satisfied that in respect to the first complainant, the evidence of T.A. is highly corroborative of the fact that T.W. was genuinely distressed. I accept she was distressed because the defendant had touched her inappropriately. I accept the account she gave to T.A. was an honest account of what had occurred. A complaint was made immediately and the complaint to Uber immediately and followed through with a more extensive complaint within 18 or so hours of the event occurring. She also reports the matter to police contemporaneously with the events. (emphasis added) Two issues arise from these remarks. First, it is unclear what the Magistrate meant when he said that TW gave to TA “an honest account of what had occurred”. In context, it is arguable that the Magistrate, although using the word honest, has used the truth of the complaint to support his findings about distress. TA was relating to the Court the fact of the complaint which could be used to establish the consistency of TW’s conduct. To find that TW was honest in her account is to arguably use the truth of the complaint to support the question of distress. The complaint evidence could not be used in that manner to support the finding of distress. Secondly, the Magistrate has clearly given weight to the “more extensive complaint within 18 or so hours”. There was barely, if any, elaboration of the initial complaint to Uber. The “extensive” nature of the complaint was inadmissible and the Magistrate could not use that evidence as he did. There is a further matter. The Magistrate made findings about the credibility of both complainants. In relation to Count 1, the Magistrate found that the evidence of TW was “truthful, accurate and reliable” and that “the defendant is patently untruthful and unreliable”. Those remarks are followed by findings of specific facts about what occurred. Indeed, the Magistrate made a finding that the applicant “took hold of T.W.’s upper chest and put a hand on her upper thigh near her groin. The hand on the upper chest moved down and brushed her breast”.