Bristow v The Queen

Case [2020] SASCFC 91

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

BRISTOW v THE QUEEN

[2020] SASCFC 91

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Bleby)

17 September 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE

CRIMINAL LAW - EVIDENCE - HEARSAY - PARTICULAR MATTERS - OTHER STATEMENTS

CRIMINAL LAW - EVIDENCE - RES GESTAE - STATEMENTS - PARTICULAR CASES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION

Appeal against conviction of one count of aggravated kidnapping, two counts of rape, two counts of indecent assault and one count of attempted rape.

The appellant is the owner of a small farming property (the farm). The appellant testified that he utilised Gumtree in about December 2016, seeking a farmhand to work on the farm, which he falsely stated was in Lameroo.  The complainant, DA, saw his message and responded to it.  DA was born in Belgium and was backpacking in Australia. The appellant and DA corresponded online and exchanged details.  On 9 February 2017, DA took a bus from Adelaide to Murray Bridge. The appellant introduced himself as ‘Max’ or ‘Mark’ and drove DA to the farm.

DA gave evidence that shortly after she was taken to her sleeping quarters, a shed on the farm, the appellant overpowered her and bound her using cable ties and chains.  He held an object to her back which he claimed was a gun.  DA testified that she was sexually assaulted, held overnight and sexually assaulted again on the following day.  During the night, DA managed to extricate herself from her chains and sent emails and Facebook messages to friends, the Police Association, the recruitment division of South Australia Police and tour companies with whom she had booked her travel.  In those communications DA called for police assistance, complained that she had been kidnapped and explained that she had managed to loosen her chains.  After noticing intense police activity on the following day, the appellant dropped DA off in Murray Bridge where she was spotted by police in a distressed state. On the way to Murray Bridge, the appellant dropped DA off outside a home, then returned in a different car. The prosecution case was that the appellant’s conduct was an attempt to evade detection.

Police later searched the farm and found DA’s mobile phone in a water tank, cable ties in a bin, chains at the bottom of a well near the shed and a toy gun in a paddock.  They saw that bales of hay and a chicken coop had been placed over the couch on which DA had slept.  Forensic analysis later identified the appellant’s DNA profile on DA’s bra, and DA’s DNA profile on the cable ties found in a bin, and a swab taken from under the appellant’s fingernails.

Prior to DA arriving…

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Details
AGLC
Bristow v The Queen [2020] SASCFC 91
Case
[2020] SASCFC 91
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Nicholson and Bleby JJ, heard an appeal by Mr Bristow against his conviction for offences including kidnapping and sexual assault. The dispute centred on the admissibility and use of certain evidence, particularly online communications and searches made by the complainant, DA, after her alleged ordeal.

The legal issues before the Court included whether the prosecutor’s address to the jury, in which he presented DA’s online activity as corroboration of her testimony, constituted a miscarriage of justice. Specifically, the Court considered whether the jury might have placed undue weight on this evidence, and whether a failure to direct the jury to be cautious about the possibility of concoction of this evidence amounted to a misdirection or non-direction that occasioned a substantial miscarriage of justice. The Court also considered the application of the *res gestae* principle to certain statements made by DA.

The Court reasoned that while the prosecutor’s submissions regarding the corroborative value of DA’s online activity were broad, the central issue at trial was the credibility of DA’s account. Given that the defence’s case involved an assertion that DA had fabricated the entire series of events, the jury would have understood that if DA’s account was concocted, then her online activity would also have been part of that fabrication. Therefore, the Court concluded that the failure to provide a specific warning about the possibility of concoction did not give rise to a miscarriage of justice, as the jury was already alive to the central question of fabrication. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I elaborate on my reasons below.DA’s evidence On 9 February 2017, DA took the bus from Adelaide to Murray Bridge, and waited for Mr Bristow outside the Murray Bridge Visitor Centre. She had with her a big suitcase, a backpack, and a laptop and a wi-fi dongle in a separate bag. DA noticed Mr Bristow walk past her when she first got off the bus but he did not approach her until she was alone. Mr Bristow introduced himself as Max or Mark and took her to a red pickup. The drive to the Bristow farm took a few hours and included two ferry crossings. DA did not notice any street signs or road names but recalled that access to the Bristow farm was taken over a track which the evidence showed was over the adjoining property of Mr McKay. On arrival at the Bristow farm, DA was taken to a shed away from the house. The shed was formerly a pigsty but was used by Mr Bristow to hold calves for a few days at a time when needed. A grid for cleaning purposes was built into the floor. DA testified that she and Mr Bristow talked on a couch in the shed which was to be her bed. It is variously described in the evidence as a couch, bed, futon and sofa. Mr Bristow asked her questions about allergies and drug use before asking to examine her feet, and upper and lower legs for any needle marks. DA complied, taking off her shoes and socks, and her pants, and then putting them back on. Mr Bristow then asked to check the soles of her feet. DA once again took off her shoes and socks and lay face down on the couch. Mr Bristow seized that opportunity to sit on her back and grab her arms. DA struggled until Mr Bristow placed an object against her back which he claimed was a gun. DA stopped struggling because she feared for her life. Mr Bristow then bound her hands behind her back with cables ties. He also put chains around each foot and attached them to the floor of the shed. Mr Bristow warned DA not to misbehave or runaway because he would shoot her. He also told her that there were dangerous snakes around the property. He tightened the chains around her feet with pliers. The detention which ensued was the subject of Count 6. DA did not testify that Mr Bristow used any form of handcuff to detain her. After he had secured DA in that way, Mr Bristow moved DA into a sitting position, pushed items of her clothing aside and touched her breasts. That conduct was the subject of Count 7. Mr Bristow then unchained DA’s feet and removed some clothing before re‑applying the chain. Mr Bristow then digitally raped her. That conduct was the subject of Count 8. Mr Bristow removed everything from DA’s pockets. He asked her to switch off her phone before taking it with him. He also took DA’s suitcase but left the backpack and laptop case in the shed. According to DA, Mr Bristow chained one of her hands to a wall. DA testified that after securing her in that way, Mr Bristow left her in the shed alone overnight. At trial, the defence relied on the absence of any apparent fixing point on the wall for a chain to challenge DA’s credibility.

Decision

Reasons for decision

I would dismiss Ground 6.Conclusion I would dismiss the appeal. NICHOLSON J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice. I gratefully adopt his Honour’s comprehensive analysis of the res gestae (integral narrative) authorities. I wish to add just one minor observation concerning appeal ground 1. I agree that in the circumstances of this case it is difficult to see to what impermissible use the content of the emails and the online searches might possibly have been put. I also have no concern, in the circumstances of this matter, that there is an appreciable risk that the jury might have placed undue weight on this content in favour of the prosecution, particularly given that only the kidnapping allegation and none of the sexual offence allegations is referred to. It is potentially of concern that the jury was not directed to be cautious as to the possibility of concoction. However, it was apparent throughout the trial including the addresses and the summing up that the central issue was whether the prosecution had excluded as a reasonable possibility that DA had made up a series of lies designed to inculpate a wholly innocent person. It could not have escaped the jury that to acknowledge such a reasonable possibility necessarily meant that the email and search content had also been concocted. For this reason and those given by the Chief Justice the failure to warn about possible concoction did not give rise to a miscarriage of justice. BLEBY J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.

Ratio Decidendi

Legal Principle Established

Dr Donnelly said that if the chains had caused an abrasive injury to DA, it was likely that DNA material would be left on them, but whether that DNA material could be usefully recovered was another question. He could not say whether the DNA material matching DA’s profile found under Mr Bristow’s fingernails were vaginal in origin or from touching or scratching another part of her body. The prosecutor’s address – the online messages left as corroboration The prosecutor commenced that part of his address in which he recounted DA’s evidence in this way:So with that said I now turn to remind you of [DA’s] evidence in the case and as I do so I will remind you of some, probably most, of the independent evidence that entirely supports, that corroborates, what [DA] has told you.(Emphasis added) In the ensuing summary of DA’s evidence the prosecutor referred to items of independent evidence which supported her account of:·communications with Mr Bristow in response to her Gumtree advertisement;·meeting him in Murray Bridge;·the nature of their conversation on the drive back to the Bristow farm; and ·to the sexual assaults that afternoon. When dealing with the assaults, the prosecutor referred to the independent evidence of Dr Dayman and the finding of the chains and cable ties. The prosecutor then turned to DA’s online activity after she had freed herself. The prosecutor read out extracts from the Facebook messages and emails sent by DA. He referred to DA’s online searches for the SAPOL Facebook page. The prosecutor also mentioned DA’s search for the ‘my current location.net’ site and the Google Maps webpage. The prosecutor then said:So what do you have, ladies and gentlemen, you have [DA] telling you jumped on her computer, she sent messages to friends and she searched for her location and for police. What do you have in the independent evidence? Those Facebook messages, those emails she told you about, those Google searches of her trying to find her location. Yet again further evidence, further support for exactly what [DA] told you about, honest and reliable.But not only does the evidence corroborate [DA's] account to you, not only does she say ‘This is what I was doing’, and we can see independently of her that’s what she was doing, you might think that the fact that [DA] has sent those messages in the first place, the mere fact she is sending out those messages to her friends is evidence of her distress at the time. Again, further evidence of her account, further support for her account.… The first sentence of the second paragraph is a submission that the hard copy print out of the electronic record of DA’s online activity supports her testimony that she made the searches and sent the messages she described. However, it hardly appears necessary to call that documentary evidence in aid as corroboration of DA’s testimony when it proves, in itself, the online activity it discloses and there was no challenge to that evidence. Importantly, the last sentence of both paragraphs goes further and suggests a broader use as corroboration of DA’s account of Mr Bristow’s offending. The jury, who never had the advantage of reading the transcript of counsel’s submissions in order to better understand the point being made, are likely to have understood the prosecutor to be submitting that the sending, and contents, of the emails, supported DA’s account of the offending.