SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
HALL v THE QUEEN
[2021] SASCFC 16
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Kelly and the Honourable Justice Doyle)
4 March 2021
CRIMINAL LAW - EVIDENCE
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
CRIMINAL LAW - EVIDENCE - COMPLAINTS - GENERALLY
The appellant (Mr Hall) appeals against a conviction for two counts of rape, contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA). The offences were committed against a female prison officer while the appellant was in custody at Mount Gambier Prison.
The appellant appeals against his conviction on eight grounds, namely that the trial judge erred:
1. in refusing the appellant permission to withdraw or revoke his election for trial by judge alone;
2. in reaching his verdict by finding that the prosecution case was that the complainant believed that the appellant had a history of violence towards women, and/or there was a sexual aspect to the murder;
3. in re-introducing the topic of the complainant’s sexual proclivity when he considered the defence hypothesis that the complainant had made a sexual advance towards the appellant;
4. in the context of considering the defence case, the trial judge erred in his discussion of “Plausibility of the accounts” when he found that the appellant had no notice of the complainant coming into his cell;
5. in finding that the evidence of the complainant’s conversation with her sister on 22 July 2017 was capable of demonstrating a complaint and, further, that it demonstrated consistency of account on her part;
6. in finding that the evidence of the complainant’s complaint to her sister on 22 July 2017 demonstrated consistency of conduct on her part, pursuant to s 34M(4)(a)(ii) of the Evidence Act 1929 (SA);
7. in finding there is “some slight support [for the complainant’s account] from the medical evidence”; and
8. in placing excessive weight upon his evaluation of the complainant’s credit, having regard to the issues in the trial.
Held, dismissing the appeal in respect of ground 1 and refusing permission to appeal in respect of grounds 2 and 7:
1. Per Kelly P (Kourakis CJ and Doyle J agreeing), the appellant has not demonstrated any error by the trial judge in the exercise of the discretion in r 43 of the District Court Criminal Rules 2014 (SA) to refuse the appellant permission to revoke his election for trial by judge alone.
2. Per Kelly P (Kourakis CJ and Doyle J agreeing), properly understood, the trial judge did not make a finding that the complainant believed there had been a sexual aspect to the murder of which the appellant had been convicted. Even if there was any latent misunderstanding on the trial judge’s part about the extent of the complainant’s knowledge about the nature of the violence for which the appellant was convicted, it was of…
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- AGLC
- Hall v The Queen [2021] SASCFC 16
- Case
- [2021] SASCFC 16
- Decision Date
CaseChat Overview and Summary
The legal issues before the Full Court included whether the trial judge erred in refusing the appellant permission to revoke his election for a trial by judge alone, pursuant to rule 43 of the District Court Criminal Rules 2014 (SA). The Court was also required to determine whether the trial judge made any errors in assessing the complainant's credibility and the consistency of her evidence, particularly in relation to her injuries, her sexual proclivity, and her complaint to her sister. Furthermore, the Court considered whether the trial judge's understanding of the defence case was adequate and whether any failure to specifically address certain aspects of the evidence might have resulted in a substantial miscarriage of justice.
The majority of the Court, comprising Kelly P and Doyle J (with Kourakis CJ agreeing), dismissed the appeal in respect of the revocation of the election for a judge-alone trial, finding that the appellant had not demonstrated any error by the trial judge in exercising discretion under rule 43. They also found no merit in challenges to the trial judge's assessment of the complainant's injuries and the consistency of her evidence. However, Kelly P, in dissent, would have allowed the appeal on several grounds, finding that the trial judge's failure to specifically address inconsistencies in the complainant's evidence, which went to her credibility, may have led to a substantial miscarriage of justice.
The Court ultimately dismissed the appeal in respect of grounds 1, 2, and 7, and refused permission to appeal on grounds 2 and 7. The appeal was allowed in respect of grounds 3, 4, 5, and 6, as per Kelly P's dissenting judgment.
Orders
Orders of the court
Held, dismissing the appeal in respect of ground 1 and refusing permission to appeal in respect of grounds 2 and 7:
1. Per Kelly P (Kourakis CJ and Doyle J agreeing), the appellant has not demonstrated any error by the trial judge in the exercise of the discretion in r 43 of the District Court Criminal Rules 2014 (SA) to refuse the appellant permission to revoke his election for trial by judge alone.
2. Per Kelly P (Kourakis CJ and Doyle J agreeing), properly understood, the trial judge did not make a finding that the complainant believed there had been a sexual aspect to the murder of which the appellant had been convicted. Even if there was any latent misunderstanding on the trial judge’s part about the extent of the complainant’s knowledge about the nature of the violence for which the appellant was convicted, it was of no moment.
3. Per Kelly P and Doyle J (Kourakis CJ agreeing), the “support” in the medical evidence to which the trial judge referred was from the evidence as to the complainant’s injuries to her knees. These injuries were not explained by the defence hypothesis.
Held per Doyle J (Kourakis CJ agreeing), dismissing the appeal in respect of grounds 3 and 4, and refusing permission to appeal in respect of grounds 5, 6 and 8:
1. The matters of which the appellant complains in respect of the trial judge’s consideration of the complainant’s sexual proclivity do not reveal any inadequacy in his Honour’s understanding of the defence case, or reasons for rejecting it.
2. Properly understood, it was the decision by the complainant (on the defence case) to initiate sexual contact that the trial judge suggested was likely spur of the moment, as opposed to the complainant’s decision to visit and speak to the appellant while he was alone. This conclusion was open to the trial judge, and based on reasons that were adequately identified and articulated.
3. The challenge to the complainant’s complaint to her sister on the basis that it did not demonstrate consistency of account on the part of the complainant is without merit. The alleged inconsistencies were adequately addressed by the trial judge.
4. It was open to the trial judge to reach the conclusion he did as to consistency of conduct in relation to the complaint evidence, and his Honour’s approach and reasoning in this regard was orthodox, adequately reasoned and sound.
5. The reasons given by the trial judge for accepting the complainant’s evidence as credible and reliable were adequately identified and explained.
Held per Kelly P (in dissent), allowing the appeal in respect of grounds 3, 4, 5 and 6:
6. The matters about which the appellant now complains were matters which went to the heart of the complainant’s credibility and reliability. The trial judge’s failure to specifically deal with those aspects of the evidence that were inconsistent with the prosecution case may have resulted in a substantial miscarriage of justice.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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