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 each of counts 1 and 4 the actus reus (digital penetration) was alleged to have been committed by CB and for each of the other four counts (two acts of digital penetration and two acts of penile-vaginal intercourse) the actus reus was alleged to have been committed by DB.
CB’s son, AB, had been subpoenaed to give evidence in the prosecution case. He made a successful application pursuant to s 21 of the Evidence Act 1929 (SA) to be relieved from the obligation to give evidence. In the principal judgment, this Court set aside all six convictions against CB and ordered a retrial on the ground that the absence of evidence from AB gave rise to a miscarriage of justice in CB’s case. However, the ground of appeal relied on by CB was not available to DB. In the circumstances, as explained in the principal judgment,[2] the Court refrained from finalising DB’s appeal and allowed time within which DB might raise an additional ground of appeal.
Had AB’s evidence been available, the jury would have had to consider the apparent inconsistency between AB’s account and that of the complainant concerning the involvement of CB at the time of the “first occasion” in determining whether the complainant was truthful and reliable such that it could accept that the offending by CB occurred as described by the complainant.
I am left with the conclusion that if the jury had heard AB’s evidence and had accepted as a reasonable possibility that it was reliable in the critical respects, a finding beyond reasonable doubt as to the complainant’s credit and reliability with respect to her evidence against CB, at least concerning the first occasion, would have been under direct challenge. This is essentially a jury question and one with respect to which there would be no room for the proviso to operate in the circumstances of this case.
I appreciate that my reasoning has strayed outside the strict confines of the grounds of appeal 1(a) and 1(b). However, the evidentiary basis for the contention that there has been a miscarriage of justice and the question of whether CB was entitled to call AB notwithstanding his exemption from giving evidence for the prosecution were argued during the appeal, as was the ambit of subsection 21(7).
I would allow CB’s appeal, set aside the convictions and order a retrial with respect to all six counts. Whilst AB’s evidence, if adduced, would only be directly material to counts 1 to 3 said to have taken place on the first occasion, any successful challenge to the complainant’s credibility and/or reliability with respect to the first occasion would have implications for the jury’s consideration of her credibility and reliability with respect to the second occasion.
A retrial is appropriate given that the miscarriage of justice I have found could be rectified by the calling of AB as a witness in the retrial. If AB is again subpoenaed by the prosecution, a section 21 application may or may not be made. If it is made, it may or may not be allowed according to the circumstances then before the trial court. If allowed, CB would have the right to subpoena AB in her case. Whilst the cross-examiner’s advantage would thus pass from CB to the prosecution, this would not necessarily, in the circumstances, suggest a miscarriage of justice. If for any reason notwithstanding the best efforts of the prosecution and the defence, AB were to be unavailable for the retrial, any question of whether or not his absence, simpliciter, would give rise to a miscarriage of justice at the second trial would need to be decided afresh. The burden of my reasons on this ground is that there has been a miscarriage of justice because of the absence of AB’s evidence in circumstances where he was available and could have been called by the defence but was not, through no attributable fault.
The question arises as to what implications, if any, the absence of AB’s evidence and the setting aside of all of CB’s convictions might have for DB’s appeal and bearing in mind that the absence of AB’s evidence has not been raised by any of DB’s grounds of appeal. Counts 1 and 4 were charged against DB based on his engaging in a joint criminal enterprise with CB who was found at trial to have committed the actus reus for those two counts. Should her convictions be set aside, it is difficult to see how DB’s convictions for counts 1 and 4 can stand. At a more general level, if AB’s evidence might cause a jury to doubt the reliability of the complainant’s evidence as to CB’s involvement in both the first and second occasions, the question arises as to whether a jury might find the complainant’s evidence to be unreliable at a more general level, that is, including insofar as DB’s involvement is concerned.
For these reasons, when delivering reasons for judgment in this matter, I would make the orders I have indicated with respect to CB’s appeal. However, I would refrain from finally determining DB’s appeal until both he and the prosecution have had an opportunity to consider these reasons. I would allow a short period of time within which DB is to file any supplementary ground of appeal, if so advised, and within which DB and the prosecution are to file a written submission addressing any such further ground.
[2] R v B, DWL; R v B,CG [2019] SASCFC 101 at [86]-[92].
DB’s supplementary ground of appeal and the parties’ respective submissions
DB’s supplementary ground of appeal is in the following terms.
The guilty verdicts should be set aside on the ground that error resulting in a miscarriage of justice has occurred in the unusual circumstances of this case by the failure of counsel to call AB to give evidence during the trial, following the LTJ’s decision to grant a s 21 application exempting AB from giving evidence against the accused and in circumstances where he was available and could have been called but was not through no attributable fault.
The appellant in his written submission in support of this ground summarised the conclusion arrived at in the paragraphs of the principal judgment set out above and contended that because the prosecution case against both accused was brought on a joint criminal enterprise basis with respect to all counts, “CB’s case is inextricably linked with the case of DB”. As such, “fairness dictates that the outcome for CB’s appeal also apply to DB’s case”.
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].
Respectfully, nothing can be made of the fact that, in relation to those offences where CB, the complainant’s mother, performed the actus reus, DB could only be convicted if the jury were satisfied that the mother and DB acted together as part of a joint criminal enterprise. On the admissible evidence in DB’s trial, such evidence not including AB’s evidence, there was evidence capable of supporting a verdict that the mother and DB were engaged in a joint enterprise. DB got the trial he wanted. That the evidence in the mother’s future trial may be different reflects the nature of the adversarial system.
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. None of DB’s grounds of appeal have been made out.[5] We would grant DB permission, insofar as is necessary, to amend his notice of appeal to include the fourth ground; grant permission to appeal but dismiss the appeal.
[5] For all other grounds relied on by DB see the principal reasons, R v B, DWL; R v B, CG [2019] SASCFC 101.