Helps v The Queen (No 3)
[2021] SASCFC 10
•19 February 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
HELPS v THE QUEEN (No 3)
[2021] SASCFC 10
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, the Honourable Justice Stanley and the Honourable Justice Doyle)
19 February 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY - AVAILABILITY AT TRIAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWER TO BRING APPEAL - GENERALLY
Second appeal against conviction.
The applicant, Mr Helps, was charged with 10 counts of sexual offending against the complainant, CN, his step daughter, spanning the period from 31 December 2005 to 1 January 2011. The charges against the applicant included four counts of Aggravated Indecent Assault (Counts 4, 5, 7 and 8).
At the first trial, the applicant elected for trial by Judge alone, and was convicted on 15 March 2016 on all 10 counts. The applicant subsequently appealed against his convictions. On 23 December 2016, the Court of Criminal Appeal allowed the appeal, quashed the convictions and remitted the matter to the District Court for re-trial.
At the second trial, the applicant again elected for trial by Judge alone, and was again convicted on all 10 counts on 19 June 2018. The applicant subsequently appealed his convictions, which appeal was dismissed on 13 June 2019.
The applicant now applies pursuant to s 159 of the Criminal Procedure Act 1921 (SA) (CPA) for a “second or subsequent appeal” against the convictions at the second trial.
Relevantly, the presentation of the prosecution case at the second trial was such that the subject of Count 8 was a sexual assault upon CN while on the bonnet of the applicant’s manual Suzuki car between 4 April 2010 and 21 July 2010.
This application is made on the basis that there is evidence (the Suzuki evidence) which demonstrates that the applicant sold, and transferred possession of, the Suzuki vehicle on 12 December 2009, and hence Count 8 did not occur in the circumstances alleged by the prosecution.
Held, per Peek J, in dissent:
1.The Suzuki evidence is compelling within s 159(6)(b) of the CPA.
2.Section 159(6)(a)(ii) of the CPA is to be interpreted so as to require the Court to focus on the particular applicant, in his particular circumstances, and ask what could that particular individual reasonably be expected to have done. In so doing, great latitude must be extended to the applicant.
3.When bearing in mind Helps’ circumstances as an accused, what is under consideration is his actual position as a person charged with serious offences and represented by his lawyer in the way that he was (in rare circumstances of gross incompetence).
4.If rejecting the respondent’s position that Helps should have succeeded in obtaining the required documents in circumstances where the lawyer had singularly failed entails allowing Helps latitude, the required degree of such latitude easily conforms with the views expressed by Chief Justice Barwick in Ratten v The Queen (1974) 131 CLR 510 and this Court in R v Keogh (No 2) (2014) 121 SASR 307.
Held, per Stanley and Doyle JJ, refusing permission to appeal:
1.The Suzuki evidence is compelling within s 159(6)(b) of the CPA.
2. It is also an essential condition of the Court’s jurisdiction to hear a “second or subsequent” appeal that the applicant establish that the Suzuki evidence is “fresh” within the meaning of s 159(6)(a)(ii) of the CPA. Unlike with a common form criminal appeal, establishing a miscarriage of justice is not sufficient.
3. The test under s 159(6)(a)(ii) of whether evidence is fresh is whether it “could not, even with the exercise of reasonable diligence, have been adduced at the trial”. This ordinarily encompasses consideration of the actions or inaction of both the applicant and his or her legal representatives.
4.The evidence establishes that the applicant was alive to the relevance and significance of the Suzuki evidence before the second trial. It is apparent from his conduct in subsequently obtaining a copy of the disposal notice that he both understood that such a document might be available, and in fact obtained it with ease.
5.While the applicant’s lawyer, like the applicant, could have been more diligent, that conclusion only reinforces the failure of the applicant to establish that the Suzuki evidence could not have been obtained earlier by the exercise of reasonable diligence.
6.The Suzuki evidence could, with the exercise of reasonable diligence, have been adduced at the second trial, and accordingly does not satisfy the test of fresh evidence for the purposes of s 159 of the CPA.
Criminal Procedure Act 1921 (SA) s 159; Criminal Law Consolidation Act 1935 (SA) ss 353, 353A; Supreme Court Criminal Rules 2014 (SA) r 44, referred to.
Ali v The Queen (2005) 79 ALJR 662; Craig v The King (1933) 49 CLR 429; Gallagher v The Queen (1986) 160 CLR 392; Green v The King (1939) 61 CLR 167; Lawless v The Queen (1979) 142 CLR 659; Leuschel v Police (1999) 75 SASR 231; Nudd v The Queen (2006) 80 ALJR 614; R v Birks (1990) 19 NSWLR 677; R v Drummond (No 2) [2015] SASCFC 82; R v Frederick [2004] SASC 404; R v Helps [2018] SADC 63; R v Keogh (No 2) (2014) 121 SASR 307; R v Liddy (2002) 81 SASR 22; R v MacDonald (1995) 65 SASR 322; Ratten v The Queen (1974) 131 CLR 510; Re Knowles [1984] VR 751; Re Ratten [1974] VR 201; Re Van Beelen’s Petition (1974) 9 SASR 163; R v H, CS [2016] SADC 23; The Queen v H (1995) 184 LSJS 68; The Queen v VHP (Unreported, Court of Criminal Appeal, NSW, No 60733 of 1996, 7 July 1997); Van Beelen v The Queen (2017) 262 CLR 565, discussed.
Hampson v Hampson [2010] NSWCA 359; R v Bromley [2018] SASCFC 41; R v Dossi (1918) 13 Cr App R 158; R v Helps [2016] SASCFC 154; R v Helps [2019] SASCFC 66; R v McIntee (1985) 38 SASR 432; R v Van Beelan (2016) 125 SASR 253; TKWJ v The Queen (2002) 212 CLR 124, considered.
HELPS v THE QUEEN (No 3)
[2021] SASCFC 10
Court of Criminal Appeal: Peek, Stanley and Doyle JJ
PEEK J: “Second appeal against conviction” pursuant to s 159 Criminal Procedure Act 1921 (CPA).
This Judgment proceeds in the following parts:
Part 1: Introduction and overview
Part 2: A “second or subsequent appeal against conviction” – s 159 CPA
Part 3: The first trial and the first appeal
Part 4: The second trial and the second appeal
Part 5: The evidence is “compelling” within s 159(6)(b) CPA
Part 6: “Fresh evidence” – the common law background
Part 7: The evidence is “fresh” within s 159 CPA
PART 1: INTRODUCTION AND OVERVIEW
The applicant, Mr Craig Helps (Helps), after a re-trial of an Information by Judge alone (the second trial) was convicted of 10 counts of offences against the complainant, Ms CN (CN), his step daughter (the subject offending).
CN was born on 4 April 1995. Her parents separated and divorced when she was about five years old. Her mother, Ms DT (DT), retained custody of both her and her brother, Mr WN (WN). After the separation, Helps and DT formed a relationship and they, together with CN and WN (the family), commenced to live at Helps’ home at Taperoo. Helps assumed the role of a father figure and the two children called him ‘dad’ from the outset of their relationship.
The family later moved to Kurralta Park (the Kurralta Park property) and still later, in late 2009, moved to Blanchetown (the Blanchetown property). The subject offending is said to have commenced when the family resided at the Kurralta Park property and to have continued when they moved to the Blanchetown property.
Subsequent to the subject offending, CN left the Blanchetown property and initially lived with her older adult sister; later with her biological father; and still later with her current partner, Mr JG.
The charges against Helps consisted of: three counts of Unlawful Sexual Intercourse with a Person Under 14 (Counts 1, 2, 3); four counts of Aggravated Indecent Assault (Counts 4, 5, 7, 8); one count of Gross Indecency (Count 6); one count of Unlawful Sexual Intercourse with a Person Under 17 (Count 9); and one count of Aggravated Assault (Count 10). The averred dates in the Information spanned the period from 31 December 2005 to 1 January 2011.
At his first trial, Helps elected for trial by Judge alone. Prior to, and during, that trial (before District Court Judge Stretton), he was represented by Kudra & Co (solicitors at Berri) and Mr J Lyons (of counsel). On 15 March 2016, Helps was convicted on all 10 counts.[1]
[1] The Queen v H, CS [2016] SADC 23 (Judge Stretton).
Helps appealed against his convictions (the first appeal). He was then represented by the Legal Services Commission (LSC) and in particular by Mr Lutt (a solicitor employed by the LSC) and Mr Mead SC (counsel employed by the LSC). On 23 December 2016, this Court allowed the appeal, quashed the convictions and remitted the matter to the District Court for re-trial.[2]
[2] R v Helps [2016] SASCFC 154 (Kelly J, Peek and Lovell JJ agreeing).
Prior to, and during, the second trial before District Court Judge David (as she then was), Helps continued to be represented by Mr Lutt and Mr Mead. Following the second trial, Helps was again convicted on all 10 counts on 19 June 2018.[3]
[3] R v Helps [2018] SADC 63. He was convicted on the alternative charge for Counts 4, 5, 7, 8 and 10.
Helps again appealed his convictions (the second appeal). Prior to, and on, that appeal he was represented by a third set of different lawyers being the firm Mangan Ey & Associates (and in particular Mr Redmond, solicitor) and Mr Culshaw (of counsel). The second appeal was dismissed by this Court on 13 June 2019.[4]
[4] R v Helps [2019] SASCFC 66 (Kelly J, Vanstone and Parker JJ agreeing).
Helps now applies pursuant to s 159 CPA for a “second or subsequent appeal” against the convictions at the second trial. This will be referred to as “the present application” to minimise confusion.[5] It was commenced by a Notice of Second or Subsequent Appeal lodged on 14 April 2020. Prior to, and during, the present application, Helps has been represented by a fourth lawyer, Mr Moen (a sole practitioner).
[5] As is apparent, it is Helps’ third appeal proceeding, but it is a “Second Appeal” against the verdicts at the second trial for the purposes of s 159 CPA.
For reasons that will become apparent, Count 8 was of critical importance at the second trial, and remains so for the present application. It appears as follows:
Eighth Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
Craig Stewart Helps between the 31st day of December 2008 and the 1st day of January 2011 at Blanchetown, indecently assaulted [CN], a person of the age of 13 or 14 years, by rubbing his penis on her body.
It is further alleged that Craig Stewart Helps committed the offence knowing that [CN] was, at the time of the offence, a child of whom he had custody as a parent or guardian.
Count 8 is alleged to have occurred in the garage at the Blanchetown property. It is alleged that CN wanted Helps to teach her to drive a manual car, and she approached Helps when he was in the garage working on his manual Suzuki car (the Suzuki). CN alleged that Helps picked her up, put her on the bonnet of the Suzuki and started rubbing his penis on her.
Although the date range as originally averred in Count 8 is broad and uninformative, the presentation of the prosecution case at the second trial was such that the prosecution case became that the subject of Count 8 was a sexual assault upon CN while on the bonnet of the Suzuki in the garage at the Blanchetown property between 4 April 2010 (CN’s 15th birthday) and 21 July 2010 (when CN left the Blanchetown property).[6]
[6] This aspect is discussed below at [68] to [88].
An overview of the evidence before this Court
The Court received the following material as exhibits.
Exhibit Number
Description
Relevance
A1
First affidavit of Craig Helps sworn 30.4.2020
Applicant
A2
Second affidavit of Craig Helps sworn 5.6.2020
Applicant
A3
Third affidavit of Craig Helps sworn 2.7.2020
Applicant
A4
Affidavit of DT sworn 2.7.2020
Wife of applicant
A5
Affidavit of Stan Kupniewski sworn 7.5.2020
Purchaser of Suzuki
A6
Affidavit of Detective Brevet Sergeant White sworn 1.6.2020
Suzuki documentation
R7
Affidavit of Gregory Mead SC sworn 21.7.2020
Counsel – first appeal and second trial
R8
Affidavit of Michael Lutt sworn 17.6.2020
Solicitor – first appeal and second trial
R9
Affidavit of Andrew Ey sworn 2.6.2020
Solicitor – second appeal
R10
Affidavit of Andrew Culshaw sworn 15.6.2020
Counsel – second appeal
R11
Affidavit of John Lyons sworn 18.6.2020
Counsel – first trial
R12
Affidavit of Noah Redmond sworn 24.6.2020
Solicitor
R13
Record of Interview of Craig Helps dated 31.8.2014
Applicant
The evidence now relied upon as “fresh evidence” (to be referred to as “the Suzuki evidence”) is affidavit and documentary evidence, which clearly demonstrates that Helps sold the Suzuki to Mr Stan Kupniewski (Kupniewski) on 12 December 2009, who took possession of it at that time; and that it is therefore impossible that Count 8 occurred in the circumstances alleged by the prosecution. It consists of the following. First, a true copy of the letter from the Department of Planning, Transport and Infrastructure (DPTI) dated 28 June 2018, pertaining to the Suzuki VOA402.[7] This will subsequently be referred to as the 28 June 2018 DPTI letter and appears as follows:
[7] First affidavit of Helps, Exhibit A1, Annexure CSH-1.
Government of South Australia
Department of Planning,
Transport and Infrastructure
In reply please quote 8424S
Enquiries to Information ServicesRegistration & Licensing
Reform
Regulation
GPO Box 1533
Adelaide SA 5001
ABN 92 366 288 13528 June 2018
Mr Craig Helps
125 Carleton Road
SUNLANDS SA 5322Dear Mr Helps,
VOA402 SUZUKI TOURING UTILITY
I refer to your request for information concerning the sale of the above vehicle.
I can confirm from the records of this office that the above vehicle was registered in the name of Craig Stewart Helps.
A Notice of Disposal was lodged with this office on 14 January 2010 for this vehicle with a disposal date of 12 December 2009.
I trust this information will be of assistance.
Yours sincerely,
[signed]
INFORMATION SERVICES
Secondly, the affidavit of Kupniewski (the purchaser of the Suzuki) in which he deposes:[8]
2. I currently reside in BLANCEHTOWN.
3. Sometime in 2009 I was in the market to purchase a new vehicle. I can’t be certain but I believe I saw an advertisement in the local deli advertising the sale of a Suzuki Touring Utility with South Australian Registration VOA402.
4. Because of the time frame I can not recall exactly how it came to be but I made contact with the seller, a Mr Craig HELPS and sought to purchase the vehicle.
5. I recall attending Mr HELPS home address and I believe at the time the vehicle was parked out the front of the premises. Mr HELPS informed me that he had received an expiation notice and that he was selling the car to pay for that fine.
6. We negotiated on the price but eventually agreed on around $800. I paid in cash for the vehicle. I took possession of the vehicle immediately and took it back to my house. At the time the vehicle was unregistered but I can not recall how I got the vehicle back home.
7. Because I needed the vehicle I would have registered it within days of purchasing it. I believe I attended the Gawler Department of Motor Registration to register the vehicle but I can’t be sure. I have since been informed by Detective Brevet Sergeant WHITE that vehicle and licence records indicate I registered the vehicle on the 16th of December, 2009. This appears to be correct.
…
[8] Affidavit of Stan Kupniewski, Exhibit A5.
Thirdly, the affidavit of Detective Brevet Sergeant White. [9] He deposes:
4. On the 5th of May, 2020 I was made aware by the Office of the Director of Public Prosecution that Craig Stewart HELPS was seeking to appeal his conviction. As part of this appeal Mr HELPS had signed a Waiver of Privilege. This waiver pertains specifically to Count 8 on the Information DCCRM-15-234. In particular such authority pertains to any and all information and instructions relating to enquiries requested, enquiries made and information relating to vehicle South Australian registration VOA402 and disposal notice, selling of such vehicle and any instructions and or information pertaining to such disposal with the Department of Planning, Transport and Infrastructure about the disposal of said vehicle.
5. On the 7th of May, 2020 I made a request to the Department of Planning, Transport and Infrastructure for records of disposal of vehicle VOA 402. In response I was provided with an extract from an entry in the register of motor vehicles.
6. The first page shows that the vehicle VOA 402 was purchased on the 8th of July, 2008 by Mr Craig HELPS. It was registered to Mr HELPS at the address of 13 Adams Street, BLANCHETOWN. I have attached a copy of this extract to this statement and refer to it as Annexure A.
7. The second page shows the same vehicle VOA 402 transferring registration in to the name Stan KUPNIEWSKI on the 12th of December, 2009. This information is corroborated by Mr KUPNIEWSKI. I have attached a copy of this extract to this statement as Annexure B.
[9] Affidavit of Detective Brevet Sergeant White, Exhibit A6.
It is unnecessary to reproduce annexures A and B. However, it may be noted that the annexures were printed and signed by Registrar of Motor Vehicles on 8 May 2020 at 10.21 am and 10.22 am respectively, very shortly after they were requested on 7 May 2020.
The above matters are canvassed in further detail below.
The evidence of the applicant before this Court
Three affidavits sworn by Helps were received on this application. In his first affidavit sworn on 30 April 2020, Helps deposed as follows:
25. There is fresh/new and compelling evidence that I say should in the interests of justice be considered by the Court of Criminal Appeal. Such evidence relates to my Suzuki Touring Utility VOA 402
and the dinning table being the central pedestal style octagonal table. Annexed hereto and marked with the letter CSH-1 is a true copy of the letter from DTPI [sic DPTI] dated 28 June 2018 pertaining to the Suzuki VOA402,and “CSH-2” which is a true copy of an email report dated 14 August 2018 from Mabarrack Furniture (Mr Matt Mabarrack) in regards to the central pedestal octagonal table.26. I confirm that I had instructed my previous lawyers Mr Meade [sic Mead] and Mr Lutt of the Legal Services Commission well before my second trial to search for and get the relevant paperwork pertaining to the notice of disposal and the evidence about the dining table to submit during my trial but this was never done.
27. I assumed that Mr Meade [sic] and Mr Lutt would have obtained these materials and as such did not exert myself in obtaining these in order to obtain same before my second trial. It was not until I realized the lawyers were not getting these materials that I started to make my own enquiries.
28. I had briefly spoken with Stan the person whom I had sold my Suzuki vehicle to and he had no record or information about the purchase and disposal to assist me due to the passage of time. In addition he advised me that he had already sold the Suzuki vehicle to a new owner. I provided the contact details of Stan to my lawyers and such information was always available to the lawyers to contact Stan at any time to assist but this was never done to my knowledge and belief.
29. My first attempts to obtain the relevant documents including the disposal notice took place approximately 1-2 months before my second trial. I had applied online to the motor transport authority on the Mygov website. I paid a small fee of approximately $20.00 to obtain the relevant information. I expected this information to be posted to me from the motor transport authority. I had not received this information by the time the second trial commenced.
30. I also confirm that I had contacted the motor registration services in Berri but received no satisfactory response in regards to my enquiries at all.
31. Finally I had to attend in person at the motor registration services in Berri and requested a print out of the dispoal [sic disposal] notice and it was at this time that I acquired the disposal notice of the Suzuki vehicle. [Emphasis and strikethrough added]
Annexure CSH-1 appears above at [17].
In Helps’ oral evidence (and in his second affidavit referred to below), it was made clear that paragraph 31 of his first affidavit was correct, but that this event did not occur until after the Judge in the second trial had delivered her verdict on 19 June 2018. In any event, such is obvious from the date on the face of annexure CSH-1 above.
In his second affidavit sworn on 5 June 2020, received by this Court as Exhibit A2, Helps deposed as follows:
2. This Second Affidavit deals specifically with my instructions and dealings with my various legal representatives in regards to the Suzuki Motor Vheicle [sic Vehicle].
3. I recall that in or around approximately 1 December 2009, I received a $810.00 traffic fine/infringement from SAPol for driving the Suzuki Motor Vehicle unregistered.
4. On 12 December 2009 I sold/disposed of the Suzuki Motor Vehicle to pay for the fine/infringement notice and paid this in full shortly after the sale of the Suzuki Motor Vehicle.
5. The alleged offending in regards to the Suzuki Motor Vehicle was said to have taken place after 4 April 2010, some four months after the sale and disposition of the Suzuki Motor Vehicle.
6. On or about 16 January 2016, Mr John Lyons came to my residential address for a scheduled interview on his way to an unrelated matter in the Riverland. The meeting took place with my partner [DT] and a potential witness in my case Ms Jackie Wiffers and myself. The sale of the Suzuki Motor Vehicle was discussed but not the date of sale.
7. I recall on a number of occasions in telephone conversations with Mr Lyons in or about March 2016 and before that date that the Suzuki Motor Vehicle had been sold to pay for the fine that I had received.
8. In my first trial, evidence was led that the Suzuki Motor Vehicle was sold to pay for the fine that I had received.
9. I recall prior to my second and subsequent trial that I spoke with Mr Mead and Mr Lutt of the Legal Services Commission in regards to the disposal of the Suzuki Motor Vehicle. I cannot recall the exact date when this occurred due to the passage of time, but I do recall that I was informed that they (Mr Mead and or Mr Lutt) would “look into it.”.
10. I do recall that the date of the sale of the Suzuki Motor Vehicle was not discussed by Mr Lutt or Mr Mead until approximately 4 months before my second and subsequent trial.
11. I recall specifically asking Mr Mead and Mr Lutt to obtain the relevant paperwork for the sale/disposal of the Suzuki Motor Vehicle on at least three occasions during different interviews that I had with them.
12. I had multiple meetings with Mr Mead and Mr Lutt prior to the commencement of my second and subsequent trial and I provided the paperwork in respect of the fine/infringement to them at one of these meetings.
13. I had also provided to Mr Mead and Mr Lutt, the name and phone number of the person whom I had sold the Suzuki Motor Vehicle to, but cannot recall when this was. However, I know that it was prior to the second and subsequent trial and in one of the meetings that I had with them.
14. During the trial a speeding fine/infringement notice I believe was submitted in evidence and it was explained to Her Honour Judge David that the Suzuki Motor Vehicle had been sold to pay for the fine/infringement notice.
15. Subsequent to the second trial, I realized that Mr Mead and Mr Lutt had not obtained the information for the sale or disposal of the Suzuki Motor Vehicle. I was not aware of this position at trial.
16. In or about April 2018 I applied personally to obtain a copy of the Suzuki Motor Vehicle disposal notice on line, and this was requested to be sent to my residential address. I never received the disposal notice even after paying the $20.00 lodgment request fee. I followed this up with a number of telephone calls to the motor reg department but to no avail.
17. On 19 June 2018 I was convicted in regards to the Second and Subsequent Trial.
18. On 28 June 2018 I personally went into the Berri motor reg department and acquired a copy of the disposal notice. I recall subsequently providing this to Mr Mead and the Legal Services Commission. I believe to the best of my recollection that this was in the month preceding my sentencing before Her Honour Judge David on 25 July 2018.
19. I specifically recall that the disposal notice that I had provided to Mr Mead and or Mr Lutt was tendered and provided to Her Honour Judge David after my conviction and pending sentence. This was done in open Court before Her Honour prior t [sic to] my sentencing and to the best of my recollection was received by Her Honour.
It is true that there are some infelicities at paragraphs 8, 14 and 19. Paragraphs 8 and 14 are obviously incorrect, as any basic check prior to tendering them would have shown; they should refer to the second rather than the first trial. As to paragraph 19, Helps’ mother, Mrs Hilda Helps, did suggest to Mr Lutt that that should be done, but he declined and it was not done. These mistakes are so readily apparent from a rudimentary reading of the transcripts that it is obvious that they proceed from poor memory, drafting and checking rather than any intention to deceive.
Helps also gave oral evidence. His evidence in chief was quite short and extended little beyond the affidavit material. His cross-examination was long and somewhat meandering. That is not a criticism of the cross-examiner so much as a reference to three facts that became very apparent.
First, Helps’ memory of the details of the previous legal proceedings (two trials and two appeals over the period from February 2016 to 13 June 2019) is quite poor. Secondly, his understanding of legal matters is very poor. And thirdly, even now, he is very unclear as to the precise significance of the Suzuki evidence. A few salient excerpts from his evidence are as follows:
QWhen did you first think the date might be important, if at all.
AYeah, that’s right, it did come very late, after the, maybe before the second trial in 2018 or maybe even after the second trial.
QWhat brought it to your attention. What made you think it was important.
AI can’t remember why I thought it was important.
QI don’t mean this unkindly -
AIt was just like a moment that came to me, I got to get this date, you know, I can’t remember why.
QWhat was it that made the penny drop that the sale of the car might be important.
ANo, I can’t recall why.
QWas it something you remembered, or was it something brought up by your legal advisors.
AI honestly can’t remember.
QSo that was after your first trial had finished.
AI believe it would have been after the first trial, yes.
QAfter the first appeal, can you help us with that. Was it before or after the first appeal.
AI reckon it might have been after I even got out of gaol. After I was sentenced and done my first seven months in gaol. That year-and-a-half out between then and the second trial. I reckon it would have been in that timeframe somewhere.
QI just want to get that sequence correct. Don’t worry about the dates for the moment, but you have your first trial and evidence has finished, and then the judge goes away and has a think and then you come back to court some time later, verdict you’re found guilty. Correct.
AI believe so, yes.
QAnd then there’s a delay between the verdict and sentence, after that first trial.
AYeah, I’m not too sure but I believe there would have been, yeah.
QWere you still on bail, awaiting sentence, after the verdict of the first trial.
AI can’t recall if I was on bail or not.
QAll right. Then you got sentenced, you were certainly in custody after being sentenced.
AYeah, yep.
QAnd you were in custody at the time of your first appeal. Does that sound right. If you’re not sure, say so.
AI’m not too sure.
QOkay. It’s the first appeal I want to ask you about. So - my phrase, not yours - but had the penny dropped about the importance of the date of the sale of the Suzuki, had that become clear to you by the time of your first appeal or not.
ANo.
QHad not.
ANo.
QSo you hadn’t been talking about it with [DT].
ANo. It was more the fine for driving the car was more of an issue.
QWhy was that an issue, as opposed to the date you sold the car.
AI don’t know why it was much of an issue, but it was more of a topic that we talked about.
QWas the real issue to do with the Suzuki, the bonnet scoop, the modifications you’d made to the bonnet.
AYes, that was an issue that we talked about. Topic I should say.
QWas the issue or the reason that became a topic, because it was being suggested that there couldn’t have been this sexual touching that [CN] was alleging, because there was a bit bonnet scoop preventing her from sitting on the bonnet.
AThat was one of the points, yes.
QWhat were the other points.
AI think the point of the fact of the car being a metre 15 to the bonnet was a point.
QWhat sort of Suzuki was it.
AA Sierra, about a 1980 model Sierra or ‘79 or something like that.
…
QThe question of the date upon which you received that expiation notice. As far as you were concerned, did that have any importance leading into that first trial.
ANo, not really significant importance. I just thought it was a fact why we had sold the car. This is the reason why we had sold the car.
QWas the sale of the car an issue that was important to you, leading into that first trial.
ANot at the time, no.
…
QWas it important to you or not, the date that you sold the car.
ANot during the first trial, no.
QWas it something you spoke to Mr Lyons about, the fact that you had sold the car.
AThe fact that we had sold the car, yes.
QWhat did you tell him.
AWe had sold the car to pay for the fine.
QHow did the topic of the fine come up when you were giving instructions to Mr Lyons.
AJust the fact that one of these allegations were to do with the car.
QIn your mind, what was the significance of that allegation. Why was selling the car important.
AIn my mind?
QYes.
ATo pay for the fine.
QBut what did the fine have to do with it.
AThe cost.
QI’m not meaning to be difficult with you, but why was the cost important.
ABecause we didn’t have a lot of money and the only way I could have paid the fine was to sell the car.
QIsn’t this the thing, that you sold the car after you’d been living up in Blanchetown for a few months. You’d been up there a few months and then you sold the car.
AYeah.
QThen sometime about six months later [CN] moves out of the house. Is that a rough chronology of things.
AYeah.
QSo it was never the case in your mind, was it, that the allegation about touching her sexually while she sat on the bonnet could never have happened by virtue of the fact that the car got sold. The car was up there at the same time [CN] was, wasn’t it.
AIt was, yes.
QFor a period of about three months, give or take a bit.
AThat’s right, yes.
QSo was the date of the sale of the car important to you or not.
ANot at the first trial, no.
QWhat made it become important to you.
AJust a lightbulb moment and I can’t remember if it was before the second trial or after the second trial. It was just a lightbulb moment: we need the date when the car was sold.
QDid the conversation of getting a document relating to the transfer of registration come up with Mr Lutt as your lawyers were preparing for the second trial.
AIn conversation?
QYep.
AYeah.
QWhat was said about it.
AAbout the transfer of registration? I asked them to acquire it for me.
QWhen did you do that.
AFour or six months before the second trial.
QWhere were you when you made that request of them.
AIn the legal aid office.
QSo it was an in-person meeting.
AYes.
QWho was present.
AMe, my sister, my mum, Mr Mead and Mr Lutt.
QWhat was their response. Start with Mr Lutt, what was his response when you told him about that.
AMr Lutt, I think he was the one that answered me that he would look into it.
QHow did it come up in conversation about getting the registration document. Who brought it up.
AI can’t remember if it was me, my mum or my sister. It was one of us.
QWhat was the context in which it was brought up.
AWe were just suggesting the relevance of the disposal notice would have been a good key.
QRelevance was what. What was the relevance in your mind.
AThe date could have been a key factor.
QKey factor about what.
AAbout when the car was sold.
QI know I’ve asked you this before but why, at that point, did the date on which the car was sold seem important to you.
ABecause I think that was one thing we didn’t have.
QYes, but what was the significance of it in the context of the trial that was about to unfold. What did you think the relevance of the date of the sale of the car was.
AJust to have all the balls in one net so you’re ready for any argument. Just to be ready, just to have all the information in front of us.
QBut to what end. What was the point.
AWe didn’t know the point. I was fighting against lies and false allegations so what was the point of coming up with any evidence.
QIt wasn’t going to show, was it, that this just couldn’t have happened because the car was at Blanchetown at the same time that [CN] was living there, wasn’t it.
AIt was for a period, yes.
QIt wasn’t as though the car had been sold before you got to Blanchetown.
ANo, we used it to actually move to Blanchetown.
ADJOURNED 1.01 P.M.
QYou told us before lunch you assumed that Mr Lutt and/or Mr Mead were going to get [the transfer of registration document].
AYeah, I assumed that they were going to get it, yeah.
QOn what did you base that assumption.
AI told them.
QWhat did you think when you were asked to chase up the expiation and the medical records.
AWell, the expiation notice was the fine.
QYes, I understand it was the fine, but what did you think when you were asked to chase up details regarding the fine.
ARelevant for the sale of the vehicle.
QDid you wonder why it was you were being asked to chase up the expiation notice, but Mr Lutt or Mr Mead were going to chase up the transfer of registration.
AI did wonder why I had to do any of that, yes.
QWondered why you had to do anything.
AYes.
QWhy did you wonder.
AI thought it was lawyers’ duties to provide that information for the courts.
QDid you wonder why you were being asked to get some things and why, seemingly, you weren’t being asked to get other things.
ANo.
QYou just assumed that they were going to get some of the documentation you’d asked them to get, but we’re going to get you to chase up other documentation.
AI believed they were taking the correct steps - correct steps for me.
QOn what did you base that belief.
ABecause I didn’t know how the system worked, and I knew that they were eant to be fighting for me, for my justice.
The short re-examination was as follows:
QPrior to 28 June 2018 you had made contact with the Berri registry of the motor vehicle department.
AYeah.
QThen on 28 June, that’s when you went and obtained the notice of disposal of the vehicle.
ADisposal, yes I did.
PEEK J
QYou told us this afternoon that you scanned the disposal document into your computer and sent it to your mother, Hilda Helps. Do you remember telling -
AYes, I believe so.
QWhy did you do that.
ABecause my mum had all the paperwork in her computer and she was taking care of filing it all for me, every piece.
QRight, and did you expect her to do anything other than just file it in her computer.
ANo.
QSo what was your plan as to how you would get that information to your lawyers, if you had a plan about it.
AI did not have a plan. I just thought next [time] I catch up with them I’ll submit it to them but.
NO FURTHER QUESTIONS
Some of the matters touched upon here will be revisited below.
PART 2: A “SECOND OR SUBSEQUENT APPEAL AGAINST CONVICTION” – S 159 CPA
The jurisdiction to allow a second or subsequent appeal against conviction was introduced in South Australia in 2013 by the enactment of s 353A Criminal Law Consolidation Act 1935 (CLCA). For reasons that are unclear, that provision was later repealed and a new provision in identical terms[10] was enacted as s 159 CPA, which provides as follows:
[10] This appears to be the first application under the current legislation. As far as I am aware, there were four applications under s 353A CLCA. The first two applications, R v Keogh(No 2) (2014) 121 SASR 307 and R v Drummond(No 2) [2015] SASCFC 82 each resulted in a successful appeal and the ordering of a re-trial. The third application, R v Van Beelen, was unsuccessful, both in the Full Court: (2016) 125 SASR 253, and on further appeal to the High Court: (2017) 262 CLR 565. The fourth application in R v Bromley [2018] SASCFC 41 was unsuccessful in the Full Court. Unfortunately, the numbering of the legislative provisions is now entirely different and therefore reference to the decisions on the previous provisions becomes difficult and tedious. In some of the extracts below, references to the previous provisions are accompanied by inserted references to the current provisions in italics.
159—Second or subsequent appeals
(1)The Full Court may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.
(2) A convicted person may only appeal under this section with the permission of the Full Court.
(3) The Full Court may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice.
(4) If an appeal against conviction is allowed under this section, the Court may quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial.
(5) If the Full Court orders a new trial under subsection (4), the Court—
(a) may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but
(b) may not make any order directing the court that is to retry the person on the charge to convict or sentence the person.
(6) For the purposes of subsection (1), evidence relating to an offence is—
(a) fresh if—
(i) it was not adduced at the trial of the offence; and
(ii) it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and
(b) compelling if—
(i) it is reliable; and
(ii) it is substantial; and
(iii) it is highly probative in the context of the issues in dispute at the trial of the offence.
(7) Evidence is not precluded from being admissible on an appeal referred to in subsection (1) just because it would not have been admissible in the earlier trial of the offence resulting in the relevant conviction.
The present grounds of appeal
Mr Moen originally purported to file five grounds of appeal, with most of Ground 2 and all of Grounds 3, 4 and 5 asserting complaints based on evidence that was before the Court in the second trial. Of course, this is impermissible as appears on the face of the legislation reproduced above. In R v Keogh (No 2), the Court correctly summarised the matter thus:[11]
80. Section 353A(1) of the Criminal Law Consolidation Act provides that three essential conditions be established before the Full Court will have jurisdiction to hear a second appeal. There must be before the Court evidence that: is fresh within the meaning of section 353A(6)(a); is compelling within the meaning of section 353A(6)(b); and should, in the interests of justice, be considered on an appeal. Any one piece of evidence relied on to found jurisdiction must satisfy all three requirements. It may be that there is only the one essential condition comprised of these three elements. We will refer to this one essential condition under section 353A(1) as the “jurisdictional fact”. The jurisdictional fact must be satisfied by an applicant, who bears the onus of proof in this respect, on the balance of probabilities.
…
85. The only available ground of appeal pursuant to section 353A is that there was a substantial miscarriage of justice. The Court hearing a permission application must, at least, ask whether this ground is reasonably arguable. However, it is to be remembered that the permission process is a means by which the Full Court is able to manage its workload with a view, inter alia, to avoiding a full hearing of plainly unmeritorious appeals.
86. Unlike with respect to sections 352 and 353, an applicant for permission under section 353A(2) must do more than simply show that the single available ground of appeal – that there was a substantial miscarriage of justice – is reasonably arguable. An applicant will also, ultimately, need to establish to the Full Court’s satisfaction that it has jurisdiction to hear the appeal. Even if the permission court is satisfied that the single available ground of appeal is reasonably arguable, it would make no sense to have the Full Court conduct the appeal with a view to determining its merits if the case is one where the existence of the necessary jurisdictional fact is not reasonably arguable.
[11] (2014) 121 SASR 307, 330-331.
Mr Moen concedes that only Ground 1 and Ground 2.5 come within the purview of the relevant legislation. Ground 1 relates directly to fresh evidence concerning the conviction on Count 8 and Ground 2.5 pleads a consequential effect of a wrongful conviction on Count 8 upon the convictions on all of the other counts. The grounds are thus:
Ground 1 – The Suzuki Vehicle – Fresh Evidence
1.The verdict of guilty in respect of Count 8 was unreasonable and unsafe and the Applicant applies to adduce fresh new evidence by way of a disposal notice dated 28/06/2018 from the Department of Planning, Transport and Infrastructure for the Suzuki Vehicle (VOA402) evidencing such disposal took place on 12/12/2009 well before the alleged incident the subject of Count 8.
Particulars
1.1 This ground relates to Count 8 on the Information which alleges that the Applicant rubbed his penis against the complainant’s vagina whilst she was positioned on the bonnet of the Applicant’s Suzuki Vehicle (VOA402) in the garage/shed of the Blanchetown property when she was 15 years old, whilst wearing a dress given to her for her 15th birthday.
1.2 The prosecution case was entirely dependant on the uncorroborated evidence of the complainant.
1.3 In the First Trial and Second Trial the complainant testified that she was wearing a dress (aqua blue type dress) she got for her 15th birthday which indicated that the alleged offence took place after 04/04/10.
1.4 The learned trial judge held that she was satisfied beyond reasonable doubt that the Applicant rubbed his penis against the complainant’s body when she was positioned on the bonnet of the Applicant’s Suzuki Vehicle in the garage in Blanchetown. In addition the complainant testified that the Applicant had the Suzuki Vehicle the whole time she lived at the Blanchetown property.
1.5 The learned trial judge further in accepting the complainant’s evidence held the complainant gave a detailed account of the incident, the description of her position on the vehicle and her thoughts during the alleged offending.
1.6 The subject Suzuki Vehicle was sold and disposed of prior to the date of the alleged offence and well before the complainant’s 15th birthday (DOB 04/04/10). [sic DOB 04/04/1995]
1.7 The evidence on the defence case was that the Suzuki Vehicle was kept in the driveway or at the front of the Blanchetown property and not in the shed, that it had been sold and disposed of well before the alleged incident and that the complainant had fabricated the allegation in respect of Count 8.
1.8 The trial judge discounted the evidence of the Applicant, [DT] and WN when they testified that the Suzuki Vehicle was sold/disposed of 4 months before the alleged offence in 2010 and materially it was sold/disposed of in 2009 in order to pay for a fine of driving unregistered. Indeed the learned trial judge rejected beyond reasonable doubt [DT]’s evidence and that of WN that the Suzuki Vehicle was sold/disposed of in December 2009 to pay for an expiation notice. A copy of the expiation notice was tendered in the Second Trial.
1.9 The learned trial judge held that the tendering of an expiation notice did not speak directly to the sale of the Suzuki Vehicle and it did not cause the learned trial judge to have any doubt about the truthfulness and reliability of the complainant’s evidence on this topic.
1.10 Since the trial a copy of the disposal notice pertaining to the Suzuki Vehicle has been obtained from the Department of Planning, Transport and Infrastructure dated 28/06/18 which shows the Suzuki Vehicle was in fact sold on 12/12/09 (the “fresh/new evidence”).
1.11 The above fact proves and corroborates the evidence given by the Applicant, [DT] and WN when they testified that the Suzuki Vehicle had been sold/disposed of prior to the alleged incident.
1.12 With due enquiry by the prosecution, this fact pertaining to the fresh/new evidence could have been clarified either prior to or during the trial by way of an enquiry with the Department. Although not a ground of appeal there was no doubt a prosecutorial duty to present the case fairly and completely and such an enquiry would have seen the case being presented fairly and completely for the Applicant.
1.13 No enquiry had been undertaken by the representatives for the Applicant prior to the trial in regards to the disposal notice being obtained from the Department of Planning, Transport and Infrastructure.
1.14 The fresh/new evidence was not available to the Applicant at the time of trial.
1.15 The fresh/new evidence raises more than a possibility that the complainant’s evidence in respect of Count 8 was not truthful nor reliable.
1.16 More over the fresh/new evidence goes to bolster the credibility, reliability and truthfulness of the Applicant, [DT] and WN.
1.17 Had the learned trial judge been aware of the fresh evidence at trial, such evidence would have impacted on her assessment of the complainant and as such the Applicant was precluded from Her Honour considering such evidence in making any such assessment of the complainant.
1.18 The implication of the fresh/new evidence should be considered by the Court of Criminal Appeal in its independent examination of the evidence pursuant to Ground 2 which effectively asserts that all of the verdicts are unreasonable, unsafe or not supported by the evidence, and as such the Applicant has suffered a substantial miscarriage of justice.
1.19 The doubt arising as a result of the fresh/new evidence in a case such as this would have to be considered as going to the overall credibility of the complainant and would therefore be relevant to all of the remaining Counts on the Information.
1.20 In light of the fresh/new evidence the question to be asked is whether there is now sufficient reliable evidence to come to a conclusion beyond reasonable doubt of the Applicant’s guilt in respect of Count 8.
1.21 The fresh/new evidence is compelling, reliable, substantial and highly probative of the issues in dispute at the trial. Further it could not be said that the verdict of guilty was inevitable.
1.22 The fresh/new evidence should in the interests of justice be considered by the Court of Criminal Appeal.
Ground 2 (Particular 2.5 only)
2.The guilty verdicts of the learned trial judge on all 10 Counts on the Information are unsafe, unsatisfactory and against the weight of the evidence such that a substantial miscarriage of justice has occurred.
…
2.5 The Applicant relies upon Ground 1 in that there is a doubt arising as to the complainant’s credibility in the context of Ground 1 which has a far reaching impact on the credibility pertaining to Counts 1-10 inclusive and gives rise to a verdict that would be unsafe and unsatisfactory and ultimately gives rise to a substantial miscarriage of justice.
The procedure adopted in the present application
In the present application, the single Judge referred the application to this Court, which in turn heard all of the necessary stages of the proceedings at one hearing. This corresponded to the procedure adopted in R v Drummond(No 2), as to which Blue J there stated: [12]
246. Accordingly, there are three separate stages that must be passed before a second appeal can be allowed under section 353A:
1.permission to appeal granted by the Court under subsection (2);
2.satisfaction by the Full Court that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal within the meaning of subsection (1); and
3.satisfaction by the Full Court that there was a substantial miscarriage of justice resulting in the conviction within the meaning of subsection (3).[13]
247. However, the Full Court has power to hear all three stages concurrently.[14] This occurred in the present case.
[12] [2015] SASCFC 82.
[13] R v Keogh (2014) 121 SASR 307 at [82], [88], [118] and [119] per Gray, Sulan and Nicholson JJ.
[14] R v Keogh (2014) 121 SASR 307 at [80]-[89] and [96] per Gray, Sulan and Nicholson JJ.
PART 3: THE FIRST TRIAL AND THE FIRST APPEAL
Although the first trial and the first appeal are largely historical, it is useful to know what there occurred concerning Count 8. The first trial commenced on 16 February 2016 and concluded on 24 February 2016. Judgment was then reserved and later delivered on 15 March 2016.
CN, Helps, DT and WN gave evidence at the first trial, including as to matters pertaining to Count 8.
CN testified that Count 8 was committed while she was sitting on the bonnet of the Suzuki in the garage at the Blanchetown property. She said that it had a manual transmission, was yellow, and there was a part of the roof that was white – over the back seats – that could come off the car. CN likened the vehicle to “a four-wheel drive … bush buggy type thing”.
At all times, Helps has denied that any such incident occurred at all. At the first trial, in addition to that denial, it was an important forensic contention by the defence that it was highly unlikely that Count 8 could have occurred as alleged. The bonnet structure had been heavily modified and Helps gave detailed evidence about those modifications which had been made when the family were still at the Kurralta Park property. There were two important aspects.
First, he had replaced the original motor with a larger motor; this involved removing the central support from the inside of the bonnet to make room, which meant that there was very little support for the bonnet. He said that the bonnet was “just a skull built on” and that when driven, the bonnet would “wriggle around” and “almost flap in the wind”.
Second, Helps had fitted a large air scoop[15] to the centre of the bonnet, and this would have made it very difficult, if not impossible, for CN to have sat on the bonnet as she alleged.
[15] An air scoop is a raised component on the bonnet which facilitates the flow of air directly into the engine.
A further important matter was that in cross-examination at the first trial, CN stated that Helps had the Suzuki at the Kurralta Park property and that she recalled him working on it in the shed there. However, she could not remember the air scoop or any other modification to the bonnet. Indeed, she described the bonnet as looking “like a normal car”.
As for the circumstances in which Count 8 occurred, CN stated that her weight at the age of 14 or 15 was “heavy”, being about 80 kilograms, and that she was sitting with her bottom almost off the edge of the car, facing Helps.
Thus, defence counsel in closing address emphasised:
… Your Honour will see my cross-examination of that at pp.200-230. The important thing about the car is that this was an incident you would expect her to remember. In particular she’s placed on that bonnet. It seems incredible. She doesn’t describe the bonnet, is given every opportunity to do so. It is quite a prominent feature of the bonnet. If it had happened you would expect her to have felt it, if my client put all of her 80 kilos on the bonnet. … In my submission that’s quite incredible in that she would not have described that this bonnet had this prominent feature. …
The prosecution also adduced evidence of additional uncharged acts alleged to have involved the Suzuki at the Blanchetown property. CN testified that Helps would take her out in the Suzuki, into the bushland in Blanchetown, where there would be touching and kissing. She stated that these trips involved both driving lessons and collecting firewood. The flavour of this evidence was clearly that these bush drives in the Suzuki at the Blanchetown property occurred over a considerable period of time. Helps agreed in his evidence that he did take CN out driving in the Suzuki to teach her how to drive and/or to collect firewood. He denied that any touching and kissing occurred.
At the first trial, CN testified in evidence in chief at length concerning the commission of all 10 counts and various other topics. Amongst her evidence in chief as to Count 8 was the following short question and answer:
QDo you remember what you were wearing on that day.
AAqua-type, blue-type dress. I wore it all the time. I got it for my 15th birthday.
However, although it was evident that it was the prosecution case that Count 8 occurred after CN’s 15th birthday, the implications of that answer would not have been apparent unless one knew the sale date of the Suzuki.
During her closing address, the prosecutor submitted that CN’s failure to recall the air scoop on the bonnet was not an inconsistency and there was “nothing to be made” of it. She maintained that it was still possible for Count 8 to have occurred in the way CN described, despite the existence of the air scoop and the structural modifications to the bonnet described above.
Ultimately, Judge Stretton accepted the evidence of CN and made the following findings:[16]
453. In relation to count 8, the court finds proven beyond reasonable doubt that the accused between 4 April 2010 and the 21st of July 2010 [Footnote 257 here appears, as to which see below] at Blanchetown, in the context of the complainant having made a number of requests to be taught how to drive a manual car, in the shed at the rear of the family property lifted the complainant on to the edge of the bonnet of his Suzuki 4WD, and rubbed his penis against the outside of the complainant’s vagina.
454. The court finds proven beyond reasonable doubt that the accused rubbing his penis against the complainant’s vagina was intentional, unlawful and occurred in circumstances of indecency which plainly involved a sexual connotation. The conduct was conduct which, by any reasonable contemporary standards, can only be described as indecent. As the complainant was a child and legally incapable of consenting there was no consent, nor was there any other lawful basis or excuse for the touching.
455. The court finds that each element of the offence of indecent assault is proven beyond reasonable doubt.
456. The court finds proven beyond reasonable doubt that at the time of the offence the complainant was under the age of 16 years. [Footnote 258 here appears, as to which see below] [Emphasis added]
[16] The Queen v H, CS [2016] SADC 23 (Judge Stretton).
The Judge’s footnotes 257 and 258 to the above passage were as follows:
257. The dates agreed per P 1 [the list of agreed facts] when the complainant was enrolled in and attending school in Waikerie reflect the period the complainant was living in Blanchetown with the accused. The complainant gave evidence the event occurred during that time. Per P 1, the complainant turned 15 on 4 April 2010, and the complainant said she was wearing a dress that she had been given for her 15th birthday, which per P 1 agreed facts, was 4 April 2010. Accepting her evidence beyond reasonable doubt, this event occurred at some time between the complainant’s 15th birthday on 4 April 2010, and when she moved out of the Blanchetown house on around 21 July 2010.
258. Per P 1, the complainant turned 15 on 4 April 2010, and the complainant said she was wearing a dress that she had been given for her 15th birthday, which per P 1 agreed facts, was 4 April 2010. The offence could have been committed at any time after that date and prior to the complainant moving out of the Blanchetown house and leaving Waikerie High School in July 2010, so the complainant was 15 at the time of this offence.
Thus, the Judge here at [453] made a definitive finding beyond reasonable doubt that the accused, between 4 April 2010 and 21 July 2010, committed Count 8. That time frame postulated an earliest date of commission of 5 April 2010 which, of course, was long after the sale of the Suzuki on 12 December 2009, as we now know to be the fact.
The conduct of the first trial by the defence
Mr John Lyons, Helps’ counsel at the first trial, swore an affidavit in which he deposed that the only instructions he received from Helps concerning the Suzuki was regarding its bonnet, and that he was not instructed that Helps had in fact sold the Suzuki prior to the subject incident.[17] Bearing in mind that Mr Lyons is not here suggesting that he was never told that the Suzuki had been sold at some stage, I accept his evidence that he was never told that Helps had in fact sold the Suzuki prior to the subject incident.
[17] Affidavit of John Lyons, Exhibit R11.
While Mr Lyons would have learned at some stage that the Suzuki was no longer owned by Helps, that knowledge alone would not have alerted him to the significance of the precise date on which it had been sold. The prosecution material available to Mr Lyons did not give any precise date for the commission of Count 8 beyond the range in the Information reproduced above, “between the 31st day of December 2008 and the 1st day of January 2011 at Blanchetown”. That date range for the commission of the offence would not have alerted Mr Lyons to the fact that the Suzuki had been sold shortly prior to 31 December 2009.
I make no finding of incompetence against the practitioners involved in the first trial, Kudra & Co (solicitors at Berri) and Mr J Lyons (of counsel).
The first appeal
Unfortunately, the lack of comprehension concerning the Suzuki evidence continued in place throughout the period of the first appeal. While the Court of Criminal Appeal was aware of the timing of matters as found by Judge Stretton, there was simply no suggestion in any of the material before the Court that Helps had sold the Suzuki before the occasion of Count 8 (and no point was taken concerning Count 8 in this regard).
On 23 December 2016, the first appeal was allowed on the basis of fresh evidence relating to a count other than Count 8 (and which has no direct bearing upon matters presently under consideration). A re-trial of all counts was ordered.
PART 4: THE SECOND TRIAL AND THE SECOND APPEAL
In Van Beelen v The Queen[94] the High Court, referring to the predecessor provision to s 159, said that it manifests an intention that finality yield in the face of fresh and compelling evidence which, when taken with the evidence at the trial, satisfies the Full Court that there has been a substantial miscarriage of justice.[95] Recognition of that legislative intention however does not detract from the need to prove that there is evidence which is fresh within the meaning of s 159(6)(a)(ii) in order to invoke the Full Court’s jurisdiction to hear a second or subsequent appeal against conviction.
[94] [2017] HCA 48, (2017) 262 CLR 565.
[95] [2017] HCA 48 at [27], (2017) 262 CLR 565 at 576.
In the passage extracted above from the Court’s reasons in R v Keogh (No 2), their Honours rejected the suggestion that there was any room for “latitude” or “flexibility” when determining an application for permission to bring a second or subsequent appeal on the grounds the evidence sought to be relied upon, even though not strictly fresh, nevertheless establishes that there has been a substantial miscarriage of justice. While the Court acknowledged that there remained some scope for latitude or flexibility in determining whether the evidence could with reasonable diligence have been adduced at trial, the issue remains whether the applicant can satisfy the Full Court that the evidence relied upon is “fresh” as defined in s 159(6)(a)(ii). The Court cannot lose sight of the text, context and purpose of s 159(6)(a)(ii).
Section 159(6)(a)(ii) is intended to impose limits on the availability of a second or subsequent appeal.[96] The purpose of s 159, like its predecessor s 353A of the CLCA, is to confer a limited jurisdiction upon the Full Court to hear a second or subsequent appeal against conviction by a person convicted on information. It qualifies the principle of finality previously enshrined in s 353 of the CLCA. Section 159(1), while conferring jurisdiction upon the Full Court, also constrains the circumstances in which the jurisdiction can be invoked. One of those constraints is that the jurisdiction can only be invoked, inter alia, upon an applicant satisfying the Court that there is fresh evidence that should, in the interests of justice, be considered on an appeal.
[96] R v Keogh (No 2) [2014] SASCFC 136 at [112], (2014) 121 SASR 307 at 338.
The strict application of the statutory test is necessary to maintain a robust threshold for the hearing of second or subsequent appeals in accordance with the principle of finality and the legislative intention in enacting s 159 (and its predecessor).[97] Accordingly, the strict application of the test means that the formulation in R vKeogh (No 2)[98] cannot be substituted for the text of s 159(6)(a)(ii).
[97] R v Keogh (No 2) [2014] SASCFC 136 at [102], (2014) 121 SASR 307 at 336.
[98] R v Keogh (No 2) [2014] SASCFC 136 at [112], (2014) 121 SASR 307 at 338.
That said, for practical purposes, it can be accepted that the text of s 159(6)(a)(ii) requires an objective assessment of whether, by the exercise of reasonable diligence, an applicant could have become aware of the evidence and adduced it at trial. However, even adopting the R v Keogh (No 2) formulation referred to above, the reference to the applicant (which is not found expressly in the text of s 159(6)) must be understood to encompass both the accused and his or her legal representatives. This is consistent with the usual principle that when deciding whether a litigant has exercised reasonable diligence for the purpose of an application to admit further evidence on appeal, the actions and inactions of his legal representatives are to be attributed to him, and hence are part of the enquiry.[99] Or, as Gleeson CJ put it, in the context of a common form criminal appeal, in a commonly cited passage from his reasons in R v Birks:[100]
As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
[99] Hampson v Hampson [2010] NSWCA 359 at [33]-[39] (Campbell JA, Giles JA and Handley AJA agreeing).
[100] R v Birks (1990) 19 NSWLR 677 at 685.
It cannot be the case that an accused can obtain a second or subsequent appeal by sitting supine, or relying on his or her lawyers, and then contending after conviction and an unsuccessful appeal that he or she could not, with the exercise of reasonable diligence, have obtained the evidence and adduced it at trial. An objective assessment of what the applicant could reasonably be expected to have done in all of the circumstances leading up to and including the trial, must include the fact that the applicant did or did not have lawyers acting for him or her.
In the context of common form criminal appeals, it has been acknowledged that, despite this general rule, and despite the inability to establish that the evidence could not with reasonable diligence have been adduced at trial, the defendant may nevertheless be able to establish a miscarriage of justice warranting the appellate court’s intervention.
However, in the context of a second or subsequent appeal pursuant to s 159 of the CPA, the statutory test does not permit the Court to bypass the requirement that evidence be fresh within the meaning of s 159(6)(a)(ii). Unlike with a common form criminal appeal, establishing a miscarriage of justice is not sufficient.
There may well be circumstances where it is not appropriate to attribute an applicant for permission under s 159 with the actions or inactions of their legal representatives. Examples may be where lawyers have actively misled the applicant as to enquiries made or a witness not being available. Allowing for such a possibility would be consistent with the usual principles governing the attribution of knowledge and conduct, and the area of latitude or flexibility that the Court in R v Keogh (No 2) acknowledged to exist even when determining whether evidence is fresh for the purposes of an application to bring a second or subsequent appeal under s 159. However, in accepting that possibility the Court cannot impermissibly dilute the importance of an applicant establishing the jurisdictional fact which imposes the limit on the Court’s jurisdiction to hear second and subsequent appeals as intended by Parliament.
The critical question is whether the Suzuki evidence could not, even with the exercise of reasonable diligence on the part of the applicant and his lawyers, have been adduced at the second trial.
The second trial commenced on 12 December 2017. We are satisfied on the evidence that before the second trial the applicant recognised that the Suzuki evidence was relevant to one of the charges of aggravated indecent assault being count 8 on the information. We make that finding notwithstanding the unsatisfactory nature of the applicant’s evidence on this topic. The applicant gave evidence that some months before the second trial he asked his lawyers, Mr Lutt and Mr Mead SC to obtain the transfer of registration documentation or the disposal notice (the notice). Mr Lutt had no recollection of such instructions being given. His notes were exhibited to Mr Mead’s affidavit.[101] Those notes record conferences on 20 November 2017 and 30 November 2017. The notes do not record any instructions given by the applicant that Mr Lutt (or for that matter, Mr Mead) was to obtain the notice. The instructions given by the applicant on those dates evidence uncertainty concerning the date of the sale of the Suzuki in the weeks leading up to the second trial. It is not necessary to resolve the issue of whether the applicant instructed Mr Lutt (or Mr Mead, who was not cross-examined on his affidavit) to obtain the notice. If the applicant’s evidence on this topic is accepted, that evidence demonstrates that the applicant was aware of the significance of the notice and wanted it adduced at the second trial or at least wanted his lawyers to consider whether it should be placed into evidence.
[101] Exhibits GM-1 and GM-2.
The applicant gave evidence that between the second trial judge reserving her judgment and the delivery of verdict, he applied online for a copy of the notice in or about April 2018. Notwithstanding his cognisance of the significance of the document, during the course of the second trial he made no enquiry of his lawyers as to whether they had the document in their possession or why it was not being put before the Court. Plainly, by the time of the second trial, the date of disposal of the Suzuki was material. That is why evidence was adduced of the expiation notice. The expiation notice was a foundation for the defence case that the Suzuki was disposed of at a time prior to the alleged offence that was count 8.
On the other hand, if the applicant did not give instructions to Mr Lutt or Mr Mead to obtain the notice before the second trial, that does not avail him as, for the reasons just explained, the applicant was aware of the significance of the notice and, even after the judge reserved judgment, took steps to obtain it. All of this is highly relevant to the question of whether the document could, with the exercise of reasonable diligence on the part of the applicant, have been adduced at the second trial. Whatever the true position, neither scenario evidences the exercise of reasonable diligence on the part of the applicant.
That it could have been adduced, at the very least at the second trial, is demonstrated by the ease with which the applicant subsequently obtained the evidence by attending at the office of Motor Registration Services in Berri and obtaining a copy of the disposal notice of the Suzuki vehicle. The evidence establishes that the applicant was plainly alive to the relevance and significance of this evidence before the second trial. It is apparent from his conduct in subsequently obtaining a copy of the disposal notice that he understood that such a document might be available. He could have undertaken the inquiries that led to him obtaining that document at an earlier time. The applicant cannot transform the Suzuki evidence into “fresh” evidence within the meaning of s 159 by blaming his lawyers for the failure to obtain it earlier so that it could have been adduced at the second trial.
There is no suggestion to Mr Lutt deliberately concealed, or failed to obtain, the Suzuki evidence, or that he otherwise actively misled the applicant. He appears to have acted upon the mistaken understanding or assumption that because the applicant’s registration of the vehicle had lapsed by the time of its disposal, there would not be any transfer of registration documentation. While this mistaken assumption on his part was unfortunate, it falls short of the type of conduct which in our view might warrant its exclusion from consideration under s 159(6)(a)(ii). No doubt Mr Lutt, like the applicant, could have been more diligent, but that conclusion only reinforces the failure of the applicant to prove that the Suzuki evidence could not have been obtained earlier by the exercise of reasonable diligence.
In our view the Suzuki evidence could, with the exercise of reasonable diligence, have been adduced at the trial. Accordingly, it does not satisfy the test of fresh evidence for the purposes of s 159 of the CPA.
Conclusion
We would refuse permission to appeal.
8