(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
15 September 2022
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE
CRIMINAL LAW - PROCEDURE - DISCLOSURE OBLIGATIONS
CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - NOTICE AND DISCLOSURE TO ACCUSED
The appellant was found guilty by jury of one count of maintaining an unlawful sexual relationship with a child. The defence case at trial was that the victim was lying as to the identity of her abuser.
Soon after the trial, the appellant’s lawyers were told by counsel for the Director for the first time that the appellant’s father had previously been charged with six counts of unlawful sexual intercourse with another girl. About a year before the appellant’s trial, the charges laid against his father were withdrawn.
The appellant appeals against his conviction, contending that the prosecution’s failure to make proper disclosure of the charges against his father denied him the opportunity to conduct his case differently, with the result that he was denied a fair trial, causing a miscarriage of justice.
Held (the Court) dismissing the appeal:
1.The prosecution failed to disclose material which might, as a reasonable possibility, have materially assisted the conduct of the defence case.
2.By no later than the defence opening, the undisclosed material was relevant to the defence case that it was reasonably possible that the appellant was not the offender. The duty to disclose arose because, at the least, the undisclosed and unused material may have assisted the appellant’s cross-examination of various witnesses at the trial on the topic of the identity of the offender.
3.However, had the prosecution disclosed the charges laid against the appellant’s father that would not have altered the forensic contest at trial. The appellant has not demonstrated that his trial might have been conducted differently.
4. The appellant has not been denied a fair trial and there has been no miscarriage of justice.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Brawn v The King [2022] SASCA 96
Case
[2022] SASCA 96
Decision Date
CaseChat Overview and Summary
The case of *Brawn v The King* concerned an appeal against a criminal conviction. The dispute arose from the appellant's assertion that a miscarriage of justice had occurred due to the prosecution's failure to disclose certain information to the defence. The appeal was heard by the Court.
The central legal issue before the Court was whether the prosecution's non-disclosure of charges laid against the appellant's father constituted a miscarriage of justice, thereby entitling the appellant to a new trial. This required the Court to consider the prosecution's disclosure obligations and whether the non-disclosure had prejudiced the appellant's defence and denied him a fair trial.
The Court reasoned that while the prosecution had a duty to disclose relevant information, the appellant had conceded that the non-disclosure did not prevent him from adducing admissible evidence regarding the charges against his father. Crucially, the Court found that the appellant had failed to demonstrate that his defence would have been conducted differently had this information been disclosed. Consequently, the Court concluded that the appellant had not been denied a fair trial and that no miscarriage of justice had occurred. The appeal was therefore dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
A further factual question was whether there was a mirror on the appellant’s wardrobe doors, another matter alleged by the victim. Finally, there was a question at trial as to whether the appellant attended the birthday party in the park for only a brief period near its conclusion, as it was being packed up.The affidavit evidence from the appellant The Court has before it two affidavits provided by the appellant’s solicitor. These showed that soon after the trial the then counsel for the prosecution disclosed to the appellant’s legal representatives the fact that the appellant’s father had been charged. Counsel for the prosecution expressed some surprise when the appellant’s representatives explained that this information had not previously been disclosed to them. The affidavit evidence also showed that the appellant knew that his father had been charged but that he had not disclosed this to his legal representatives because he did not then recognise the relevance of that information. The seven charges laid against the appellant’s father were also addressed. Six of the charges alleged unlawful sexual intercourse with the complainant and a seventh alleged an aggravated assault on her. The complainant and her brothers had been living with the appellant’s father in his home. Following a report made to the Department for Child Protection, the matter came to the attention of police during June 2019. The police “facts of charge” records that the complainant alleged that between 10 November 2018 and 24 May 2019, a six-month period, she was approached by the appellant’s father on six occasions and, whether in her bedroom or in his bedroom, he put his hands underneath her clothes, touched her breasts and either placed a finger inside her vagina or, on the last two of the six occasions, put his penis inside her. Soon after the complainant made her report, she was removed from the home. Police approached the appellant’s father during July 2019, and he declined to answer any questions. He was served with an intervention order prohibiting him from coming within 150 metres of the complainant. He was given police bail. The appellant’s father was charged on 29 July 2019 and committed for trial on 23 July 2020, but a “white paper” was signed and filed on 13 August 2020.[2] [2] A “white paper” or a “Certificate of Prosecution Declining to Prosecute” records that the matter was committed for trial but, before arraignment, the Director determined not to prosecute and no Information would be laid. See r 92.5 of the Joint Criminal Rules 2022 (SA) and s 122 of the Criminal Procedure Act 1921 (SA). It is not suggested that the solicitors in the Office of the Director of Public Prosecutions who instructed counsel at the trial of the appellant were aware that charges had been laid against the appellant’s father. How counsel for the prosecution came to learn of these charges against the appellant’s father remains unclear.The prosecution’s obligation to make disclosure
Decision
Reasons for decision
The appellant has conceded that, notwithstanding non-disclosure, he has not been denied the opportunity to adduce admissible evidence that the appellant’s father engaged in the offending with which he was charged. Having regard to the way in which the forensic contest was framed at trial, it must be concluded that the appellant has failed to demonstrate that his defence would have been conducted differently and, on that account, been denied a fair trial. Conclusion In circumstances where the appellant cannot demonstrate that his trial might have been conducted differently had the charges against his father been disclosed by the prosecution, he has not been denied a fair trial and there has been no miscarriage of justice. The appeal should be dismissed.