Helps v The Queen (No 3)

Case [2021] SASCFC 10

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…

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Helps v The Queen (No 3) [2021] SASCFC 10
Case
[2021] SASCFC 10
Decision Date

CaseChat Overview and Summary

This matter concerned an application for permission to appeal by the applicant, Helps, against his conviction. The dispute centred on the admissibility of new evidence, referred to as the "Suzuki evidence," which suggested it was impossible for the alleged sexual assault in Count 8 to have occurred as described by the prosecution. The application was heard by the Full Court of the Supreme Court of South Australia, comprising Peek, Stanley, and Doyle JJ.

The primary legal issue before the Court was whether the "Suzuki evidence" qualified as "fresh evidence" under section 159(6)(a)(ii) of the Criminal Procedure Act (CPA). This section requires that fresh evidence could not, even with the exercise of reasonable diligence, have been adduced at the trial. The Court also considered the compelling nature of this evidence under section 159(6)(b) of the CPA.

By majority, Stanley and Doyle JJ held that the Suzuki evidence did not satisfy the test of fresh evidence. Their Honours reasoned that the applicant's actions and the actions of his legal representatives indicated that the evidence, specifically the disposal notice for the Suzuki, could have been obtained with reasonable diligence prior to the trial. They noted that the applicant was aware of the relevance of the evidence and had obtained a copy of the disposal notice with ease. Peek J, in dissent, found the Suzuki evidence to be compelling and interpreted section 159(6)(a)(ii) to require a focus on the applicant's particular circumstances, allowing for greater latitude due to the gross incompetence of his legal representation.

Ultimately, by majority, the Court refused permission to appeal, concluding that the Suzuki evidence could have been adduced at the trial with reasonable diligence and therefore did not meet the criteria for fresh evidence under the CPA.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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. 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. 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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