Groundstroem v R

Case [2013] NSWCCA 237

Court of Criminal Appeal

New South Wales
Case Title: GROUNDSTROEM, Christoffer Andreas v R
Medium Neutral Citation: [2013] NSWCCA 237
Hearing Date(s): 14 August 2013
Decision Date: 31 October 2013
Before: Macfarlan JA at [1]
Adams J at [2]
Button J at [67]
Decision:

1. Leave to appeal granted.
2. Appeal dismissed.
Catchwords: CRIMINAL LAW - appeal against conviction - sexual assault - historical sexual assault - husband rapes wife - issue of consent - delay in complaint - whether significant forensic disadvantage - lack of medical records of the complainant in documenting the complaint - admissions of husband to counsellor and the police - effect of delay rather than length important - directions - counsel must apply with details of forensic disadvantage alleged
Legislation Cited: Evidence Act 1995
Criminal Appeal Rules
Cases Cited: R v WSP [2005] NSWCCA 427
Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521; (2007) 82 ALJR 250
Texts Cited: Stephen Odgers, Uniform Evidence Law, 9th ed (2010) Thomson Reuters
Category: Principal judgment
Parties: Christoffer Andreas Groundstroem (Appellant)
Regina (Crown)
Representation
- Solicitors: Solicitors:
Nyman Gibson Stewart (Appellant)
Director of Public Prosecutions (Crown)
File Number(s): 2010/112633
Decision Under Appeal
- Court / Tribunal: District Court
- Before: DCJ O'Connor
- Date of Decision:  26 September 2011
- Court File Number(s): 2010/112633

JUDGMENT

  1. MACFARLAN JA: I agree with Adams J.

  2. ADAMS J:

    Introduction

  3. The appellant was charged with four counts of aggravated sexual assault (described as representative) of his then wife, the complainant, between 1 March 1992 and 31 December 1992, 1 June 1992 and 30 April 1993 (two offences) and 1 April 2003 and 30 April 2003. The alleged circumstance of aggravation was that, at the time of the assault, the appellant maliciously inflicted actual bodily harm on the complainant (in respect of the first assault, bruising and the others, internal injuries causing bleeding). In respect of each of the four counts, the appellant was convicted on 26 September 2011 of the statutory alternative of sexual assault. He was sentenced to an overall term of imprisonment of 7 years and 6 months with a non-parole period of 5 years commencing 26 September 2011. There is only one ground of appeal, namely that the learned trial judge erred in failing to inform the jury of the significant forensic disadvantage suffered by the appellant as a consequence of delay.

    The nature of the case

  4. It is necessary, in order to appreciate how the complaint of the appellant arises, to briefly summarise the Crown and defence cases.

    The complainant's evidence

  5. The complainant and the appellant met in 1986 when the former was 16 and the latter 17 and then in high school in Finland. The appellant left Finland and came to Australia, where his parents and sister were living but was unable to find work and returned to Finland in 1987 or 1988. On 5 May 1989 the complainant and the appellant married and their son Nicholas was born in Finland on 31 July…

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Groundstroem v R [2013] NSWCCA 237
Case
[2013] NSWCCA 237
Decision Date

CaseChat Overview and Summary

In the case of Groundstroem v R, the appellant contested his conviction for sexually assaulting his wife, who was also the mother of his child. The central legal issues revolved around the definition and evidence of consent, the impact of a significant delay in reporting the assaults, and the admissibility of certain forensic evidence. The High Court of Australia was tasked with examining whether the trial judge had adequately considered the implications of the delay in reporting the assaults and whether the appellant faced a significant forensic disadvantage due to this delay.

The court meticulously reviewed the evidence presented, including the complainant's testimony about her experiences of non-consensual sexual acts by her husband, and the lack of medical records documenting her complaints. It also considered the appellant's admissions to a counsellor and the police, which provided context to the events in question. The court emphasised that the effect of the delay, rather than its length, was crucial in assessing whether the appellant's right to a fair trial was compromised. The court further noted that the trial judge should have been more proactive in directing counsel to address the potential forensic disadvantages arising from the delay.

Ultimately, the High Court determined that while some of the issues raised were significant, they could not be considered on appeal as they were not raised in the lower court. The court held that leave to appeal was granted, but the appeal was dismissed due to the procedural oversights in the lower court proceedings. This decision underscored the importance of timely and thorough consideration of forensic evidence in sexual assault cases, particularly when there is a significant delay in reporting.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is necessary, in order to appreciate how the complaint of the appellant arises, to briefly summarise the Crown and defence cases. The complainant's evidence The complainant and the appellant met in 1986 when the former was 16 and the latter 17 and then in high school in Finland. The appellant left Finland and came to Australia, where his parents and sister were living but was unable to find work and returned to Finland in 1987 or 1988. On 5 May 1989 the complainant and the appellant married and their son Nicholas was born in Finland on 31 July 1990. The family moved to Australia in October 1991 when Nicholas was about 18 months old. The complainant's knowledge of English was poor when she arrived, although the appellant's English was fluent as he had been to school in Australia. The assault comprising the first count involved forcible, non-consensual vaginal intercourse in the bedroom of their home, shortly after the couple moved into a unit at Collaroy. On the following day the complainant noticed bruising to the inside of her thighs, around her vagina and the pubic bone and on her wrists and upper arms. She told the appellant that he had raped her, to which he replied, "I'm sure it happens in marriages, it's just not talked about". A few days later, the appellant saw the bruises on the inside of the complainant's legs and said that he did not think that he was "that rough". The complainant did not make any complaint about this attack as she knew no one in Australia and had very little knowledge of English. The appellant, shortly after obtaining work at a sex shop, started demanding sex when he came home and kept harassing the complainant until she gave in. She said that this resulted in many arguments. Their sexual intimacy changed. The appellant brought home pornographic magazines and videos and began to insist on sexual experimentation with some of which the complainant was not comfortable. After a time, the appellant raised the subject of anal sex with the complainant, attempting to persuade her to try it. The complainant did not wish to but, feeling pressured by the appellant, tried it and hated it, complaining that it was disgusting and hurt. She told him she did not want to try it again. The assault giving rise to count 2 occurred a couple of months after the first rape. It commenced as consensual sex but the appellant then withdrew and attempted to insert his penis into the complainant's anus. The complainant ineffectually resisted, asking him to stop because it "hurts so much", but the appellant did not do so until after he had ejaculated. He then left the bedroom. The complainant went to the bathroom and noticed semen and blood coming from her anus. She asked the appellant what could she do, that she needed to go to the doctor as she might need stitches. The appellant simply responded, "It was your own fault because you didn't relax". The bleeding continued for several days, gradually reducing. The complainant did not go to a doctor.

Decision

Reasons for decision

So far as the additional matters contended on the appeal as amounting to significant forensic disadvantage are concerned, it is necessary to obtain leave to rely on them at this stage: r 4 of the Criminal Appeal Rules. Were the question not governed by s 165B(2) and (5), these matters, or at least some of them, were of sufficient moment to have been required to be the subject of a warning, even though no direction was sought in respect of them and I would have granted leave to raise them on the appeal. However, since they were not raised below and, hence, could not have been the subject of directions, leave must be refused. Conclusion I propose that leave to appeal be granted and the appeal be dismissed. BUTTON J: I agree with Adams J.**********

Ratio Decidendi

Legal Principle Established

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