DWLB v The Queen (No 2) - [2019] SASCFC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
DWLB v THE QUEEN (No 2)
[2019] SASCFC 123
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Hinton)
11 October 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE
Appeal against conviction.
The applicant, DB, and his domestic partner, CB, were jointly convicted of six counts of unlawful sexual intercourse with a person under 14 years of age. The complainant is CB's biological daughter.
Each of CB and DB raised separate grounds of appeal. All grounds were considered and determined in R v B, DWL; R v B, CG [2019] SASCFC 101. CB's appeal was allowed and a retrial ordered with respect to all six charges. However, the ground of appeal on which CB succeeded (essentially, the failure of a witness, AB, to give evidence) was not available to DB and none of the grounds of appeal then raised by DB was made out. The Court refrained from dismissing DB's appeal and invited him to apply for permission to amend his notice of appeal to raise a ground of appeal cognate with that on which CB succeeded. The parties provided written submissions with respect to DB's new proposed ground of appeal.
Held per Nicholson and Hinton JJ (Kelly J agreeing) dismissing DB's appeal:
1. Neither the absence of evidence from AB nor the circumstances giving rise to CB's successful appeal resulted in a miscarriage of justice in the trial of DB.
2. Insofar as is necessary, DB is granted permission to amend his notice of appeal to include the fourth ground.
3. DB is granted permission to appeal.
4. However, none of DB's grounds of appeal have been made out.
Evidence Act 1929 (SA) s 21, referred to.
R v B, DWL; R v B, CG [2019] SASCFC 101; Ratten v The Queen (1974) 131 CLR 510; Nudd v The Queen (2006) 80 ALJR 614, discussed.

DWLB v THE QUEEN (No 2)
[2019] SASCFC 123
Court of Criminal Appeal: Kelly, Nicholson & Hinton JJ

KELLY J: I agree with the orders proposed by Nicholson and Hinton JJ for the reasons they have given.
NICHOLSON AND HINTON JJ.
Introduction
These reasons concern the appeal by DB and should be read in conjunction with the principal decision and reasons delivered in R v B, DWL; R v B,CG.[1]
[1] [2019] SASCFC 101.
In the principal decision, this Court allowed an appeal by DB’s domestic partner, CB. CB and DB had been jointly charged with six counts of unlawful sexual intercourse with a person under 14 years of age. The complainant was CB’s daughter from an earlier relationship. The prosecution case was that CB and DB engaged in a joint criminal enterprise to commit all six offences. For…

Grounds of appeal

[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.

Keep reading for free

Create a free CaseChat account to read DWLB v The Queen (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] SASCFC 123
Decision Date: 11 October 2019

CaseChat Overview and Summary

This case concerned an appeal by DWLB (the applicant) against his conviction for sexual offences. The applicant contended that a material irregularity occurred during his trial, and that this irregularity resulted in a miscarriage of justice. The appeal was heard by Kelly, Nicholson and Hinton JJ.

The central legal issue was whether the applicant's trial was rendered irregular and resulted in a miscarriage of justice due to the decision not to call a particular witness, AB, to give evidence. The applicant argued that the failure to call AB, whose potential evidence was expected to be confirmatory of an "unnatural relationship" between the applicant and the complainant, constituted a material irregularity. The respondent contended that counsel for the applicant made a positive forensic decision to seek AB's release from giving evidence, and that the absence of AB's testimony did not create an irregularity or miscarriage of justice, particularly as AB's evidence, if accepted, would have strengthened the prosecution's case against the applicant.

The Court found that counsel for the applicant had made a rational forensic decision to support AB's application to be released from giving evidence. Counsel had candidly stated a preference for AB not to give evidence, and later submitted that AB's potential evidence was "not compelling and is, from my perspective, prejudicial or potentially prejudicial." The Court reasoned that if AB had given evidence consistent with his statement, it could have led the jury to infer that the applicant was in the complainant's bedroom with another person, and that their activities required concealment. The applicant's defence relied on challenging the complainant's credibility, and there was no independent evidence to prove the offending. The Court concluded that by foregoing AB's evidence, the applicant's counsel may have sacrificed the possibility of acquittal on some counts in favour of seeking acquittal on all counts. Applying the principles that a criminal trial is an adversarial proceeding where parties determine the grounds of contest and evidence to be adduced, the Court held that no unfairness arose in holding the applicant to the case run at trial, and therefore, no miscarriage of justice had occurred.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON AND HINTON JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON AND HINTON JJ

The respondent’s contentions included the following.(i)There was no material irregularity in the conduct of the trial as far as DB was concerned. The potential evidence expected from CB’s son, AB, was confirmatory of an “unnatural relationship” between DB and the complainant.(ii)Counsel for DB made a positive forensic decision to invite the trial Judge to grant the application under s 21 of the Evidence Act 1929 to release AB from the obligation to give evidence.(iii)The failure by CB to call AB in her defence case had “the practical effect of giving DB exactly the trial he wanted”; the absence of AB as a witness did not give rise to a material irregularity in DB’s trial.(iv)Nor has a miscarriage of justice been demonstrated insofar as DB is concerned where the evidence of AB, if accepted, would only have strengthened the case against DB.Consideration Prior to the trial Judge taking evidence from AB as part of his application under s 21 of the Evidence Act 1929 (SA), counsel for DB candidly stated that she was “quite happy that [AB] is not potentially going to give some evidence”. After AB gave evidence on the application counsel for DB made submissions in support of AB’s application. In the course of those submissions counsel referred to the evidence AB could give as part of the prosecution case as “not compelling and is, from my perspective, prejudicial or potentially prejudicial”. Counsel’s decision was the product of a rational forensic decision. If AB gave evidence consistent with his statement, it was open to the jury to infer that DB was in the sisters’ bedroom with CB and whatever they were doing required that steps be taken to prevent others seeing and hearing. DB did not give evidence. His defence was that the complainant could not be accepted as credible and reliable. There was no evidence independent of the complainant capable of proving that the offending occurred. In her address counsel for DB rhetorically asked:Where is the evidence that in some way Mr [DB] was interested sexually in [the complainant]? Where is the evidence that makes it likely that he engaged or would be prepared to engage in this type of act? That submission would not have been made had AB given evidence. Had AB given evidence it might have been the case that the jury doubted the complainant’s reliability in relation to those counts subject of the first occasion, but AB’s evidence could only bolster the complainant’s credibility as to the uncharged acts and the second occasion. DB, it may be said, chose to forego the possibility of acquittal on some counts in favour of an approach that might have delivered acquittals on all counts. As we have said, counsel’s decision to support AB’s application was the product of a rational forensic decision. No unfairness can arise in holding DB to the case he ran at trial. In our view, no miscarriage of justice has occurred. It must be remembered, as Barwick CJ and Gleeson CJ both emphasised in Ratten v The Queen[3] and Nudd v The Queen[4] respectively, that a criminal trial is an adversarial proceeding that does not involve an examination and assessment of all the evidence and information that exists, rather, the parties are free to decide the grounds on which they will contest the issue and the evidence to be adduced.[3] (1974) 131 CLR 510 at 517.[4] (2006) 80 ALJR 614 at [9].