De Sa v The Queen

Case [2021] SASCFC 22

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Leave to Appeal)

DE SA v THE QUEEN

[2021] SASCFC 22

Judgment of The Court of Criminal Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Peek and the Honourable Justice Blue)

13 April 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - GENERAL PRINCIPLES

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

The appellant was convicted after a trial by a Judge alone in the District Court of one count of aggravated communicating with the intention of procuring a child for sexual activity and two counts of aggravated indecent assault.  

The appellant appeals against the convictions on the following grounds:

1.The fair trial of the appellant miscarried as a result of errors by the Judge in fact finding and the application of the burden and standard of proof.

2.The Judge erred in finding the applicant was not under a significant forensic disadvantage.

3.The Judge erred in failing to provide adequate reasons for her decision.

4.The verdicts are unreasonable and cannot be supported having regard to the evidence.

Held by the Court (dismissing the appeal):

1.The trial Judge did not make the asserted errors in fact finding or the application of the burden and standard of proof (at [46], [59], [79], [90], [102] and [103]).

2.The trial Judge did not err in assessing forensic disadvantage (at [117]).

3.The Judge did not fail to provide adequate reasons for her decision (at [133]).

4.The verdicts are not unreasonable or incapable of being supported having regard to the evidence (at [150]).

5.Permission to appeal granted. Appeal dismissed (at [151]).

Evidence Act 1929 (SA) ss 34 CB and 34M, referred to.
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; Ashby v Slipper (2014) 219 FCR 322; R v Sierke [2011] SASCFC 53; R v MAS (2013) 118 SASR 160; Davis and Hyland v R (Supreme Court of South Australia, Doyle CJ, Prior and Debelle JJ, 8 September 1995); R v T, WA (2014) 118 SASR 382; JGS v The Queen [2020] SASCFC 48; DL v The Queen (2018) 266 CLR 1; M v The Queen (1994) 181 CLR 487, considered.

DE SA v THE QUEEN
[2021] SASCFC 22

Court of Criminal Appeal:  Kourakis CJ, Peek and Blue JJ

  1. THE COURT:  The appellant, Miguel De Sa, was convicted after a trial by a Judge alone in the District Court of one count of aggravated communicating with the intention of procuring a child for sexual activity[1]  and two counts of aggravated indecent assault.[2]   

    [1]     Criminal Law Consolidation Act 1935 (SA) section 63B(3)(a).

    [2]     Criminal Law Consolidation Act 1935 (SA) section 56.

  2. The appellant appeals against the convictions on the following grounds:

    1.The fair trial of the appellant miscarried as a result of errors by the Judge in fact finding and the application of the burden and…

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De SA v The Queen [2021] SASCFC 22
Case
[2021] SASCFC 22
Decision Date

CaseChat Overview and Summary

The appellant, De Sa, appealed against convictions recorded on a guilty plea. The appeal concerned alleged errors by the trial judge in fact-finding, the application of the burden and standard of proof, assessing forensic disadvantage, and providing adequate reasons for her decision. The Full Court of the Supreme Court of South Australia was required to determine whether these alleged errors constituted a miscarriage of justice.

The court considered several grounds of appeal. Firstly, it examined whether the trial judge erred in fact-finding or in applying the burden and standard of proof, particularly in relation to the evidence of Constable Holmes and the existence of a particular text message. Secondly, the court assessed whether the trial judge erred in concluding that the appellant was not under a significant forensic disadvantage due to the delay between the alleged offending and the trial, as contemplated by section 34CB of the *Evidence Act 1929* (SA). Finally, the court reviewed whether the trial judge provided adequate reasons for her decision and whether the verdicts were unreasonable or incapable of being supported by the evidence.

The court reasoned that the trial judge did not err in her fact-finding or in applying the burden and standard of proof, accepting the complainant's and her mother's evidence regarding the text message despite Constable Holmes's lack of recollection. The judge's assessment of Constable Holmes's inexperience and the deficiencies in the police investigation were found to be valid considerations. Furthermore, the court found no error in the assessment of forensic disadvantage, agreeing with the trial judge that the lapse of time had not resulted in a *significant* disadvantage to the appellant, and that the judge had properly taken into account the deficiencies in the investigation when considering whether the prosecution had proved its case. The court also concluded that the trial judge provided adequate reasons and that the verdicts were not unreasonable.

Permission to appeal was granted, but the appeal was ultimately dismissed.

Orders

Orders of the court

Held by the Court (dismissing the appeal):

1. The trial Judge did not make the asserted errors in fact finding or the application of the burden and standard of proof (at [46], [59], [79], [90], [102] and [103]).

2. The trial Judge did not err in assessing forensic disadvantage (at [117]).

3. The Judge did not fail to provide adequate reasons for her decision (at [133]).

4. The verdicts are not unreasonable or incapable of being supported having regard to the evidence (at [150]).

5. Permission to appeal granted. Appeal dismissed (at [151]).

Background

Background to the litigation

The appellant appeals against the convictions on the following grounds:1.The fair trial of the appellant miscarried as a result of errors by the Judge in fact finding and the application of the burden and standard of proof.[3] 2.The Judge erred in finding the applicant was not under a significant forensic disadvantage.[4]3.The Judge erred in failing to provide adequate reasons for her decision.[5]4.The verdicts are unreasonable and cannot be supported having regard to the evidence.[6][3] Five particulars are provided of this ground of appeal. Permission to appeal was granted by a single Judge in respect of one particular relating to risk of contamination and permission in respect of the balance was referred to the Full Court.[4] Permission to appeal referred by a single Judge to the Full Court.[5] Permission to appeal granted by a single judge in respect of risk of contamination and permission in respect of the balance of this ground referred to the Full Court.[6] Permission to appeal referred by a single Judge to the Full Court. This ground is expressed as that the verdict is “unreasonable, unsafe and against the weight of the evidence”. This Court has consistently identified that this articulation does not reflect the wording of section 158(1)(a) of the Criminal Procedure Act 1921 (SA) and assumes an unnecessary and inappropriate burden on behalf of an appellant: see for example R v Quist [2017] SASCFC 37, (2017) 127 SASR 471 at [11] per Peek J and most recently (in the context of an appeal under the Magistrates Court Act 1991 (SA)) Dixon v Police [2021] SASC 24 at [6]-[8] per Peek J.Background In 2016 the appellant was a director of a company that operated a café in a shopping centre in a country town. Immediately next to the café was a storeroom. Both the café and storeroom had a frontage onto a ground level car park of the shopping centre. The company leased the café and storeroom for the café business. The shopping centre also had an underground car park. In the underground car park was a coolroom. The café business used the coolroom for storing foodstuffs and other items required to be kept cool. The coolroom was accessed via a shopping centre lift near the cafe giving access to the underground car park. The café business was established in March 2016. The café was initially open for breakfast and lunch. From September 2016 it was also open for dinner on Thursdays to Sundays and its opening hours on those days were from 8 am to 9 pm. The appellant was the manager of the café business. He physically worked in the café. In November 2016 he was 25 years old. In 2016 the complainant was 16 years old and was in year 11 at high school. In August 2016 she commenced work as a waitress on a casual basis at the café. She generally worked one or two shifts per week. Her shifts were generally during the daytime after school or on the weekend. On Saturday 12 November 2016 the complainant was rostered to work the dinner shift starting at 5 pm. At 3.50 pm the appellant sent a text message to her saying:Because its night time can you wear a dress or something more formal. There was then the following exchange of text messages:Complainant: It’s a bit windy for a dress. Appellant: You are not working outside Appellant: But yeah it’s a bit cold for a dress.

Evidence

Evidence Before The Court

The appellant provides four particulars of this ground of appeal, although those particulars might be seen as grounds in their own right. The appellant provides a fifth particular which is that, by reason of the first four particulars, the Judge failed to correctly apply the onus and standard of proof. We address each of the first four particulars sequentially, followed by a holistic consideration of this ground of appeal (incorporating the fifth particular).Rejecting or failing to take into account uncontested evidence by Constable Holmes The first particular is that the fair trial miscarried as a result of the Judge rejecting the evidence of Constable Holmes or failing to take it into account as not having been negatived as a reasonable possibility where it was not contested. Constable Holmes gave evidence that she graduated from the police academy in September 2014. In November 2016 she was stationed at the country town. She did not make notes of her interview of the complainant but typed a statement by the complainant in the presence of the complainant’s mother. During the interview, the complainant showed Constable Holmes her mobile phone with text messages on it. Constable Holmes read the messages. She did not take a photograph of them and could not explain why. However, she did copy the text messages extracted at [8] and [24] above word for word into the typed statement.[8] Constable Holmes was not asked, in evidence in chief or cross-examination, about any text message relating to Victoria’s Secret or lingerie.[8] The source of the text messages at [8] and [24] above is the statement typed by Constable Holmes on 14 November 2016. The messages themselves had been deleted by the complainant from her phone. The complainant and her mother each gave evidence of the existence and content of “the Victoria’s Secret message”. Each gave evidence that Constable Holmes was shown that text message on 14 November 2016. The complainant gave evidence that she deleted the text messages between the appellant and herself after not having heard from the police for a long time after she reported the matter to them. The Judge accepted the evidence of the complainant and her mother concerning the existence of the Victoria’s Secret message despite the evidence of Constable Holmes. The Judge observed that Constable Holmes was inexperienced; made no notes of her contact with the complainant and her mother; permitted the complainant’s mother to be present for at least part of the interview of the complainant; took no photographs of the text messages; and apparently did not progress the investigation until the matter was assigned to a detective in February 2018. In this respect, the Judge accepted the criticisms of the police investigation by defence counsel. The Judge concluded:… however, the absence of evidence from Constable Holmes about the text message does not cause me to doubt AB or her mother. AB’s mother said she ‘100% read that one’. I believe her.

Decision

Reasons for decision

The fifth particular is not established.Conclusion on first ground of appeal The first ground of appeal is not established.Forensic disadvantage The second ground of appeal is that the trial Judge erred in finding the applicant was not under a significant forensic disadvantage. Section 34CB of the Evidence Act 1929 (SA) provides:34CB—Direction relating to delay where defendant forensically disadvantaged(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.…(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—(a)explain to the jury the nature of the forensic disadvantage; and(b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.(3)An explanation or direction under subsection (2) may not take the form of a warning and—(a)must be specific to the circumstances of the particular case; and(b)must not include the phrase "dangerous or unsafe to convict" or similar words or phrases. The appellant contends that the Judge ought to have found that the time elapsed between the alleged offending and the trial had resulted in a “significant forensic disadvantage” to him and to have given herself a direction as required by subsections 34CB(2) and (3). The Judge said:I accept Mr Caldicott’s criticisms of the police investigation. It is for the prosecution to prove the case. If the prosecution fails to do that to the extent that doubt remains, then the accused must receive the benefit of that doubt. This police investigation was less than perfect. It was deficient. …Mr Caldicott submitted the accused had suffered a forensic disadvantage as a result of the missing items/evidence. I do not consider the lapse of time of approximately four years has resulted in a significant disadvantage to the accused[19]. There was a delayed and deficient police investigation. I have taken into account the potential of the police to have obtained evidence in considering whether the prosecution has proved its case beyond reasonable doubt, bearing in mind the prosecution has that onus and the accused has no onus of proof. In all the circumstances, I do not consider any forensic disadvantage to be significant.[19] Evidence Act 1929, section 34CA Applicability of section 34CB Subsections (2) and (3) impose an obligation on a trial judge to give directions to a jury if the precondition of “significant forensic disadvantage” is met. In general, the purpose of directions to a jury requiring consideration of specific matters is that judges are aware from their experience, but juries may not be aware, of the need to give consideration to those specific matters.[20] [20] R v T, WA [2014] SASCFC 3, (2014) 118 SASR 382 at [21]-[22] per Kourakis CJ.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.