JGS v The Queen

Case [2020] SASCFC 48

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

JGS v THE QUEEN

[2020] SASCFC 48

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Bampton and The Honourable Justice Lovell)

5 June 2020

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION

The appellant was convicted by a judge sitting without a jury of eight counts of Unlawful Sexual Intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA).

The appellant and complainant lived as part of a closed community referred to as “the Group”. The complainant alleged that the appellant was the leader of the Group and that her role was to “serve” the appellant. The complainant alleged that the appellant sexually abused her regularly. The complainant’s mother, who was also a member of the Group, gave evidence which supported some aspects of the complainant’s account. The truthfulness, credibility and reliability of the complainant and her mother were the main issues at trial.

The appellant appealed on numerous grounds, including that the Trial Judge erred by failing to appropriately assess the truthfulness, credibility and reliability of the complainant and her mother.

Held per Lovell J (Peek and Bampton JJ agreeing), allowing the appeal on Ground 2 and refusing permission on Ground 7, but dismissing the appeal on Grounds 1, 3, 4, 9, 10, 12 and 13:

1.The Trial Judge erred in his approach to the evidence relating to the truthfulness, credibility and reliability of the evidence of the complainant and her mother.

2.The verdicts on counts 1 to 8 are set aside. The matter is remitted to the District Court for a retrial.

Criminal Law Consolidation Act 1935 (SA) s 49(3); Evidence Act 1929 (SA) s 34CB, s 34R, s 34P; Criminal Procedure Act 1921 (SA) s 158(3), referred to.
Nicholls v The Queen (2005) 219 CLR 196 ; TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen (2006) 225 ALR 161; R v Birks (1990) 19 NSWLR 677; Crampton v The Queen (2000) 206 CLR 161; R v Moores (2017) 128 SASR 340; Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Singh [2019] SASCFC 51; R v Tran [2017] SASCFC 99; MWJ v The Queen (2005) 222 ALR 436; R v R, PA [2019] SASCFC 19; R v Bakhuis (2012) 112 SASR 536; R v Maiolo (No 2) (2013) 117 SASR 1; R v M, RS (2018) 131 SASR 24; R v Apostilides (1984) 154 CLR 563; Whitehorn v The Queen

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JGS v The Queen [2020] SASCFC 48
Case
[2020] SASCFC 48
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by the appellant, JGS, against his convictions for sexual abuse offences. The complainant alleged that the abuse began when she was 13 and continued for five to six years, occurring frequently. The prosecution's case relied heavily on evidence regarding the dynamics of a "Group" to explain how the appellant could commit these offences and why the complainant would submit to them. The appellant challenged the admissibility and use of this "Group dynamics" evidence, arguing it was presented with sinister overtones and used to improperly suggest grooming. The appeal was heard by Peek, Bampton, and Lovell JJ.

The central legal issues before the court were whether the Trial Judge erred in law by failing to properly direct himself, or alternatively failing to heed any direction, regarding the permissible and impermissible use of evidence of discreditable conduct or character, specifically in relation to section 34R of the Evidence Act 1929 (SA). The appellant also argued that the verdicts were unreasonable or insupportable having regard to the evidence, and that there was a lack of corroboration for the complainant's account.

The Full Court found that while the Trial Judge's findings on the "Group dynamics" were critical to his reasoning for conviction, there were significant flaws in his reasoning process, particularly concerning the assessment of the complainant's evidence and the lack of corroboration. Although the Trial Judge did not find the verdicts to be unreasonable or insupportable in themselves, the Court identified an inadequacy in the reasoning that amounted to an error of law, leading to a miscarriage of justice. The Court noted that the Trial Judge's assessment of the complainant's credibility and reliability was undermined by errors in his reasoning, particularly in relation to the accumulation of perceived "mistakes" and the lack of corroboration.

Consequently, the appeal was allowed, the convictions on counts 1 through 8 were set aside, and the matter was remitted to the District Court for a retrial before a different judge on those counts.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Although only charged with nine counts, the complainant gave evidence that the sexual abuse began when she was 13 and persisted for the ensuing five to six year period. The complainant alleged that the appellant, apart from times when he went away, regularly sexually abused her. Often the sexual abuse occurred more than three times a week and sometimes twice a day.The Background Evidence Before turning to consider the evidence in relation to each count, it is necessary to discuss the background evidence relating to the Group. The Trial Judge was asked to rule pre-trial on the admissibility of certain evidence. To assist in that process the prosecution opened the case prior to the Trial Judge considering the questions of admissibility of evidence. The prosecutor, during his opening, stated:The evidence about these group dynamics and, as opposed to a normal family dynamic, will I hope assist your Honour to understand how the (appellant) could commit these offences whilst living within this group that included the complainant's parents. That is, from his perspective, how he would expect to get away with it and continue to get away with it and from hers, why she would submit to what was being done to her, despite her parents being close at hand. The prosecutor outlined in some detail the “dynamics” of the Group that he alleged were relevant. Mr Edwardson QC, senior counsel for the appellant at trial, accepted that many of the matters alleged were relevant and admissible (although denied). However, he submitted that the prosecution was not entitled “to impose on the court the prosecution’s view or sinister overtones that he says arise from an unorthodox family”. That is, the prosecution was not entitled to present a case that the Group dynamics meant members of the Group groomed the complainant for the appellant to have sex with her. That was an entirely appropriate submission. In the event much evidence was led from the witnesses about the Group dynamics. The Trial Judge made numerous findings about the Group dynamics; the findings were generally in line with the complainant’s, and her mother’s, evidence. Evidence given by the appellant, and some of his witnesses, challenged the account of the Group dynamics given by the complainant and her mother. This evidence was generally rejected by the Trial Judge. Indeed, the Trial Judge on occasions used evidence of the Group dynamics to criticise the appellant’s evidence and the evidence of other witnesses. The evidence thus formed an important, if not critical, part of the Trial Judge’s reasons for finding the appellant guilty of counts 1-8. It is necessary for me to summarise the Trial Judge’s findings about the Group dynamics. The appellant challenged a number of these findings. I will deal with those challenges later in these reasons. However, in understanding how the Trial Judge reasoned towards the appellant’s guilt, it is necessary to understand the background that he found existed.The Group

Evidence

Evidence Before The Court

Many of the grounds overlap. Further, it is convenient to deal with grounds 1 and 2 last.Ground 3 and 4: s 34R of the Evidence Act The appellant complains that the learned Trial Judge erred in law by misdirecting himself, or alternatively in failing properly to direct himself in accordance with s 34R of the Evidence Act 1929 (SA) (Ground 3). Further, the appellant complains that the learned Trial Judge erred in law by failing to direct himself, or alternatively by failing to heed any direction, as to the permissible or impermissible use of evidence of discreditable conduct or character as being probative of the appellant’s guilt in respect of the charged acts (Ground 4). Section 34R(1) provides that, in the case of evidence admitted under s 34P as discreditable conduct evidence, the judge must “identify and explain the purpose for which the evidence may, and may not, be used”. Compliance with s 34R is mandatory, including when the trial is conducted without a jury. Whether there has been compliance with s 34R will depend on the circumstances of the case. For a direction under s 34R(1) to be sufficient it must identify the purpose for which that evidence may be used and the purpose for which it may not be used. Section 34R does not require the Trial Judge to instruct a jury using the precise language of s 34P. While the focus of consideration of this ground must be the terms of the Trial Judge’s directions, the adequacy of those directions must nevertheless be assessed and determined in the context of the way in which the trial was conducted, including the way in which the parties may have invited or encouraged the jury to use, or not use, the evidence of discreditable conduct. As Doyle J observed in R v Singh:[14]When identifying the permissible use(s) of discreditable conduct evidence, precision and specificity are generally desirable. This is so both so as to ensure that the jury are able to properly understand and employ the permissible use of that evidence, and so as to reduce the risk that they will stray into reasoning that involves an impermissible use of that evidence. It is for this reason that (in different factual contexts) general descriptors of the relevance of the evidence, such as “background”, “context” or “relationship” evidence, have been deprecated as seldom illuminating.It does not follow, however, that the articulation of the permissible use need be lengthy or detailed. Further, as the extent of the trial judge’s obligation under s 34R(1) is to be determined in the context of the conduct of the particular case, it does not extend to identifying or explaining every conceivable or theoretical line of reasoning, or every aspect of the permissible lines of reasoning. Nor does it extend to instructing the jury in logic, or in what would otherwise be obvious to them. Often a quite simple and succinct identification of the permissible and impermissible uses of the discreditable conduct evidence will be appropriate and sufficient, leaving it to the jury to determine whether and to what extent they are assisted by that evidence.(Footnotes omitted)[14] [2019] SASCFC 51 at 16 [69] - [70] (Peek and Parker JJ agreeing).

Decision

Reasons for decision

I would dismiss Ground 1, that the verdicts are unreasonable or cannot be supported by the evidence.Conclusion My findings on appeal relate to the inadequacy of the reasoning of the Trial Judge not that the issues were incapable of resolution by a trial judge. To put that another way the reasoning employed by the Trial Judge does not support the conviction even though there was another rational basis on which guilt might have been proved on the evidence. As discussed, the matters relied upon by the appellant are all matters that could be resolved by a trial judge. While it follows that there is an inadequacy in the reasoning of the Trial Judge as to the assessment of Vic S’s evidence and also in relation to the complainant’s evidence (as discussed under Ground 2), I do not think it can be characterised as an inadequacy of reasons constituting an error of law. The problem here is not the failure to give reasons but rather the flawed or erroneous nature of the reasoning as discussed in Ground 2. However, the flaws, as identified, go to the major issue in the case namely the credibility, reliability and truthfulness of the complainant. The errors in the reasoning of the Trial Judge are sufficient to give rise to a miscarriage of justice for the purpose of s 158(3) of the Criminal Procedure Act 1921 (SA). I would allow the appeal. I would set aside the convictions on counts 1, 2, 3, 4, 5, 6, 7 and 8. I would remit the matter to the District Court before a different judge for a retrial on those counts.

Ratio Decidendi

Legal Principle Established

I agree with the respondent’s submissions on this point. The Trial Judge did not find that no sexual intercourse occurred at Coober Pedy. He was not satisfied of the particulars alleged to comprise count 9. It is also clear that the Trial Judge, as he was required to do, considered the effect of the acquittal on count 9 when considering the other counts. He found that the acquittal on count 9 did not affect his overall finding that the complainant was truthful, reliable and credible. That finding was reasonably open to him on his assessment of the truthfulness, credibility and reliability of the complainant. However, this was another matter where the Trial Judge put to one side a mistake made by the complainant. As discussed earlier, he did not assess the effect of the accumulation of the “mistakes”.Lack of Corroboration of her Account The complainant gave evidence that the appellant sexually abused her over a five to six-year period often more than three times a week and sometimes twice a day. This abuse occurred regularly unless the appellant was away. The appellant submitted that there was a total lack of corroboration for the complainant’s allegations. I accept that there was no corroboration of the complainant’s account in the strict legal sense of the meaning of corroboration. However, there was support for the complainant from Vic S as to the way the Group operated and in particular that a number of women “served” the appellant. The appellant submitted that there was no suggestion that other members of the Group were aware of/or complicit in the sexual relationship between the appellant and the complainant. He submitted that it is improbable, and not reasonably possible, that such a relationship would not have become known to other members of the Group. The appellant submitted that Vic S did not suggest she had any awareness of the sexual relationship and when other members of the Group gave evidence, namely Dr P and Ol S, the prosecution did not suggest they were aware of the relationship either. The appellant submitted that the lack of knowledge of other members of the Group was particularly important given that the weight of the evidence was that the complainant did not begin to adopt the role of serving the appellant until late 2006. This was clearly a reference to a time after the birth of Em S’s daughter. I have dealt earlier in these reasons with the question of timing and the birth of Em S’s daughter. As I pointed out during that discussion, senior counsel for the appellant did not attempt with his questions to prove inconsistencies in the evidence of the complainant and Vic S. Senior counsel did not attempt to challenge their evidence in chief about when the complainant began to serve the appellant. Rather he made the point about the similarities in their errors. During the course of their evidence, neither the complainant nor Vic S (she was not asked) retreated from their position that the complainant started serving the appellant when she was 13. Whilst the submission can be made that their evidence on this topic was challenged and open to doubt, there was in fact no evidence that the complainant began to serve the appellant from 2006. The complainant did not retreat from her position as stated in evidence in chief and Vic S was not asked to reconcile her evidence in chief and her statement to the police. However, it is not correct to say that the weight of the evidence was that the complainant began to serve the appellant in late 2006. Indeed, the correct position is that there was no evidence that the complainant began to serve the appellant from late 2006.