Hall v The Queen
[2021] SASCFC 16
•4 March 2021
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 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.
District Court Criminal Rules 2014 (SA) r 43; Criminal Law Consolidation Act 1935 (SA) ss 48, 285AB; Evidence Act 1929 (SA) s 34M, referred to.
House v The King (1936) 55 CLR 499; R v H, T (2010) 108 SASR 86; R v Hall [2020] SADC 102; DL v The Queen (2018) 266 CLR 1; McNamara v The Queen [2021] SASCFC 2, considered.
HALL v THE QUEEN
[2021] SASCFC 16
KOURAKIS CJ: I would dismiss the appeal for the reasons given by Doyle J.
KELLY J:
Introduction
The appellant, Mr James Hall, appeals to this Court against a conviction for two counts of rape, contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The offences were committed against a female prison officer, while the appellant was in custody at Mount Gambier Prison.
The grounds of appeal are as follows:
1.The trial Judge erred in refusing the appellant permission to withdraw or revoke his election for trial by judge alone.
2.The trial Judge erred 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.The trial Judge erred 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 Accounts’ when he found that the appellant had no notice of the complainant coming into his cell.
5.The trial Judge erred 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.The trial Judge erred 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 Act1929.
7.The trial Judge erred in finding that there was ‘…some slight support from the medical evidence’.[1]
8.The trial Judge placed excessive weight upon his evaluation of the complainant’s credit, having regard to the issues joined in the trial.
[1] R v Hall [2020] SADC 102 at [241].
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.
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.
The complainant was unaware of how long this went on for. When it stopped, the appellant kept masturbating for a little while. The complainant said, ‘Just stop, this is not going to work.’ The appellant turned to the corner of the room and put his pants back on. The complainant said to the appellant that he ‘really scared’ her.
The appellant picked up the complainant’s radio and tried to put it back onto her belt. He tried to zip up her pants. At that point, the complainant did not feel as though the appellant was going to do anything further and was no longer scared of him.
The complainant gave evidence as to why she did not call for help or use her radio alarm during the offending. She stated that she was petrified when the appellant first propositioned her, because he looked angry and she knew he was capable of hurting her. She was aware of his history of violence against women, which was not proven at the trial, and that he had killed a woman, for which he was serving a life sentence. She felt that he had nothing to lose and that if she resisted, he would kill her.
Events following the offending
After getting dressed, the complainant walked out of the cell. She gave evidence that she was in disbelief and felt scared and confused. She did not trust anyone, as she thought people would not believe her and that she would lose her job. However, the complainant believed that she appeared to behave normally, and several prison officers called by the prosecution said that they saw nothing out of the ordinary about her behaviour.
At about 11.00am, computer records showed that the complainant checked the appellant’s list of approved visitors. During cross-examination, the complainant gave evidence that she accessed the records for the purposes of bringing in a visitor for the appellant that afternoon. However, it was proven at trial that the appellant did not have any visitors that day.
The complainant left work that day at around 3:00pm for a pre-arranged appointment with her general practitioner, Dr Hough. The complainant said that on the way to the appointment, she intended on telling Dr Hough about the incident but did not end up doing so. During the consultation, Dr Hough gave evidence that the complainant appeared talkative, including about aspects of her work at the prison.
Following the consultation, the complainant went home. She did not tell her partner what had happened. The complainant said she was reluctant to tell her due to their relationship being under strain earlier in the year.
Initial complaint
The morning after the offending, on Saturday 22 July 2017, the complainant arranged to go to the football with her sister. While in her sister’s car, about to leave for the football, the complainant broke down and told her what happened. The evidence of the complainant’s sister was admitted at trial as evidence of an initial complaint pursuant to s 34M of the Evidence Act 1929 (SA).
Despite the complainant’s reluctance to tell anyone else about the offending, her sister pressed her to report the matter to Mr Ruwoldt. They went to Mr Ruwoldt’s house and reported the matter, before going to the Mount Gambier Police Station, where she gave an account to Constable Batten. There were minor inconsistencies between the account given to Constable Batten and the evidence given by the complainant in Court, however, counsel for the appellant laid no stress on the issue, as the inconsistencies were minor.
At the police station, the complainant had samples taken by Nurse Wilson. She had a subsequent physical and genital examination conducted on the same day at Mount Gambier Hospital. The notes and photos taken by Nurse Wilson were reviewed by Dr Young from the Yarrow Place Rape and Sexual Assault Service in Adelaide. The complainant was noted to have sustained the following injuries:
1.Three bruises on the front of her knees, which could have been caused by kneeling on a hard surface;
2.Four areas of bruises on the backs of the complainant’s legs, which the complainant attributed to sitting on a fence during a recent holiday;
3.A cluster of bruises behind her right knee, which the complainant attributed to the appellant forcefully holding onto that area during the offending. This cause was supported by Dr Young;
4.An injury to her vagina, specifically the right posterior vestibular fossa, the area around the opening of the vaginal canal. Dr Young said that the injury could have been caused by digital penetration. The complainant maintained that she was not aware of any injury to her vagina prior to 21 July 2017.
The appellant’s evidence
The appellant gave a very different version of events at trial, but did not dispute that he engaged in sexual activity with the complainant. He maintained that he was not sexually frustrated, largely because he had a girlfriend, Ms Bondarenko, who he engaged in sexual acts with during her fortnightly visits to the prison, and had ‘phone sex’ with about once a week.
The appellant gave evidence that he was aware of the complainant’s sexual orientation.
On the morning of 21 July 2017, the appellant stated that he spoke to his girlfriend over the phone and then had a shower. After his shower, the complainant came into the cell and asked if they could talk. The appellant agreed and the complainant closed and locked the door. They discussed the USB and the appellant asked what the complainant would give him in return if he got the USB. He told the complainant that he wanted to be left alone during his girlfriend’s visits.
The appellant then said that the complainant looked him up and down, and said, ‘I know what you really want. You have been in gaol for 12 years.’ She took off her radio and hugged the appellant. She then proceeded to undo her belt and fly, and pulled down her underwear, exposing her vagina to the appellant. She told him to touch her.
The appellant gave evidence that he had come to obey prison officers during his sentence. He cupped his hand and felt the complainant’s vagina. The complainant forcefully thrust herself against his hand for a couple of minutes. The complainant then pulled down the appellant’s pants and began masturbating and fellating him.
After doing that for a while, the appellant gave evidence that the complainant said, ‘You are turning me on. It has been 20 years since I’ve been with a male. Fuck me. Fuck me.’ The complainant went onto the appellant’s bed and got onto her knees. The appellant went over to the bed. He apologised for not having an erection. He cupped the complainant’s breast and then immediately stood up and said something to the effect of, ‘I can’t do this. I’m sorry.’ He backed off and teared up because the situation was ‘full on’ for him. The complainant asked the appellant if he was a man.
Nothing further of a sexual nature occurred and the complainant got up off the bed and got dressed. She said, ‘We shouldn’t have done this. Don’t tell anybody.’ The complainant started walking towards the door but then stopped and came back to kiss the appellant.
The appellant argues that what happened in the cell was against his will and was entirely at the instigation of the complainant. He did not think that his finger or fingers penetrated the complainant but said that it is possible that a finger penetrated her vagina when the complainant forcefully thrusted against his cupped hand. The appellant denied ever holding the complainant’s right leg.
The trial Judge’s analysis of the evidence
In analysing the evidence, the trial Judge considered the impressions formed of the principal witnesses, the credibility of their accounts and whether there was any evidence which supported the complainant’s account.
The trial Judge found the complainant to be an impressive witness and considered her account of events to be detailed and persuasive. While his Honour agreed that she was slow to admit that she may be wrong in respect of some topics, he concluded that there does not appear to be any ulterior motive.
In contrast, his Honour found the appellant to be an unimpressive witness. His Honour found that the appellant gave an unlikely and exaggerated account of the complainant’s behaviour in the cell in order to accommodate the forensic evidence.
In concluding that there was evidence to support the complainant’s account, the trial Judge turned to the initial complaint made by the complainant to her sister. Evidence of the complaint was used to demonstrate consistency of conduct and consistency of account on the part of the complainant, given that the complaint was made ‘quite soon after the event’[2] and that the complainant’s reasons for delaying the complaint were reasonable. In addition, his Honour found that there was ‘no material difference’[3] between the offending and the terms of the complaint.
[2] R v Hall [2020] SADC 102 at [240].
[3] R v Hall [2020] SADC 102 at [120].
Furthermore, his Honour concluded that there was some ‘slight support from the medical evidence’.[4] In particular, the injuries to the front of the complainant’s right knee and to her vagina were said to be more consistent with her account than the appellant’s account.
[4] R v Hall [2020] SADC 102 at [241].
The trial Judge formed the opinion that the prosecution account was compelling and plausible. His Honour rejected the defence hypothesis that the complainant offered the appellant sexual favours, on the basis that such a proposition ‘flies in the face of her sexual orientation’.[5] His Honour held that a further flaw in the hypothesis was that there was reason for the complainant to think that she had already gained the appellant’s cooperation.
[5] R v Hall [2020] SADC 102 at [256].
In assessing the plausibility of accounts, the trial Judge also found that the appellant had no notice of the complainant coming to his cell and that ‘for each of the complainant and the [appellant] it is likely that a spur of the moment decision was made’.[6] In his Honour’s view, that likelihood reduces the plausibility that the complainant proposed a sexual experience with the appellant for professional advancement.
[6] R v Hall [2020] SADC 102 at [266].
Finally, in finding that both counts of rape had been proven beyond reasonable doubt, the trial Judge accepted that the complainant froze, as she feared for her life and did not think to raise the alarm.
Ground 1 – Revocation of election
I now turn to the first ground of appeal, which is a complaint that the trial Judge erred in refusing the appellant permission to withdraw or revoke his election for trial by judge alone. The application to revoke the election was made pursuant to r 43 of the District Court Criminal Rules 2014 (SA), which states:
43—Election irrevocable
(1)Subject to rule 44, an accused who has made an election in accordance with the preceding rules is not permitted to revoke the election without the permission of the Court.
(2)Permission to revoke the election may be granted only if the Court is satisfied 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.
The basis of the appellant’s complaint in respect of this ground depends on the characterisation of the advice, which was given to the appellant at the time he made the election for trial by judge alone, as inadequate or incomplete advice in respect of a critical forensic matter.
The appellant’s submission is that, when properly understood, the events leading to the decision of the appellant to ask for a trial by jury did not amount to a mere change of heart or forum shopping as submitted by the prosecution, but that it was a fresh decision made on the basis of having received complete advice as to the limited basis for admissibility of the evidence of the complainant about her state of mind.
The appellant’s submission on this ground is based, to a large extent, on the events which occurred leading up to the filing of the notice for election for trial by judge alone and what thereafter occurred between the prosecution and the defence by way of correspondence and the tentative ruling made by the trial Judge.
Ms Powell QC sought to persuade this Court that the foregoing events had changed the landscape of the trial to such an extent that they could properly be characterised as constituting special reasons for the purposes of r 43 of the District Court Criminal Rules 2014 (SA). At the very least, the events were such that it was, in the circumstances, unjust to refuse permission to the appellant to revoke the election for trial by judge alone.
In order to assess this ground of appeal, it is important to understand the factual background which led to the application for trial by judge alone in the first place, and the events which occurred thereafter that led to the subsequent application to revoke the election that had been made.
Both parties accepted that the factual background set out by the trial Judge in his reasons[7] accurately reflects the chronology. It is important to set out that factual background here.
[7] R v Hall [2020] SADC 102 at [19]–[60].
The trial of the appellant was first listed to be heard before another District Court Judge and jury on 18 February 2019.
At that time, there was an application by the defence to exclude certain evidence that the prosecution sought to lead relating to the complainant’s knowledge that the appellant was, at the time of the offending, serving a life sentence for violent crimes against women. McIntyre DCJ made two orders in respect of that application. Without going into the details of those orders, the effect of them was that the prosecution could elicit some aspects of the complainant’s state of mind, but the complainant’s evidence would have to be tailored and restricted. The Judge’s ruling was delivered on 10 November 2019. The trial was listed to begin on 9 December 2019.
On 3 December 2019, the appellant filed an application for directions, including an application that the prosecution not be permitted to lead the utterance of ‘It’s been 12 years’ said to have been made by the appellant to the complainant. By this date, Mrs Marie Shaw QC had become counsel in the matter. There was a degree of uncertainty at the bar table about what evidence of discreditable conduct the prosecution sought to lead and what use might be made of that evidence. Thus, the prosecutor agreed to write a letter to the representatives of the appellant, clarifying all of the discreditable conduct evidence that the prosecution sought to lead. That letter was sent on 4 December 2019. In that letter, the prosecution also announced that it did not intend to lead any of that evidence for a propensity purpose. The evidence related to the complainant’s state of mind at the time of the offending and aspects of the appellant’s sentence.
Argument in respect of a number of topics took place on 5 December 2019 and continued on 9 December 2019.
In relation to the Director’s letter of 4 December 2019, Mrs Shaw QC contended that it represented a change in the prosecution position, particularly that the prosecution was now proposing to lead, as a fact, that the appellant had been in prison for at least 12 years. In light of that change, Mrs Shaw QC informed the Court that, given the prospect of that evidence being admitted, the appellant wished to elect for a trial by Judge alone. She said it was appropriate to make that election before the question of admissibility of the evidence in contention was ruled upon. The prosecution did not oppose that course.
On 9 December 2019, the appellant filed an application for trial by judge alone. On the same day, McIntyre DCJ made orders extending the time for filing the application and granting the application. It became necessary to adjourn the trial again for reasons unconnected with the defence application.
In due course, the trial was allocated to Barrett AJ and further argument before his Honour took place in April 2020. By then, a new trial date had been set for 22 June 2020.
On 24 April 2020, counsel then representing the appellant, Mrs Shaw QC, made submissions to the effect that instructions to elect for a trial by judge alone had been sought on the basis of an assumption that the rulings of the previous District Court Judge, McIntyre DCJ, would stand. The Judge heard argument on the prosecution application that was made pursuant to s 285AB of the CLCA, that it would not be in the interests of justice for the trial Judge to be bound by the orders made by McIntyre DCJ on 19 February 2019 and 9 November 2019.
There followed communications between the prosecution and the defence on the topic of a possible application by the appellant to withdraw his application for a trial by judge alone. The parties agreed that they both needed time to further discuss the issue before the Judge delivered a ruling. As a result of a joint request to adjourn delivery of the rulings, the Judge adjourned the matter to 8 May 2020.
The following emails were exchanged between the appellant’s representatives and the prosecution on 30 April, 3 May and 6 May 2020. The contents of those emails are important to the chronology, and are therefore set out below:
From: Williams, Ryan (AGD) …
Sent: Thursday, 30 April 2021 1:24 PM
To: Joseph Henderson …; Marie Shaw …
Cc: Nicholson, Georgina (AGD) …
Subject: URGENT Matter of Hall
Importance: High
Dear Mr Henderson
I respectfully raise an issue for your urgent consideration.
The Director notes that last Friday, a submission was made by Mrs Shaw QC to the effect that instructions to elect for trial by judge alone were sought on the basis of an assumption that the rulings of Her Honour Judge McIntyre would stand.
If there is to be any application to withdraw the election for trial by judge alone, in order to avoid the perception of tactical manoeuvring, such an application would have to be made prior to His Honour Judge Barrett’s ruling. I note His Honour’s ruling is due to be handed down tomorrow morning at 11am.
I can advise that if you wish to make an application to withdraw the election prior to the ruling, the Director would not require any affidavits in support. The submission Mrs Shaw QC has made is accepted. But please note if this is to be a trial by jury, the Director will nonetheless persist with the application to depart from Judge McIntyre’s rulings in the interests of justice, and further argument would have to be had.
I would be grateful if you could advise of your position at your earliest opportunity. If it is necessary to request that His Honour delays ruling for a few days, that would not be opposed.
Yours sincerely
Ryan Williams I Prosecutor
Office of the Director of Public Prosecutions
…
________________________________________________________________________
From: Joseph Henderson …
Sent: Sunday 3 May 2020 12:06 PM
To: Williams, Ryan (AGD) …
Cc: Nicholson, Georgina (AGD) …; Marie Shaw …
Subject: RE: URGENT – Matter of Hall
Good morning, Ryan
Further to your email below, I confirm that I will be attending on my client on Wednesday for instructions,
I note your confirmation that if this is to be a trial by Jury, the Director will persist with the application to depart from Judge McIntyre’s rulings, It is obviously important that I understand precisely your position prior to taking instructions.
Is it the case that on a trial by Jury:
You will seek to depart from Judge McIntyre’s ruling so as to be permitted to lead the evidence as articulated in your application for directions dated 10 February 2020; and
Regardless of the outcome of the application to depart, you will seek to lead the evidence articulated in your letter to Mrs Shaw QC dated 4 December 2019?
I would be grateful if you could confirm the position prior to Wednesday.
Kind regards
[Joseph Henderson] …
________________________________________________________________________
From: Williams, Ryan (AGD) …
Sent: Wednesday, 6 May 2020 9:37 AM
To: Joseph Henderson …
cc: Nicholson, Georgina (AGD); … Marie Shaw …
Subject: Re: URGENT – Matter of Hall
Importance: High
Dear Mr Henderson
In short, our primary position is that it is in the interests of justice for the trial judge to allow the complainant to freely give her evidence in her own words, describing important aspects of the narrative and providing her own explanations for her conduct (being highly relevant to the likelihood of the offending having occurred as alleged, for all the reasons we have explained.)
We say to a large extent, because of the nature of this case and the matters that will inevitably be explored at trial, it is unavoidable that evidence which is prejudicial to your client will be before the trier of fact. But we say this evidence is highly probative and the risk of impermissible reasoning can be appropriately managed by directions (whether in a trial by judge alone or jury).
So to be specific and in answer to your queries below, while we reserve our position in relation to any application that might be made to withdraw the election, I can confirm that if this were to proceed to trial by jury:
1* We would be arguing (of course necessarily on different grounds) for His Honour Judge Barrett to depart from the rulings of McIntyre DCJ in the interests of justice, in order that:
a.The prosecution be permitted to lead the items of evidence articulated in the application dated 10 February 2020 (for the relevant non-propensity uses set out in that document); or
b.in the alternative – should His Honour rule that either of the following references are inadmissible on the basis of prejudice to your client – that the prosecution be permitted to lead, in chief, the sanitised form instead:*
(i) the fact that the [appellant] was serving a “life sentence for murder and had served approximately 12 years’ – in lieu thereof, something to the effect that the defendant was serving ta [sic] lengthy prison sentence for a serious violent crime against a woman, had served approximately 12 years, and the complainant knew that’;
(ii) as to the fact that the [appellant] was ‘not eligible to apply for release on parole for another 10 years’ – in lieu thereof, something to the effect that ‘the defendant’s release date was not imminent and the complainant knew that’;
(iii) as to item (iii) (the complainant’s knowledge that the [appellant] had a ‘history of committing offences against women’) and (iv) (that the ‘victim of the murder was a woman, that it was a violent murder, and that there was an element of rape or sexual element to the crime’), this would be subsumed within the sanitised alternative proposed for item (i).
*Noting however that in the event the complainant were to be cross-examined in such a way that fairness required her to be permitted to elaborate beyond the sanitised forms, any such ruling restricting the evidence to the sanitised forms may again need to be revisited.
2. Regardless of the outcome of the application to depart, the prosecution will seek to lead the evidence articulated in the letter to Mrs Shaw QC dated 4 December 2019.
I hope this makes the prosecution position clear. As always, please do not hesitate to contact me should you wish to discuss the matter.
Yours faithfully
Ryan Williams
Prosecutor
Significantly, on 7 May 2020, in response to the email of 6 May 2020, the solicitor for the appellant confirmed that they were ‘not instructed to make any further application in respect of trial by jury/judge alone’.
On 8 May 2020, the trial Judge ruled that he would not regard himself as bound by McIntyre DCJ’s orders. On 14 May 2020, the solicitors and counsel then acting for the appellant advised the Court that they could no longer continue to act for the appellant due to an issue that had arisen.
On 15 May 2020, those solicitors and Mrs Shaw QC were given permission to withdraw. The appellant’s current counsel, Ms Lindy Powell QC, took over.
On 4 June 2020, the appellant filed an application for permission to withdraw his election for trial by judge alone pursuant to r 43 of the District Court Criminal Rules 2014 (SA).
Prior to that date, and by 29 May 2020, the issues as to the admissibility of the disputed discreditable conduct evidence had been resolved between the prosecution and the defence. It was decided that the evidence would be admitted at the trial by way of agreed fact that, at the time of the alleged offending, the appellant was serving a life sentence for the offence of murder, had served approximately 12 years and, further, that at the time of the alleged offending, the appellant’s release date was not imminent.
The only issue about that evidence which remained outstanding was whether the appellant’s sentence and the non-imminence of his eligibility for parole were also admissible for the purpose of explaining the appellant’s state of mind.
That is the relevant background to the ruling made by the Judge refusing to permit the appellant to withdraw his election.
On appeal, counsel for the appellant made a valiant attempt to persuade the Court that the Judge’s characterisation of the events that occurred after the election for trial by judge alone was incorrect. At [73], his Honour stated the following:[8]
In my view the [appellant] has not demonstrated any special reason why he should be given permission to revoke his election for trial by Judge Alone. All that has changed is that he has received different legal advice on the risks he runs if certain evidence of discreditable conduct is led.
[8] R v Hall [2020] SADC 102 at [73].
Ms Powell QC submitted that the trial Judge really missed the point, in that he failed to appreciate that the forensic landscape had significantly changed between the date of the original election, when Mrs Shaw QC was representing the appellant, and by the time the outstanding issues as to the admissibility of the disputed discreditable conduct evidence had been resolved by way of an agreed fact.
I cannot accept the appellant’s submission. The prosecution had made it clear to the legal representatives of the appellant in its letter dated 4 December 2019 what prejudicial evidence it sought to lead. That was the basis on which the appellant made the late election for trial by judge alone in December 2019. All that had changed between that date and the application to revoke was that, with the approach of new counsel, it had been acknowledged that the very same prejudicial evidence was, as a matter of law, admissible and would be led irrespective of the forum for trial.
I accept that there may be some cases where, as a result of counsel changing during the course of pre-trial manoeuvring, the difference of approach may be so significant, and the forensic landscape so changed, that a late application to revoke an election for trial by judge alone may be justified. However, this was not such a case. It is evident from the trial Judge’s reasons that he well understood the submissions made by Ms Powell QC and understood what was put to him as constituting special reasons demonstrating why it would be unjust to refuse the application. The appellant has not been able to demonstrate that the trial Judge made any error in his approach to the exercise of the discretion. I conclude that it was open to him to exercise the discretion in the way that he did. There was no dispute between the parties as to the relevant chronology relied on by the Judge. The only dispute was as to the significance of the events which occurred between December 2019 and the date the application for permission to revoke the election was made. The appellant characterised the events as of such a significant change that they could properly be found to constitute special reasons.
Notwithstanding the fact that there was much toing and froing between the parties prior to the election for trial by judge alone, including numerous pre-trial applications, adjournments and changes of both counsel and trial Judges, the bottom line is that the letter from the prosecution dated 4 December 2019 set out the position clearly at the time the election was made. Nothing really changed from that date except that counsel for the appellant later accepted the admissibility of the evidence.
In these circumstances, I am not persuaded that the circumstances did amount to a relevant change within the meaning of r 43(2), because it was the prospect of that very same evidence being admitted, which led to the election for trial by judge alone in the first place.
Upon the hearing of the appeal, the Court considered argument in relation to whether ground 1 could be made out if the appellant could demonstrate an error of law, including an error in the discretion not to permit the revocation. That argument raises an interesting and difficult question as to the appropriate test to be applied and whether a miscarriage of justice must always be demonstrated. In the end, the Court has found it unnecessary to decide that question in the context of the facts discussed here.
The reason for this is that, on any view of the chronology, the Judge made no error in applying the test in r 43 of the District Court Criminal Rules 2014 (SA). His analysis between [19]-[60] demonstrates that he carefully considered all of the relevant events that had occurred before and after the notice of election was filed. Therefore, the characterisation of the relevant events at [73] of his Honour’s reasons reveals no error.
As the appellant has not been able to demonstrate any error by the trial Judge in the exercise of the discretion, ground 1 must fail.
Ground 2 – Extraneous evidence
This is a complaint that arises out of remarks made by the trial Judge at [177] of his Honour’s reasons:[9]
Mr Williams submitted that the complainant has added detail of what was said by her and the [appellant] which would appear unlikely if her account was false. She said the [appellant] said that he would not hurt her (T69). That is particularly surprising given that the complainant knew the [appellant] was serving a sentence for murdering a woman. Although there was no evidence of the objective fact, the complainant believed that the [appellant] had a history of violence towards women and/or there was a sexual aspect to the murder.
[9] R v Hall [2020] SADC 102 at [177].
The appellant characterises the last sentence in that paragraph as a finding by the Judge that the complainant believed that there had been a sexual aspect to the murder of which the appellant had been convicted. This was said to explain the complainant’s state of mind, particularly why she did not activate the duress alarm.
The appellant submits that the trial Judge’s finding was based on extraneous material that was not the subject of any evidence and that was particularly prejudicial to the appellant.
There are two difficulties with that submission. The first is that, properly understood, the Judge did not make such a finding. Admittedly, he inaccurately summarised the prosecutor’s submission about that topic, however it could not be characterised as a finding. Rather, it was a comment made in the course of summarising what the prosecutor’s submission had been, and did not purport to be a summary of the evidence given. The other difficulty is that the complainant had in fact given evidence as follows:
A.I knew that he was capable of hurting me. His eyes were white - they were black and white if that makes sense. He looked angry and I knew that he had a history of violence towards women and I knew that he had killed a woman and I knew that he was capable of hurting me, bashing me. And I knew that he was serving a life sentence in prison and I just felt that he had nothing to lose. That if I resisted him he would kill me.
Sexual violence is one form of any number of violent crimes which may be committed against women. Murder is obviously at the upper end of the scale of seriousness of those crimes. In these circumstances, even if there was any latent misunderstanding on the part of the trial Judge about the extent of the complainant’s knowledge about the nature of the violence for which the appellant was convicted, it could hardly have mattered.
There is no substance in this ground of appeal.
I turn now to consider the next four grounds of appeal.
Grounds 3 to 6 – Consideration of the defence hypothesis, plausibility of account reasoning and complaint evidence
The next four grounds of appeal may be dealt with compendiously. On the view of the evidence which I take, each of the complaints made in grounds 3, 4, 5 and 6 are interrelated and, to some extent, overlap with each other.
The essential complaint made in ground 3 is that, in rejecting the defence case on the basis that it ‘flies in the face of the complainant’s sexual orientation’, the trial Judge failed to appreciate that the defence case was more nuanced, in that there was some evidence to support the hypothesis that the complainant was motivated to engage sexually with the appellant by matters apart from her sexual orientation.
Ground 4 is a complaint that the trial Judge erred when discussing the plausibility of the defence case by finding:[10]
[266]… For each of the complainant and the [appellant] it is likely that a spur of the moment decision was made. In my view that likelihood reduces even further the plausibility of the defence scenario that the complainant proposed a sexual experience with the [appellant] for professional advancement.
[10] R v Hall [2020] SADC 102 at [266].
Properly understood, ground 4 articulates another reason why the appellant submits that the Judge failed to give proper consideration to the defence case.
The appellant made a similar complaint in respect of the Judge’s approach to the complaint evidence. That complaint is the subject of both grounds 5 and 6. The appellant complains that the Judge erred in finding that the complainant’s conversation with her sister on 22 July 2017 was capable of demonstrating consistency of conduct and consistency of account on her part. Further, the Judge failed to consider, or properly bring to account, the various inconsistencies in the complainant’s account and in her reasons for her delay in complaining. In particular, the appellant complains that the Judge failed to consider the objective evidence which contradicted the reasons that the complainant gave for the delay.
It can be seen from the above that the appellant’s complaints really boil down to a complaint generally about the inadequacy of the trial Judge’s reasons in respect of those topics.
Much has been written about the principles that apply when considering the adequacy of a trial Judge’s reasons. A convenient and succinct summary is to be found in DL v The Queen:[11]
[32]The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.
[33]… Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge's conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:
“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”
(Citations omitted)
[11] (2018) 266 CLR 1 at [32]-[33].
However, as the Court of Criminal Appeal relevantly observed in McNamara v The Queen,[12] the emphasis in those passages of DL is on the identification of the real contest between the parties and the particular factual findings necessary to resolve those contests. Whether reasons are adequate in any given case, is a highly contextual question.
[12] [2021] SASCFC 2 at [82] per Nicholson, Livesey and Bleby JJ.
Here, the complaints in grounds 3, 4, 5 and 6, in essence, are complaints that, in rejecting the defence case and finding that the complaint evidence was evidence of consistency of conduct and account, the Judge failed to address key aspects of the evidence which pointed to the opposite conclusion. In these circumstances, the appellant submits that the Judge’s reasons are so opaque as to be wholly inadequate.
The Judge’s findings about the defence case are to be found at the following paragraphs of the judgment:[13]
[253]The defence hypothesis is that the complainant has not necessarily made the sexual overture because she had a sexual attraction towards the [appellant]. That hypothesis faces the obstacle that the complainant is homosexual. There is no objective evidence that she has ever been otherwise. She denies ever being otherwise.
[254]Instead, the defence hypothesis is that the complainant has, at no personal cost to herself, offered the [appellant] sexual favours so as to secure his co-operation. In that way she may obtain professional advancements within the prison.
…
[256]However in my view this hypothesis is highly improbable for a number of reasons. It is in my view not the case that the complainant’s offering sexual favours to the [appellant] was without any cost to her. It flies in the face of her sexual orientation. She would lose her job and her reputation if the matter came to light. The risk of the matter coming to light was considerable.
[13] Hall v The Queen [2020] SADC 102 at [253]-[254], [256].
In rejecting the defence case, the appellant submits that the Judge did not ever really explain why, notwithstanding her sexual proclivity for women, it was so improbable that the complainant initiated sexual activity with the appellant. This is particularly so given that there was other evidence capable of supporting the defence hypothesis. For example, the appellant pointed to the fact that immediately after the rape, the complainant went to the visitors’ log book and checked for any visits to the appellant on that day. There was no explanation for accessing the record in that way. At the very least, this was so unusual that it might be expected that the Judge would have explicitly dealt with that in his reasons.
In addition, there were other aspects of the evidence that the trial Judge needed to specifically resolve in this context. For example, the evidence of the complainant’s superior officer, Mr Ruwoldt, was that he had asked the complainant to make sure that she notified him on every occasion that she wanted to set up a meeting with a prisoner. Those instructions were specifically designed to ensure that any contact with the prisoners was facilitated in a structured and safe way, and in a secure area where other officers were either very close or present. This was the only occasion when the complainant did not tell Mr Ruwoldt that she wanted a one-on-one meeting with the appellant, notwithstanding the fact that both the complainant and Mr Ruwoldt were present at work at 8.00am that morning and shared the same office.
The finding at [266][14] of the Judge’s reasons was also challenged in this regard. The appellant submits that contrary to the Judge’s finding that it was a chance encounter, the evidence supported the conclusion that, at least from the complainant’s point of view, it was not a chance encounter as the Judge seemed to imply. In this respect, the appellant submitted that the whole of the evidence revealed that the complainant had devised and acted upon a calculated plan to be alone with the appellant that morning, despite the fact that there was uncontroverted evidence that she could have arranged a private conversation with him in other areas.
[14] See [83] above.
There were other aspects of the complainant’s conduct on that day which were potentially consistent with the defence hypothesis.
Although it may be, as the Judge found, that some aspects of the complainant’s behaviour during the incident may be due to the complainant being afraid and freezing, the Judge did not go on to explore or explain why her behaviour later in that day, particularly her failure to complain until the next day, was not capable of supporting the defence case in the circumstances. The complainant’s explanation that she would lose her job lacked credibility, as on her own evidence, she was adamant she had done nothing wrong by entering the appellant’s cell alone.
Furthermore, the complainant’s behaviour during her attendance that afternoon for a medical procedure with her general practitioner, Dr Hough, was inconsistent with the complainant’s evidence about that attendance. The complainant said that she was quiet throughout the medical procedure and denied being talkative. On the other hand, Dr Hough, who was the complainant’s general practitioner at the time and had been treating the complainant for some time for a number of matters including depression and anxiety, said that the complainant was talkative and spoke about a number of matters that afternoon. This included her son’s interest in becoming a medical student and her work.
The appellant submitted that the trial Judge’s findings in relation to the complaint evidence at [240] only compounded the problem. At [240] the trial Judge said:[15]
There is some support for the complainant’s account. The complaint she made to her sister the following day is substantially the same as her evidence. There is consistency of account. The complaint was made quite soon after the event. The complainant’s reasons for delaying the complaint are reasonable. She feared the consequences if she told anyone at the prison on the 21st July. She was deterred from speaking to her general practitioner because the medical student was present. She was anxious about telling her partner that night and the next morning because of the history of difficulties in the relationship. I find there is consistency of conduct.
[15] R v Hall [2020] SADC 102 at [240].
The appellant complained that the bald statement at the conclusion of that paragraph does not reveal how the trial Judge resolved the many inconsistencies in the complaint evidence and reconciled aspects about the complainant’s behaviour which were inconsistent with a finding that there had been any consistency of conduct.
The error made by the trial Judge is compounded by the fact that some of the objective evidence was capable of contradicting some of the complainant’s reasons for delaying a complaint.
I accept that not everything relevant to a complainant’s credit must be referred to. However, I accept the appellant’s submission that there were aspects of the complainant’s conduct on that day which were, on the face of it, unusual and needed to be specifically dealt with by the trial Judge.
The complainant was a woman of mature years who had worked as a correctional services officer in a prison environment for a number of years. She wore a duress alarm on the day of the offending and had been properly trained on how to use it.
This was a case where the trial Judge’s assessment of the reliability and credibility of the complainant was central to the prosecution case.
In light of some aspects of the objective evidence referred to above, which were not disputed by either party and many of which were potentially consistent with the defence case, I consider that more was required from the trial Judge to explain why the defence case was so implausible.
All the matters about which the appellant now complains in grounds 3 to 6 were matters which went to the heart of the complainant’s credibility and reliability. That was the central issue at trial. For these reasons, I consider that a substantial miscarriage of justice may have resulted from the failure of the trial Judge to specifically deal with the aspects of the evidence that were inconsistent with the prosecution case.
For these reasons, I would allow the appeal in respect of grounds 3, 4, 5 and 6.
In light of that conclusion, I will deal only briefly with the final two grounds of appeal.
Ground 7 – Medical evidence
The appellant complained that there was insufficient evidence to support the Judge’s finding that there was ‘some slight support from the medical evidence’.[16]
[16] R v Hall [2020] SADC 102 at [241].
As counsel for the respondent submitted, there was in fact support for the complainant’s account in the medical evidence. Those reasons were explained clearly by the trial Judge in [241]-[244]:[17]
[241]There is some slight support from the medical evidence. The complainant says she did not have injuries to the front of her knees before the 21st July. They are consistent with coming into contact with the floor of the [appellant’s] cell. As there is no evidence about the amount of force needed to cause those injuries they are also consistent with the defence case. The [appellant] says that the complainant knelt on the floor when she fellated him.
[242]The complainant says the bruises on the back of her right knee were not there before the 21st July. She attributes them to the [appellant] holding her right leg forcibly. Those injuries are not explained by the defence evidence. The complainant acknowledges that the bruises on the upper back of her thighs were caused by sitting on the fence during her recent holiday.
[243]The complainant says that she can think of no way she could have sustained the injury to her vagina before 21 July. She said that when the [appellant] penetrated her vagina with his finger or fingers she felt stinging. The [appellant’s] evidence goes some way to accommodating this injury. He says that the complainant placed his hand over her vagina and forcefully thrust herself against his hand. Although he did not intentionally penetrate her vagina he allows for the possibility that the complainant’s forceful movements caused that to happen. In my view it is unlikely that the injury to the vagina was caused in that way.
[244]In my view the injuries to the back of the complainant’s right knee are some small support for the complainant’s evidence.
[17] R v Hall [2020] SADC 102 at [241]-[244].
Nothing more needs to be said about this ground of appeal.
Ground 8 – Evaluation of the complainant’s credit
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.
Even if it could be said that the earlier advice was given without the benefit of a complete understanding of the ultimate forensic landscape, the accused’s legal advisors were nevertheless in a position to undertake the broad assessment of risks that it is contemplated will be able to be made at the time of an election to proceed by way of trial by judge alone. Given that an election is required to be made well before rulings on evidence might ordinarily be expected to occur, it cannot be the case that an accused is entitled to expect a favourable exercise of the discretion to revoke an election (or, indeed, to make a late election) whenever there is a change in the forensic landscape.
In the circumstances I have described, I consider that it was within the trial judge’s discretion to refuse the accused permission to revoke his election to proceed by way of trial by judge alone. Put another way, I am not satisfied that the appellant has established error, in the sense required by House v The King,[18] in the trial judge’s exercise of his discretion.
[18] House v The King (1936) 55 CLR 499 at 504-505.
I would reject this ground of appeal.
Ground 2: extraneous evidence
I agree with Kelly J’s reasons for refusing permission to appeal on ground 2.
Ground 3: failure to consider the defence case
The essential complaint made in ground 3 is that the trial judge rejected the defence case, or hypothesis, on the basis that it “flies in the face of her sexual orientation”. The appellant contends that the complainant’s homosexuality did not provide a proper basis for excluding that hypothesis as a reasonable possibility, and that his Honour’s approach thus demonstrated an erroneous understanding of the defence case, or at least an inadequately reasoned rejection of it.
While it is true that the trial judge referred to the complainant’s homosexuality as an obstacle to the defence hypothesis, I do not accept that his Honour’s reasons demonstrate a failure to appreciate the true nature of the defence hypothesis, or that his reasons do not provide a properly reasoned basis for rejecting that hypothesis.
The trial judge’s reasons for verdict included the following summary of the defence hypothesis, and his reasons for rejecting it:
[253]The defence hypothesis is that the complainant has not necessarily made the sexual overture because she had a sexual attraction towards the accused. That hypothesis faces the obstacle that the complainant is homosexual. There is no objective evidence that she has ever been otherwise. She denies ever being otherwise.
[254]Instead, the defence hypothesis is that the complainant has, at no personal cost to herself, offered the accused sexual favours so as to secure his co-operation. In that way she may obtain professional advancement within the prison.
[255]There is of course no sense in which the accused assumes any burden of proof in putting forward this or any other hypothesis. The prosecution has to prove its case beyond reasonable doubt.
[256]However in my view this hypothesis is highly improbable for a number of reasons. It is in my view not the case that the complainant’s offering sexual favours to the accused was without any cost to her. It flies in the face of her sexual orientation. She would lose her job and her reputation if the matter came to light. The risk of the matter coming to light was considerable.
[257]A further flaw in the hypothesis is that there was, even on the accused’s account, reason for the complainant to think that she had already gained the accused’s co-operation. She was given no reason to think that she had to do something more to secure the accused’s co-operation.
It can be seen from the above extract from the trial judge’s reasons that his Honour understood the defence hypothesis; namely, that the complainant offered the appellant sexual favours so as to secure his co-operation, and to thereby assist her own professional advancement. The trial judge referred to this aspect of the defence case in similar terms elsewhere in his reasons. His Honour did not misunderstand the defence case as relying upon a hypothesis that assumed the complainant was motivated by sexual attraction or gratification.
Further, in rejecting the defence hypothesis as a reasonable possibility, the trial judge did not rest his reasoning solely, or even predominantly, upon the evidence as to the complainant’s sexual orientation. While that evidence featured as a consideration in his Honour’s reasoning (at [256]), his Honour also took account of several other considerations. In the passage extracted (at [256]-[257]) his Honour also made reference to the considerable risks to the complainant’s job and reputation were the matter to have come to light, the considerable risk the matter would come to light, and the evidence that suggested that the appellant’s co-operation had already been gained.
Later in his reasons (at [266]) the trial judge mentioned the defence submission to the effect that the appellant had no notice of the complainant’s visit to his cell, and hence little time to weigh up the risks and benefits of a sexual experience with the complainant. The defence contrasted the position of the complainant, contending that she had had more time to contemplate what she might do in the appellant’s cell. However, as the trial judge pointed out, the evidence that the complainant announced her intention to speak with the appellant to both her colleague (Mr Gleed) and another prisoner (the appellant’s cell mate, Mr Loughnan), makes it likely that any decision by the complainant to offer a sexual favour was a spur of the moment one. In his Honour’s view, “that likelihood reduces even further the plausibility of the defence scenario that the complainant proposed a sexual experience with the accused for professional advancement.”
It is not for this Court to second guess the precise weight that the trial judge attached to the evidence as to the complainant’s sexual orientation in his assessment of the plausibility of the defence hypothesis. The weight to attach to this consideration was a matter for his Honour as the trier of fact. It is enough for the purposes of addressing ground 3 that his Honour properly identified and articulated the defence hypothesis, and sufficiently articulated his reasons for rejecting that hypothesis. In my view, his Honour did so, and reached a conclusion that was open to him on the evidence.
It is true that later in the trial judge’s reasons (at [265], [269]) his Honour referred to the evidence that, shortly prior to the complainant visiting him, the appellant had had sexual thoughts on his mind during a conversation with his partner (Ms Bondarenko). While his Honour considered this a relevant consideration, I do not accept that his Honour’s reasons evince a failure to take account of the appellant’s evidence as to his sexual relationship with Ms Bondarenko, or any inappropriate transposition by his Honour of the appellant’s feelings for his partner into sexual attraction towards the complainant, let alone a preparedness to act on that attraction. Rather, the reasons demonstrate only that his Honour considered that there was evidence to suggest that any sexual frustration on the part of the appellant may have been fresh in his mind.
It is also true that the trial judge did not, in the above passage from his Honour’s reasons, make explicit reference to the complainant not having advised her supervisor (Mr Ruwoldt) of her intention to visit the appellant in his cell, and the evidence that Mr Ruwoldt would not have assented to her doing so alone. However, the trial judge had addressed this aspect of the evidence earlier in his reasons (at [247]-[248]), pointing to Mr Ruwoldt’s acceptance that the complainant’s visit did not involve breaking any rule or protocol, and the informal and even friendly culture that existed at the Mount Gambier prison. His Honour added that there was, in any event, nothing clandestine about the complainant not seeking out Mr Ruwoldt for permission to visit the appellant’s cell. Indeed, she had told both Mr Gleed and Mr Loughnan of her intention to visit the appellant in his cell only shortly prior to doing so.
The appellant complains that the trial judge did not mention the possibility that the complainant was motivated by a desire to secure the appellant’s co-operation more generally and into the future, rather than just in relation to the USB. In my view, that is a matter of detail that it was not necessary for the trial judge to address. The trial judge’s obligation to give adequate reasons does not extend to an obligation to address every nuance or aspect of every submission. In circumstances where this aspect of the defence hypothesis was not ever put to the complainant during her evidence, and was merely an extension of the alleged desire to secure the appellant’s co-operation in respect of the USB (which the trial judge did mention), no inadequacy in the trial judge’s reasons has been established.
I am not satisfied that ground 3 reveals any inadequacy in the trial judge’s understanding of the defence case, or in his Honour’s reasons (or articulation of those reasons) for rejecting it. No miscarriage of justice has been established, and so I would reject ground 3.
Ground 4: plausibility of account reasoning
Under ground 4, the appellant contends that, in the section of his Honour’s reasons headed “Plausibility of the accounts”, the trial judge erred in finding (at [266]) that for “each of the complainant [on the defence case] and the accused [on the prosecution case] it is likely that a spur of the moment decision was made.”
The appellant contends that his Honour was right to mention the spur of the moment decision by the accused inherent in the prosecution case. As his Honour observed earlier in the same paragraph, it was clear that the accused had no notice of the complainant coming to his cell.
However, the appellant contends that his Honour erred in suggesting that any decision by the complainant (on the defence case) was likely to have been spur of the moment. The appellant points in this regard to the complainant’s own evidence that she was intending to visit the appellant while he was alone in his cell, and to the evidence to the effect that she did so without advising her supervisor of her intention, and in circumstances where he would not have assented to her doing so.
I have already referred in the context of my consideration of ground 3 to the trial judge’s reasoning on this topic. His Honour did not overlook the evidence to the effect that the complainant’s decision to visit and speak to the appellant while he was alone was not spur of the moment. Properly understood, it was the decision by the complainant (on the defence case) to initiate sexual contact that his Honour suggested was likely spur of the moment. And his Honour set out his reasons for so finding; namely, that the complainant having informed not only her colleague (Mr Gleed), but also the appellant’s cell mate (Mr Loughnan), of her intention to speak with the appellant, told against her intending to do anything of a sexual nature with the accused.
In my view, the trial judge’s conclusion that it was likely that any decision by the complainant to engage in sexual conduct was made on the spur of the moment was open to the trial judge, and based on reasons that were adequately identified and articulated.
Once it is understood that his Honour was referring to the decision to initiate or engage in sexual activity that was likely to have been spur of the moment, and not the decision to visit the appellant while he was alone, it is not to the point that the trial judge did not refer in this part of his reasons to the availability of an alternative venue for a private conversation with the appellant.
Also under this ground of appeal, the appellant complains that the trial judge, when considering the complainant’s evidence, merely noted that “she did not think to call out or use her radio alarm.” The appellant contends that the trial judge thereby failed to address the evidence to the effect that had she activated her radio alarm by simply pressing the button on her belt, this would immediately have notified the prison control room of her need for assistance, and would have been immediately acted upon.
When summarising the complainant’s evidence, the trial judge referred to the complainant’s evidence that she “did not think to call out or use her radio alarm” without any elaboration. However, it is not as though the trial judge overlooked the likely effectiveness of the radio alarm, and the ease with which it could be activated. His Honour mentioned the evidence on these topics both in summarising the prosecution case (at [173]) and the defence case (at [204]). In the former context, the trial judge said:
[173][The prosecutor] submitted that it is unsurprising that the complainant did not raise the alarm. He said it is understandable that she simply froze when she realised what the accused was proposing to do. She said that she did not think about the duress button. Although the complainant did not give evidence of exactly how the duress button worked, Mr Ruwoldt explained the process. Pressing the duress bus cancelled all other radios for 10 seconds. Although the duress button was silent when pressed, it showed up a light, both on the radio and in the control room. The complainant would have to speak into the microphone and indicate where she was. Nothing indicated to those in the control room where the alarm was being pressed. [The prosecutor] submitted that even if the complainant had thought to press the duress button that was no “immediate parachute” out of her predicament.
Later in the trial judge’s reasons, his Honour made it plain that he had accepted the prosecution case in this respect. Having found the complainant to be a credible and reliable witness, and setting out his reasons for so finding, his Honour said (at [270]):
I find that the complainant effectively froze. She feared for her life. She did not think to raise the alarm.
Again, the appellant has not established that the findings in question were not open to the judge, or that his Honour’s reasoning was inadequate. I would reject this ground of appeal.
Grounds 5 and 6: the complaint evidence
Grounds 5 and 6 challenge the trial judge’s approach to the evidence of the complaint made by the complainant to her sister during the morning following her encounter with the appellant. The appellant contends (ground 5) that this evidence did not demonstrate consistency of account on the part of the complainant; that there were inconsistencies in her account that the trial judge did not refer to or deal with. The appellant also contends (ground 6) that the trial judge erred in finding that the evidence of this complaint demonstrated consistency of conduct on the part of the complainant; that his Honour failed to consider or bring to account the complainant’s behaviour during the intervening period between the offending and the complaint, and the reasons for delay asserted by the complainant.
The trial judge’s treatment of the complaint evidence needs to be considered in the context of the evidence as to the complainant’s conduct in the period immediately following her encounter with the appellant and her complaint to her sister the following morning. The judge summarised that evidence as follows:
[113]The complainant left the accused’s cottage at 9.37 am. She remained at work until around 3 pm. Although there is some imprecision about the time, it is clear that the complainant left work earlier than normal to keep a pre-arranged appointment with her general practitioner, Dr Deborah Hough. She kept the appointment. The complainant said that after the incident she felt scared and confused. She felt some disbelief about what had happened. She did not know how people would react. She thought people would not believe her and she would lose her job. She did not trust anyone. Although the complainant said that she has a poor memory of the rest of the day she believed that she appeared to be behaving normally.
[114]The prosecution called several prisoner officers who interacted with the complainant during the rest of the day. Witnesses Ruwoldt, Bain and Schmoock spoke of the complainant appearing normal. They saw nothing out of the ordinary about her behaviour.
[115]The purpose of the appointment that afternoon with the general practitioner was to undergo a minor surgical procedure. The complainant said that on the way to the appointment she had intentions of telling the doctor what had happened. When she got to the surgery, she found that there was a medical student there. She agreed she was asked by Dr Hough whether she consented to the student being present and she agrees that she did consent.
[116]Dr Hough gave evidence that she was running over time with her appointments and she sent the student to tell the complainant about that. She also asked the student to talk to the complainant about the proposed procedure. Dr Hough said that when she got to the treatment area, “they were already in the treatment” (T317). Dr Hough said that during the consultation the complainant was quite talkative, including about aspects of her work at the prison.
[117]…
[118]After her consultation with Dr Hough the complainant went home where she spent the night. She did not tell her partner what had happened. The complainant said she was reluctant to tell her because of the strain on the relationship from earlier in the year. That is despite the couple having reconciled and having just returned from a week long holiday.
[119]On the Saturday morning it was arranged that the complainant would go to the football with her sister.
The trial judge then summarised the complaint evidence in the following terms:
[120]When the complainant and her sister were in the sister’s car about to leave for the football the complainant broke down and told her what had happened. In material respects the complainant’s account of the events to her sister are consistent with her evidence of what happened. Pursuant to s 34M of the Evidence Act the evidence of what the complainant said to her sister is admissible as evidence of an initial complaint. The evidence may not be used as evidence of the truth of the allegations (s 34M(4)(b)). It may be used to explain how the allegation first came to light (ss 4(a)(1)) and it may be used as evidence demonstrating consistency of conduct on the part of the complainant (ss 4(a)(2)). The complainant’s evidence in this case is, in my view, capable of demonstrating consistency of conduct. The complaint was made relatively soon after the alleged offending. It is also capable of demonstrating consistency of account. There is no material difference between the alleged offending and the terms of the complaint.
[121]The complainant was reluctant to tell anyone apart from her sister about what she says happened. In particular she was afraid her superior Mr Ruwoldt would be angry with her. The complainant’s sister pressed her to report the matter to him. They went to Mr Ruwoldt’s house and reported the matter. They then went to the police station. The complainant told the male police officer at the front counter of the Mt Gambier police station something of what had happened. The complainant’s report to that officer, Constable Adrian Batten, was led, not as evidence of complaint, but as evidence of an account by the complainant which is inconsistent with her evidence in court. Constable Batten was unsure whether his recollection of what the complainant told him was derived from what she told him herself, or what he was told by the female officer who took a detailed statement from the complainant that afternoon. I conclude that the minor inconsistency did not appear in the statement taken by the female officer because no such inconsistency was put to the complainant. The inconsistency is so minor that, quite understandably, [defence counsel] laid no stress on it.
Later, in the operative section of his Honour’s reasons, under the heading “Supporting Evidence”, the trial judge returned to the topic of the complaint evidence:
[240]There is some support for the complainant’s account. The complaint she made to her sister the following day is substantially the same as her evidence. There is consistency of account. The complaint was made quite soon after the event. The complainant’s reasons for delaying the complaint are reasonable. She feared the consequences if she told anyone at the prison on the 21st July. She was deterred from speaking to her general practitioner because the medical student was present. She was anxious about telling her partner that night and the next morning because of the history of difficulties in the relationship. I find there is consistency of conduct.
There is no merit in the first limb of the appellant’s challenge to the trial judge’s treatment of the complaint evidence (that is, the ground 5 challenge). In the closing address, the appellant’s counsel chose not to make a “great deal” of the inconsistency between the account given by the complaint witness (the sister) and the complainant regarding whether the complainant had said that the appellant had handed her a USB or not, inviting his Honour merely to “note it”. Further, while the trial judge did mention an additional inconsistency between the complaint evidence and the complainant’s evidence at trial,[19] his Honour said there was “no material difference”[20] between the two, and that they were “substantially the same”.[21]
[19] At [200], referring to the sister’s evidence that the complainant said that the accused unzipped his pants when it was the evidence of the complainant (and the accused) that he was wearing tracksuit pants.
[20] At [120].
[21] At [240].
In circumstances where the appellant only mentioned in passing one other very minor potential inconsistency that it is said the judge overlooked, I would reject ground 5. I do not consider that the matters raised required explicit attention in his Honour’s reasons, and indeed counsel for the appellant essentially conceded as much in oral argument.
Turning to ground 6, I do not accept that the trial judge overlooked the relevance of the complainant’s ‘delay’ in making a complaint to her sister, or indeed that there is any defect or inadequacy in his Honour’s reasoning as to the same.
It is apparent from the passages I have extracted from the trial judge’s reasons that he gave careful consideration to the evidence as to the complainant’s conduct immediately following her encounter with the appellant, and as to the timing and circumstances of her complaint to her sister.
The appellant contends that the trial judge failed to bring to account various aspects of this evidence.
The first example relied upon by the appellant in this regard was the evidence of other corrections officers as to the complainant’s demeanour, conversation and activities for the rest of the day following her encounter with the appellant. The difficulty with this example is that it is not borne out by a consideration of the trial judge’s reasons. As set out, the judge expressly referred to this evidence in paragraph [114] of his reasons, summarising it as evidence from three corrections officers that the complainant appeared “normal”, and that they “saw nothing out of the ordinary about her behaviour.” In circumstances where, as the trial judge observed in the preceding paragraph, the complainant’s own evidence was that she “believed that she appeared to be behaving normally”, this compendious reference to that evidence was sufficient.
Next, the appellant refers to two contended inconsistencies in relation to the complainant’s explanation of her decision not to say anything to her general practitioner (Dr Hough) about the incident.
The first of these contended inconsistencies focused upon the complainant’s evidence to the effect that she intended to disclose what had happened to her to Dr Hough, but was deterred from doing so by the presence at that consultation of a medical student. This evidence was said to be inconsistent with the evidence that she consented to the presence of the medical student prior to that consultation beginning.
However, when read in full, there is no inconsistency in, or other difficulty with, the complainant’s evidence on this topic. In evidence in chief, the complainant mentioned her appointment with Dr Hough, and the presence of a medical student. When asked how she was feeling at that appointment, she said:[22]
A.I was still in disbelief, and on the way to the doctor’s I had intentions of telling her, but when I got into the appointment and the medical student was in there I just couldn’t do it, couldn’t say anything.
[22] T79.
During cross-examination, the complainant acknowledged that she was asked for, and gave, her consent to the medical student being present. The cross-examination continued:
Q.Didn’t Dr Hough ask for your permission to have the medical student attend with you on that consultation.
A. Yes.
Q. Why didn’t you say ‘I want to speak to you alone’.
A. I just said yes.
Q.But if you were going to tell Dr Hough about what you say happened with Hall, you wanted to do that on your own; didn’t you.
A. Yes.
Q. Because you say the medical student being there was what stopped you doing it.
A. I was just scared. I didn’t even know how to say it. I didn’t know how to bring it up.
Q.But you say it was the medical student’s presence that stopped you bringing it up, don’t you.
A. Yeah.
Q.When Dr Hough said ‘Can medical student’ -, X, whatever their name was, ‘- stay during your consultation’, why didn’t you just say no.
A. I don’t know.
Q. You had no intention of telling Dr Hough about this, did you.
A. I did.
A proper reading of this evidence discloses no inconsistency or difficulty that required any detailed treatment by the trial judge. The complainant’s evidence was simply that she had intended to disclose the incident to Dr Hough, but that when she found there was a medical student present, she did not feel able to do so. The trial judge summarised this evidence in paragraph [115] of his reasons, and referred to it again at paragraph [240]. I see nothing remarkable about this evidence. While the complainant had initially intended to disclose the matter to her doctor, she did not feel able or comfortable doing so once she was there. While the presence of the medical student appears to have contributed to her inability to, or decision not to, make any disclosure, I do not regard her failure to decline permission for the student to be present a matter of any great significance. I do not regard the trial judge’s reasons as inadequate by reason of his failure to give any consideration to this evidence beyond what appeared in paragraphs [115] and [240] of his reasons.
As to the second asserted inconsistency in connection with the complainant’s appointment with Dr Hough, I acknowledge that there is a tension between Dr Hough’s evidence (which the trial judge referred to in paragraph [116]) that the complainant was quite talkative, including about aspects of her work at the prison, and the complainant’s evidence. However, once again, when the evidence is considered in full, the tension is not nearly as stark as the appellant’s submissions suggest. The relevant passage from the complainant’s cross-examination was as follows:[23]
[23] T202-203.
Q. You were quite happy and talkative with Dr Hough during this procedure.
A. No, I wasn’t. I just laid there.
Q. Didn’t say anything at all.
A. Not that I can remember.
Q. Would deny that you were quite talkative.
A. I don’t think I was very talkative.
Q. Pardon.
A. I don’t think I was very talkative. I don’t remember being talkative.
Q. You don’t remember being talkative.
A. No.
It can thus be seen that, when pressed, the complainant’s initial denial that she was “happy and talkative”, ultimately became evidence simply to the effect that she did not remember being talkative. In my view, to the extent that this aspect of the evidence required any explicit treatment by the trial judge, it was sufficient that he referred to Dr Hough’s evidence that she considered the complainant to have been quite talkative during the consultation. To the extent this was relevant to the consistency of the complainant’s post incident conduct, the judge took it into account.
The next matter relied upon by the appellant in this context was the trial judge’s reference to the complainant not telling her partner about the incident by reason of “tensions in the relationship”, when the evidence was that at the time they were happy in their relationship. The first response to make to this submission is that the reference to “tensions in the relationship” appears in a section of the trial judge’s reasons summarising the prosecution case, rather than any operative reasoning on the part of the judge. Secondly, and more importantly, a consideration of the judge’s operative reasoning makes it plain that he was aware that the “tensions” or “difficulties” in the relationship were historic. In particular, in paragraph [118], his Honour referred to the complainant being “reluctant to tell [her partner] because of the strain on the relationship from earlier in the year. That is despite the couple having reconciled and having just returned from a week long holiday.” And in paragraph [240], his Honour referred to a “history” of difficulties in the relationship. Properly understood, there was no inconsistency or discrepancy that required further explanation or resolution by the trial judge. While it was relevant, when considering consistency of conduct, to have regard to the complainant’s ‘failure’ to tell her partner, the judge referred to, and took account of, this matter.
Finally, the appellant also relies upon the trial judge’s reference to the complainant thinking she “might lose her job.” He contends that this is inconsistent with her evidence that she had done nothing wrong by entering the appellant’s cell, and with what she said occurred in the cell that morning. While the judge did make reference (at [113]) to the complainant thinking she might lose her job, his Honour did so in the context that the complainant had intended; namely, that she did not know how people would react, and that she thought they might not believe her. Understood in that context, there is no inconsistency between her contemplation that she might lose her job (based upon people not believing her), and her belief that (in fact) she had done nothing wrong.
In my view, the trial judge adequately dealt with all of the evidence as to the complainant’s conduct from the time she left the appellant’s cell through to and including her complaint to her sister. While there were several aspects of that evidence that warranted careful consideration, his Honour attended to that task. Further, having attended to that task, it was open to his Honour to take the view that he did; namely, that despite the matters raised, the complaint by the complainant to her sister demonstrated “consistency of conduct” on the part of the complainant that provided some support for her account.
Understood in the context of his Honour’s reasons as a whole, his reference to “consistency” of conduct did not mean that his Honour had ignored all the contended difficulties with the complainant’s explanation for the ‘delay’ in making a complaint. Rather, it meant simply that the explanations proffered for this ‘delay’ were sufficient to mean that the fact, timing and circumstances of the complaint were nevertheless such that there was a degree of consistency[24] between the complainant’s conduct in respect of that complaint and what one might reasonably have expected of her in the circumstances as she alleged them to be. As such, the evidence provided some support for the complainant’s evidence.
[24] R v H, T (2010) 108 SASR 86 at [105]-[106].
In my view, the trial judge’s approach and reasoning in this context was orthodox, adequately articulated and sound. It was open to him to reach the conclusion he did as to consistency of conduct associated with the complainant’s complaint to her sister. There was nothing inherently implausible or inconsistent about the complainant’s conduct after leaving the appellant’s cell. That conduct, and in particular the complaint made the following day, was consistent with the wide range of responses that one might expect of a person placed in the position the complainant (on her evidence) found herself.
There is one final matter that the appellant raised under the rubric of grounds 5 and 6. It relates to the evidence that just over an hour after leaving the appellant’s cell, the complainant went to the registration building of the prison to assist in admitting visitors for prisoners who had visits scheduled for the morning. During cross-examination, the complainant was asked why she had at this time accessed the prison visitor records relating to the appellant. In the series of questions and answers that followed, the complainant said that she believed the appellant had a visitor that morning. The appellant complains that the trial judge did not address why the complainant would have wanted to be involved in facilitating visits to the appellant that morning, or to have made inquiries about his visitors; or how the complainant’s evidence in this respect could be reconciled with the fact that the relevant records would not have contained the information that the complainant thought she recalled accessing.
Contrary to the appellant’s submissions, the trial judge did address this aspect of the evidence. He said (at [206]):
The complainant agrees that she spoke briefly with two prisoners after she left the accused’s cell. The computer records show that she was back at work at 10.30. At 11.00 am she is recorded as checking the accused’s visitor list. [Defence counsel] suggested that the complainant might have done this to see if the accused was expecting a visitor whom he might tell about what had happened in the cell. In fact the document the complainant reviewed was not the one which showed whether the accused was expecting a visitor. It was simply a list of approved visitors. When cross-examined on this topic the complainant said that she thought the records would show that the accused would have had a visitor that day or that weekend. That is not correct. The accused was not expecting a visit from Ms Bondarenko until the weekend after. While [defence counsel] did not suggest a reason why the complainant might have misrepresented the proposed visit, she did criticize what she described as the complainant’s dogged assertion that the accused was probably expecting a visit that weekend.
While the trial judge was not able to reach any neat resolution of the evidence on this topic, I do not think this matters. Given what I regard to be the relatively tentative and equivocal terms in which the complainant gave her evidence on this topic, and the limited attention it received in the evidence and submissions, I consider that the judge was entitled to treat it as a matter of little moment in the overall scheme of things.
I would refuse permission to appeal on grounds 5 and 6.
Ground 7: the medical evidence
Under ground 7, the appellant contends that the trial judge erred in finding (at [241]) that there was “some slight support [for the complainant’s account] from the medical evidence.”
I refer to Kelly J’s reasons in respect of this ground. While the appellant’s submissions in respect of this ground challenged the trial judge’s failure to address a contended discrepancy in the evidence as to the complainant’s vaginal injury, and a consequential submission that his Honour ought to have treated that injury as equivocal, it can be seen from the passage from the trial judge’s reasons extracted by Kelly J that the support the trial judge was referring to was from the evidence as to the complainant’s injuries to her knees. Those injuries were not explained by the defence hypothesis.
While the trial judge referred to the complainant’s vaginal injury (at [243]) he did not ultimately draw any express support for the complainant’s account from the evidence as to this injury.
In any event, to the extent the trial judge might have taken that injury into account as providing support for the complainant’s account, I do not think it is realistic to contend that his Honour overlooked the evidence as to the difficulty in differentiating between an abrasion and bruising, and the implications of this difference, given his Honour’s earlier detailed consideration of this evidence and difference (at [128]-[130]).
I would refuse permission to appeal on this ground.
Ground 8: value of credit
Ground 8 contends that the trial judge placed excessive weight upon his evaluation of the complainant’s credit having regard to the issues joined in the trial.
The appellant’s submissions in support of this ground commenced with the proposition that a positive assessment of credit cannot replace analysis of the evidence, particularly when the defence case and hypothesis has not been given appropriate consideration. While this may accepted, the only matters advanced in support of this submission were matters that have been addressed in earlier grounds of appeal. For the reasons I have given in respect of those individual grounds, I do not consider there to have been any inadequacy in the trial judge’s analysis of the evidence, or consideration of the defence case or hypothesis, in respect of any of the matters raised under these headings. In my view, the reasons given by the trial judge for accepting the complainant’s evidence as credible and reliable were adequately identified and explained.
I would refuse permission to appeal on this ground.
Conclusion
For the reasons set out, I would refuse permission to appeal on the grounds not already the subject of a grant of permission (that is, grounds 2, 5, 6, 7 and 8), and would dismiss the appeal.
4
1