JGS v The Queen (No 2)

Case [2022] SASCA 72

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

JGS v THE QUEEN (No 2)

[2022] SASCA 72

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)

28 July 2022

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

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

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

Appeal against convictions.

The appellant was tried by a jury of eight counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). He was convicted of six of those counts and acquitted of the other two.

The complainant is the appellant’s niece. The prosecution case was that the appellant started to abuse her sexually when she was 13 and continued to do so until she was 18. The alleged offending occurred in the context of a group living arrangement, described by its members as the ‘Ideal Human Environment’. The group included the extended family of the appellant; the prosecution case was that the appellant was the leader of the group.

The issues on appeal are:

•whether the verdicts of guilty are unreasonable or cannot be supported having regard to the evidence (Ground 1);

•whether certain documentary evidence of initial complaint was wrongly admitted under s 34M of the Evidence Act 1929 (SA) (Ground 2);

•whether the trial judge erred in failing to direct the jury adequately about the state of satisfaction required for them to convict with respect to each count (Ground 3) and misdirected the jury as to the burden and standard of proof (Ground 8);

•whether evidence of certain witnesses, namely MS and RB, was wrongly admitted (Ground 6);

•whether the trial judge failed to direct the jury adequately in accordance with s 34R of the Evidence Act as to the permissible use of uncharged acts that post-dated the charged acts (Ground 7); and

•whether the trial miscarried on account of apprehended bias of a juror, who sent a witness a message and a poem demonstrative of sympathy with the complainant, a month after the verdicts (Ground 9).

Held (by the Court), allowing the appeal on Ground 2 only, quashing the convictions and remitting the matter for retrial:

1.It cannot be said that the jury, acting rationally, ought to have had a reasonable doubt notwithstanding its acceptance of the complainant’s evidence.

2.A document authored by the complainant’s cousin, purporting to record what the complainant said to that cousin by way of initial complaint was inadmissible hearsay. Its admission could not be justified or excused by reason of the complainant’s adoption of its accuracy in oral…

Continue reading JGS v The Queen (No 2)

Sign in free to access the full text

Details
AGLC
JGS v The Queen (No 2) [2022] SASCA 72
Case
[2022] SASCA 72
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for unlawful sexual intercourse. The appellant, JGS, was found guilty by a jury of eight counts of unlawful sexual intercourse with his niece, HG, who was 13 years old at the commencement of the offending period. The alleged offending occurred over several years, commencing in 2003. The appeal was brought before the Full Court of the Supreme Court of South Australia.

The grounds of appeal raised a number of legal issues. These included whether the jury's verdicts were unreasonable or unsupported by the evidence, whether certain documentary evidence of initial complaint was wrongly admitted under section 34M of the *Evidence Act 1929* (SA), whether the trial judge failed to adequately direct the jury on the required state of satisfaction for conviction and misdirected them on the burden and standard of proof, whether evidence from certain witnesses was wrongly admitted, whether the trial judge erred in failing to adequately direct the jury on the permissible use of uncharged acts, and whether a miscarriage of justice occurred due to apprehended bias of a juror.

The Court dismissed the ground of appeal concerning the unreasonableness of the verdicts. It found that while the appellant had exhaustively identified inconsistencies and discrepancies in the complainant's evidence, both internally and by reference to other evidence, the jury, acting rationally, was entitled to assess the complainant's evidence as credible and reliable in respect of the counts on which it returned guilty verdicts. The Court noted that the inherent plausibility of the complainant's account and the lack of corroboration were matters for the jury to consider in the context of the hierarchical structure of the group and the appellant's role as its leader. The Court also addressed the admissibility of documentary evidence of initial complaint, noting that the trial judge admitted an edited portion of an online chat, ruling it admissible as an initial complaint if the complainant gave evidence that it constituted an accurate record of her statements. The complainant testified that the document was an accurate, word-for-word record of her statements to her cousin.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant abandoned Grounds 4 and 5 of his Amended Grounds of Appeal. The remaining issues raised on appeal are, broadly described:·whether the verdicts of guilty are unreasonable or cannot be supported having regard to the evidence (Ground 1);·whether certain documentary evidence of initial complaint was wrongly admitted under s 34M of the Evidence Act 1929 (SA) (Evidence Act) (Ground 2);·whether the trial judge erred in failing to direct the jury adequately about the state of satisfaction required for them to convict with respect to each count (Ground 3) and misdirected the jury as to the burden and standard of proof (Ground 8);·whether evidence of certain witnesses, MS and RB, was wrongly admitted (Ground 6);·whether the trial judge failed to direct the jury adequately in accordance with s 34R of the Evidence Act as to the permissible use of uncharged acts that post-dated the charged acts (Ground 7); and·whether the trial miscarried on account of apprehended bias of a juror (Ground 9). The information particularised the eight counts of unlawful sexual intercourse as having occurred over various periods, all commencing on 24 October 2003 when the complainant was 13. The longest period of time specified on the information within which an act of unlawful sexual intercourse was alleged to have occurred was between 24 October 2003 and 26 April 2006. The complainant gave evidence that the appellant started to abuse her sexually when she was 13 and continued to do so until she was 18, when she was able to remove herself from the living arrangements that had facilitated the abuse. The instances charged are necessarily described in the context of these living arrangements, aspects of which were in dispute at trial. The prosecution led evidence of these arrangements from the complainant, her mother and two other witnesses. The prosecution case about the circumstances of the offending: the group The complainant, HG, is the appellant’s niece. She spent her first 10 years in Adelaide with her parents, VS and BS. In 2000, when HG was 10, the family moved to a cattle station near Kununurra in Western Australia, to participate in what came to be described as ‘Project 2000’. This was an experimental project involving a group of people comprising the extended family of the appellant and some other families. Its aim was to create what was described as the Ideal Human Environment, or IHE. The appellant had researched and developed this concept following his return from the Vietnam war. The intention was to create an environment where people lived together harmoniously and without conflict. After about a year, the group relocated to the Adelaide Hills and in 2001 bought a large estate at Aldgate with several buildings. The significant buildings for the purpose of the prosecution case were a large house, known as ‘the Mansion’ and a separate, dormitory-style accommodation block, known as ‘the Barracks’. The appellant lived in the master suite on the upper floor of the Mansion. Certain other members of the group also lived in the Mansion. Others, including HG and her parents, lived in the Barracks.

Decision

Reasons for decision

It was for the jury to decide the impact that this evidence had upon the reliability and credibility of HG and VS. It was not necessarily significant, let alone fatal, to the credibility or reliability of either HG or VS on the central issues in the case.Conclusion on Ground 1 The jury, obviously enough, assessed HG’s evidence to be credible and reliable in respect of the counts on which it returned verdicts of guilty. The appellant has identified, exhaustively, inconsistencies, discrepancies and claimed inadequacies in HG’s account, both internal to her evidence and by reference to other evidence. Having regard to all of those matters, both individually as set out above and collectively, and on reviewing the totality of the evidence, we do not accept that the jury, acting rationally, ought to have had a reasonable doubt notwithstanding its acceptance of HG’s evidence.[10] We dismiss this ground of appeal.Whether the trial judge erred in admitting evidence of HG’s communications with her cousin, JS, as evidence of initial complaint within the meaning of s 34M of the Evidence Act (Ground 2)[10] Pell v The Queen (2020) 268 CLR 123 at [39]. The primary judge admitted, as evidence of initial complaint pursuant to s 34M of the Evidence Act, an edited portion of a document that purported to record statements HG made to her cousin, JS, in June 2012, over an online chat program called MSN. The statements in the document were generally referable to HG’s allegations at trial of sexual abuse by the appellant.[11][11] R v Place (2015) 124 SASR 467. HG did not retain a copy of the electronic exchange. On HG’s evidence, JS produced the document (either by copying and pasting or typing out the messages) and sent it to her via email, two weeks after their online chat. That is to say, the document did not comprise the original messages themselves; it was a reproduction by JS. The prosecution did not call JS to give evidence. The appellant applied to exclude the document. The primary judge ruled in the following terms:In this matter, I decline to exclude the evidence said to constitute the initial complaint as identified in the email sent from [JS] to [HG].I am satisfied that understood in the context of the prosecution allegation of the charged offences, the evidence can be properly admitted as an initial complaint. It is referable in a general way to the unlawful sexual conduct as alleged by the complainant.If the complainant gives evidence that the portion of the document constitutes an accurate record of the statements she made to [JS] as contained in that document, the document can be tendered as evidence of her statements to [JS] and thus admissible as evidence of initial complaint. I will give reasons for my decision in due course. The judge did not, in the event, give further reasons. That is not the subject of the challenge on appeal. HG gave evidence at the trial that JS was the first person to whom she disclosed that the appellant had sex with her, and that she told him this in 2012, via MSN. JS was living in Canada. She did not save the MSN chats to her computer; JS subsequently emailed her the document. She said that the edited document contained everything that she wrote to JS on MSN, word for word, with nothing left out, and that the date on the document, 20 June 2012, was accurate.

Ratio Decidendi

Legal Principle Established

To identify that there was a path open to guilt is not necessarily to speculate as to the reasoning that the jury must have undertaken. Neither does the volume of evidence led in defence guarantee a reasonable doubt. Further, if a complainant is proved wrong on a matter of detail, that does not necessarily require a reasonable doubt. What is or is not required in a given case can only be approached at the level of contextual detail.Inherent plausibility and lack of corroboration HG gave evidence that the abuse would occur up to three times in a day, ‘pretty much daily’ and that there were over 50 occasions when she would run a bath for the appellant, and this would lead to sex. No contraceptives were used; the only step preventive of pregnancy was her asking NP, at the behest of the appellant, about her cycle. The appellant urged the implausibility of these allegations first by reference to the living arrangements. Several defence witnesses contradicted HG’s account that DHS slept upstairs, and that HG had herself slept in an upstairs bedroom. The witnesses said that the room HG said she had slept in when serving the appellant was in fact occupied by AD, the partner of the appellant’s son HS. The appellant submitted that, at the very least, the number of people occupying the upstairs floor of the Mansion rendered implausible the allegation of sex up to three times a day. Similarly, the number of people who occupied the Barracks at any one time rendered implausible HG’s accounts of sex in that building. For this reason, the appellant submitted, HG’s evidence that the offending took place during the time of the Blackwater project could not be ‘dismissed as a mere imperfection in chronology’; it was integral to the plausibility of her account. Blackwater not having been on foot in 2003, the appellant submitted that it is quite improbable that other members of the group would not have become aware of the abuse, given its alleged frequency and duration. Further, the alleged frequency was inconsistent with HG’s account of her daily regime, which she explained: It was horrible. We would have to get up, we would have to do a list of exercises before we’d had breakfast, we’d have to do the chores, then we’d do line-up and then after line‑up we were just sent to do jobs. After we’d finished our jobs we’d get lunch and then back to jobs and then it would be generally bath, shower, dinner, meeting, repeat it the next day. The appellant also submitted that it was inherently improbable that he would take the risk of asking HG to speak to NP about when she could and could not get pregnant, given that she was 13, and this could easily expose the abuse. The risk would be that NP would report such a conversation at least to HG’s parents. NP denied that such a conversation ever took place. Moreover, it was inherently improbable that pregnancy would not occur if the abuse occurred with such frequency and duration. These complaints of inherent implausibility and lack of corroboration tend to decontextualise the evidence of HG. HG’s evidence was that the offending and its frequency occurred in the context of her role in serving the appellant. This occurred in the context of a hierarchical structure in which the appellant was the undisputed leader; his word was not to be contradicted. It was open to the jury to consider the plausibility of HG’s account of the abuse in the context of the evidence that she, VS, RB and MS gave about the structure and dynamics of the group, and the appellant’s unchallenged role as the leader of the group.