Hall v The Queen

Case [2021] SASCFC 16

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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Hall v The Queen [2021] SASCFC 16
Case
[2021] SASCFC 16
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by the appellant against his conviction for sexual offences. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Kelly and Doyle JJ. The primary dispute revolved around alleged errors made by the trial judge during the judge-alone trial, particularly concerning the admission and evaluation of evidence, and the refusal to allow the appellant to revoke his election for a judge-alone trial.

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

On 28 September 2020, a Judge of this Court granted permission to appeal on grounds 1, 3 and 4, and refused permission to appeal on grounds 7 and 8. His Honour referred grounds 2, 5 and 6 to this Court. Background At the time of the alleged offending, the appellant, a 34-year old man, was serving a life sentence for the murder of a woman, for which he was convicted in 2007. He had been in custody for approximately 11 and a half years and was transferred to Mount Gambier Prison from Port Augusta Prison on 21 March 2016. His eligibility for parole was not imminent. The complainant, at the time of the trial, was 45 years old. She has two children, aged 20 and 14, who she shares with her female partner of 20 years. In May 2013, the complainant was employed as a prison officer at Mount Gambier Prison. The intel officer at the prison was her superior, and the security manager, Mr Simon Ruwoldt. The complainant monitored the telephone calls of prisoners and was responsible for locating and removing contraband. The complainant’s evidence In early July 2017, the complainant made attempts to locate a USB, an item of contraband, within the prison. The USB was said to be possessed by a particular prisoner and allegedly contained child pornography. The complainant gave evidence that on the morning of 21 July 2017, she decided to go to the appellant’s cell, in order to speak with him about the whereabouts of the USB. She did not speak with Mr Ruwoldt about her plan, however she told Mr Phillip Gleed, the senior officer in charge of units in the general area, that she was going to speak with the appellant. Mr Gleed gave evidence confirming this. The complainant arrived at the appellant’s cell within the prison and spoke to the appellant from the doorway. She asked him whether they could talk and he said yes. The complainant then entered the cell and the appellant shut and locked the door behind her. The door could only be unlocked with a key. It was agreed at trial that upon entering the appellant’s cell, the complainant and the appellant discussed the USB. The complainant said that after this discussion took place, the appellant said, ‘I want to feel you. It has been 12 years’. The appellant pulled his pants partway down, exposing his erect penis. He then hugged the complainant and tried to kiss her, to which she responded by pushing him away with her shoulder and telling him to stop. The appellant told her to suck his penis, to which she replied ‘no’. He then grabbed her hair with his right hand and pushed her to her knees, saying ‘suck it’. He was masturbating with his left hand. The complainant said, ‘Please don’t come in my mouth’, before complying with the appellant’s demands and fellating him. At some stage, the appellant said he would not hurt her. He did not ejaculate. The appellant loosened his grip on the complainant and she stood up and asked him to stop. The appellant took the radio from the complainant’s belt and undid her trousers, pushing them to her knees. He pushed her onto the bed and attempted to insert his penis into the complainant’s vagina but failed to do so. He was masturbating his penis, but it was no longer erect. The appellant pushed the complainant’s top up to expose her left breast, which he sucked on for about five seconds. He then lifted the complainant’s right leg up, gripping her knee, and tried to put his penis inside her vagina again but failed to do so.

Evidence

Evidence Before The Court

In May 2013, the complainant was employed as a prison officer at Mount Gambier Prison. The intel officer at the prison was her superior, and the security manager, Mr Simon Ruwoldt. The complainant monitored the telephone calls of prisoners and was responsible for locating and removing contraband. The complainant’s evidence In early July 2017, the complainant made attempts to locate a USB, an item of contraband, within the prison. The USB was said to be possessed by a particular prisoner and allegedly contained child pornography. The complainant gave evidence that on the morning of 21 July 2017, she decided to go to the appellant’s cell, in order to speak with him about the whereabouts of the USB. She did not speak with Mr Ruwoldt about her plan, however she told Mr Phillip Gleed, the senior officer in charge of units in the general area, that she was going to speak with the appellant. Mr Gleed gave evidence confirming this. The complainant arrived at the appellant’s cell within the prison and spoke to the appellant from the doorway. She asked him whether they could talk and he said yes. The complainant then entered the cell and the appellant shut and locked the door behind her. The door could only be unlocked with a key. It was agreed at trial that upon entering the appellant’s cell, the complainant and the appellant discussed the USB. The complainant said that after this discussion took place, the appellant said, ‘I want to feel you. It has been 12 years’. The appellant pulled his pants partway down, exposing his erect penis. He then hugged the complainant and tried to kiss her, to which she responded by pushing him away with her shoulder and telling him to stop. The appellant told her to suck his penis, to which she replied ‘no’. He then grabbed her hair with his right hand and pushed her to her knees, saying ‘suck it’. He was masturbating with his left hand. The complainant said, ‘Please don’t come in my mouth’, before complying with the appellant’s demands and fellating him. At some stage, the appellant said he would not hurt her. He did not ejaculate. The appellant loosened his grip on the complainant and she stood up and asked him to stop. The appellant took the radio from the complainant’s belt and undid her trousers, pushing them to her knees. He pushed her onto the bed and attempted to insert his penis into the complainant’s vagina but failed to do so. He was masturbating his penis, but it was no longer erect. The appellant pushed the complainant’s top up to expose her left breast, which he sucked on for about five seconds. He then lifted the complainant’s right leg up, gripping her knee, and tried to put his penis inside her vagina again but failed to do so. The appellant turned himself around ‘into the 69 position’ and started licking the complainant’s vagina. He then put his fingers inside her vagina, causing her pain. The complainant told the appellant that he was hurting her and to stop, but he kept going.

Decision

Reasons for decision

I do not propose to deal with the complaint in ground 8, which was a complaint that the trial Judge placed excessive weight upon his evaluation of the complainant’s credit. As most of the argument in respect of this ground of appeal traversed the same complaints that were made in relation to the previous grounds 3 to 6, which I have found that the appellant has made out, I do not consider it necessary to deal any further with the complaint in ground 8. Conclusion I would dismiss the appeal in respect of ground 1 and refuse permission to appeal on grounds 2 and 7. I would allow the appeal on grounds 3, 4, 5 and 6. DOYLE J: I have had the advantage of reading in draft the reasons of Kelly J. I gratefully adopt her Honour’s summary of the evidence at trial, and of the trial judge’s reasons.Ground 1: revocation of election for trial by judge alone In relation to ground of appeal 1, which complains that the trial judge erred in refusing the appellant permission to withdraw or revoke his election for trial by judge alone, I agree with Kelly J’s reasons for concluding that the appellant has not demonstrated any error on the part of the trial judge. The Court’s discretion under r 43(2) of the District Court Criminal Rules 2014 (SA) to grant permission to revoke an election to proceed by way of trial by judge alone is conditioned upon the Court’s satisfaction that “because of events occurring after the election, there are special reasons for so doing or that it would be unjust to refuse such permission.” While a change in the forensic landscape of a trial may, depending upon a consideration of all of the relevant circumstances in a given case, warrant a favourable exercise of the Court’s discretion, that will not always be so. Whether that is so in a particular case will require consideration of a range of matters, including the significance of the change, and the extent to which that change was a matter that might be said to be within the scope of potential forensic developments that the accused’s legal advisors might reasonably have contemplated. In the present case, the trial judge was entitled to take the view that the decision to seek permission to revoke the accused’s election was predominantly the product of a change in the accused’s legal advice (presumably as a result of his change in counsel) as to the risks the accused would run if evidence was led at trial as to the reasons for, and length of, his imprisonment. To the extent that the prosecution position in relation to the admissibility or use of this evidence changed or evolved at all after the accused made his election to proceed by way of trial by judge alone, it was not as though that change involved the prosecution seeking to rely upon an entirely new topic or body of evidence. Any change in the forensic landscape of the trial was not so fundamental as to have been entirely outside of the reasonable contemplation of the accused’s legal advisors at the time of the election.

Ratio Decidendi

Legal Principle Established

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