Kirkland v The Queen

Case [2021] SASCA 14

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

KIRKLAND v THE QUEEN

[2021] SASCA 14

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Bleby)

25 March 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - WHAT CONSTITUTES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

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

Following a trial by judge alone, the appellant was found guilty of one count of maintaining an unlawful sexual relationship with a child. The complainant was the de facto step-daughter of the appellant. The appellant offended against the complainant on three occasions when she was approximately 13 years old. On each occasion, he sucked her breasts and touched her vagina and breasts. On the third occasion, he tied her up before assaulting her.

The appellant appeals against his conviction on the basis that the fair trial of the appellant miscarried due to the use made by the Trial Judge of evidence of the complainant’s mother, as well as the failure of the Trial Judge to provide adequate reasons. He further contends that the verdict was unsafe and unsatisfactory.

Held, per Lovell JA (Bleby JA agreeing) granting permission to appeal in respect of ground 3, allowing the appeal in respect of grounds 3 and 4, quashing the conviction and remitting the matter for retrial:

1.      The Trial Judge’s use of the complainant’s mother’s evidence in the circumstances constituted a breach of procedural fairness leading to a miscarriage of justice.

Held, per Kelly P (dissenting) dismissing the appeal in respect of grounds 3, 4 and 5:

1.      The Trial Judge’s remarks do not reveal any propensity reasoning or any error.

Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Procedure Act 1921 (SA) s 158; Evidence Act 1929 (SA) ss 12A, 13A(12), 13BA(6), 34CB, 34P; Juries Act 1927 (SA) s 7, referred to.

R v T, WA (2014) 118 SASR 382; R v Haak (2012) 112 SASR 315; R v W, CT [2019] SASCFC 18; JGS v The Queen [2020] SASCFC 48 ; Nicholls v The Queen (2005) 219 CLR 196; Baini v R (2012) 246 CLR 469; R v ADW (2002) 84 SASR 178; Nudd v The Queen (2006) 80 ALJR 614; Douglass v The Queen (2012) 290 ALR 699; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; Macks v Viscariello (2017) 130 SASR 1; R v Becirovic [2017] SASCFC 156; TKWJ v R (2002) 212 CLR 124, applied.
R v Turney (1990) 52 SASR 438; R v Sierke [2011] SASCFC 53; Cawthray…

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Kirkland v The Queen [2021] SASCA 14
Case
[2021] SASCA 14
Decision Date

CaseChat Overview and Summary

The case of *Kirkland v The Queen* was heard in the Court of Criminal Appeal of South Australia, with Kelly P, Lovell and Bleby JJ presiding. The appeal concerned a conviction for sexual offences against the appellant, who had been in a de facto relationship with the complainant's mother. The complainant alleged that the offending occurred between late 2018 and February 2019, when she was approximately 13 years old, and involved acts such as sucking her breast and touching her vagina over her clothes, with restraints used on one occasion. The defence argued that the sexual acts did not occur and sought to cast doubt on the complainant's evidence by highlighting inconsistencies and implausibilities.

The legal issues before the Court of Criminal Appeal included whether the trial judge erred in his evaluation of the complainant's reliability as distinct from her credibility, and whether the trial judge's reasons for his findings were adequate. Further grounds of appeal concerned the use of evidence from the complainant's mother regarding sexual restraints, with the appellant arguing that this evidence was improperly used to corroborate the complainant's account or for a propensity purpose that was not open to the judge. The appellant contended that the trial miscarried due to the judge's use of this evidence in a manner not foreshadowed by the prosecution or submissions.

Kelly P found that the trial judge's reasons, though brief, were adequate given the short nature of the trial and the single issue in dispute, and would have dismissed the appeal on all grounds. However, Lovell JA disagreed with Kelly P's conclusions on grounds 3 and 4, finding that the trial judge's use of the complainant's mother's evidence regarding restraints was problematic. Lovell JA considered that the combination of grounds 3 and 4 complained that the trial was unfair because the judge used the evidence in a way that was not opened by the prosecutor and was not the subject of submissions by counsel, implying the evidence was inadmissible if its sole purpose was to show propensity.

Lovell JA concluded that there was a breach of procedural fairness leading to a miscarriage of justice, and therefore would have allowed the appeal on grounds 3 and 4. The specific outcome regarding the appeal's allowance or dismissal was not fully detailed in the provided text, as Lovell JA indicated disagreement with Kelly P on certain grounds, while agreeing on others, and stated it was unnecessary to decide all grounds.

Orders

Orders of the court

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Background

Background to the litigation

On 9 November 2020, the Chief Justice granted permission to appeal on grounds 1, 2 and 6. The application for permission to appeal on ground 3 was referred to the Court of Criminal Appeal. Permission to appeal on grounds 4 and 5 was not required. Background In 2012, the appellant commenced a de-facto relationship with the complainant’s mother. The appellant lived in a country town in South Australia and the complainant’s mother lived in metropolitan Adelaide with her children. The complainant first met the appellant in January 2012. In 2015, the complainant’s mother moved into the appellant’s home in the country town. The complainant and the complainant’s younger brother moved with her. The complainant’s younger brother is four years younger than the complainant and suffers from attention deficit hyperactivity disorder (‘ADHD’). The appellant’s house had three bedrooms. The appellant and the complainant’s mother shared a bedroom and the complainant had her own bedroom. The complainant occasionally slept in her younger brother’s room due to pest removal and renovation works being undertaken in her bedroom. When she shared a room with her brother, she would not initially be put to bed in his room until he was asleep, as he had difficulty sleeping with other people in the room. As a result, the complainant was initially put to bed in the bedroom of the appellant and her mother. It was only when the complainant’s brother had fallen asleep that the complainant would move to her bed in his bedroom. At times, the complainant’s mother was not at the house during bedtime, as she would be out dancing. The complainant’s mother took up dancing in late 2018. The complainant’s evidence The offending took place in the appellant’s home between late 2018 and February 2019. The complainant was approximately 13 years of age. Two of the acts occurred in the appellant’s bed. One of the acts occurred in the complainant’s bed. The complainant’s evidence was received by playing two records of interview conducted by police on 19 February 2019 and 18 May 2020. Further evidence was led from the complainant at trial and she was cross-examined on pre-approved topics. During the first interview with police, the complainant asserted that the appellant had touched her inappropriately by sucking her breast and touching her vagina and breasts on multiple occasions. She said the appellant had tied her up with straps on his bed while her mother was out. The complainant stated that the appellant did the same things to her the other times he offended against her. The first occasion occurred in the complainant’s bedroom. The complainant stated that she had gone to the toilet and the appellant came into her bedroom and sat on her bed. The appellant then straddled her, lifted up her top and sucked her breasts. The complainant thought that this occurred in mid-2018. In evidence, the complainant stated that this incident was the second instance of offending and that her brother was asleep in his bedroom at the time. She also stated that her mother was out, but could not remember where she was.

Evidence

Evidence Before The Court

On the defence case, the complainant’s DNA was transferred from the bed to the straps, as the complainant sometimes slept in the bed. Evidence of the complainant’s mother about the restraints The complainant’s mother gave evidence that she and the appellant had acquired the restraints in November 2018. They were kept between the bed base and the mattress in the bedroom, or in a chest of drawers next to the bed. The Velcro restraints were used to restrain her wrists and feet during consensual sexual activity. When they were around her wrists, they allowed for limited movement. She stated that the rope restraints were used to tie her hands behind her back and were kept in the chest of drawers. In cross-examination, the complainant’s mother said she did not recall ever catching the complainant ‘snooping around’ in the bedroom. She also clarified that there was no elastic component to the Velcro restraints. The defence case The appellant exercised his right to decline to call or give evidence at trial. The defence case was that the sexual acts did not occur. To cast doubt on the prosecution case, the defence identified aspects of the complainant’s accounts that were either inconsistent or did not ‘ring true’. Relevantly, this included the fact that the complainant had every opportunity to come across the restraints previously and that it was implausible for the complainant to have kneed the appellant if she was being straddled. In addition, a number of other inconsistencies in the complainant’s evidence were highlighted, including the following: •In her first interview, the complainant said that the kneeing of the appellant ended the incident. However, in her evidence, the complainant said that after she kneed and injured the appellant, he continued to suck on her breast. •In her first interview, the complainant said the appellant offended against her four times but in her evidence, it was three. •The location and account of the first and second incident were reversed in her evidence as compared to her police interview. It was further submitted that there was no supporting evidence for the first two incidents and limited support for the third incident. The trial Judge’s findings Based on the evidence, the Judge was satisfied beyond reasonable doubt that on each of the three occasions, the appellant touched the complainant on the breasts, sucked or licked her breasts and touched the complainant in the area of her vagina over her clothes. His Honour was satisfied that on the last occasion, the appellant used restraints on the complainant. I now turn to discuss the grounds of appeal advanced by the appellant. Ground 1: Evaluation of the complainant’s reliability as distinct from her credibility The first ground of appeal is a complaint that the Judge erred in his analysis of the complainant’s evidence, by failing to deal with her reliability as distinct from merely considering issues as to her credibility. The appellant’s submission was that, in considering both the credibility and reliability of a witness, a Judge must undertake what counsel for the appellant described as ‘a two-stage enquiry’. The appellant complained that the Judge failed to identify any directions which he gave himself as to the complainant’s reliability or provide any reasons as to the enquiry he undertook to satisfy himself of the complainant’s credibility as well as her reliability. Further, the appellant complained that the trial Judge’s treatment of the various inconsistencies in the complainant’s evidence required more than ‘a very brief passing reference’, particularly in circumstances where the inconsistencies raised important questions as to the complainant’s overall reliability and credibility, which were at the centre of the prosecution case.

Decision

Reasons for decision

In summary, I consider that the Judge’s reasons, though brief, were adequate and reflected the fact that this was a short trial, in which only one matter was in issue. Conclusion For these reasons, I would dismiss the appeal on all grounds.LOVELL JA: I have had the advantage of reading Kelly P’s draft reasons. I gratefully adopt her Honour’s summary of the background facts. I also agree with her Honour’s reasons and conclusions in relation to Grounds 1 and 6 of the appeal. Regrettably I am unable to agree with her Honour’s conclusions in relation to Grounds 3 and 4. It is unnecessary for me to decide Ground 5. While I generally agree with her Honour’s reasoning in relation to Ground 2 it is unnecessary for me to decide Ground 2. Given that I agree with Kelly P’s reasons and conclusions in relation to Grounds 1 and 6, there are two issues that need to be considered. First, was there a breach of procedural fairness in the trial process that led to a miscarriage of justice. Secondly, were the Trial Judge’s reasons adequate. Grounds 3 and 4 It is convenient to deal with Grounds 3 and 4 together. They state:3. The fair trial of the applicant miscarried as a consequence of the use made by the learned trial judge of the evidence given by the (complainant’s mother) as to the manner in which she and the applicant had used the “rope” and “restraints”, so as to corroborate or bolster the evidence given by the complainant.Particulars3.1 The prosecutor lead evidence from [the complainant’s mother] that the applicant would, with her consent, use sexual restraints upon her so as to tie a rope around her wrists and place her arms in various positions, including behind her back.3.2 The complainant’s evidence was that the applicant applied restraints to her wrists and then tied them behind her back.3.3 The learned Trial Judge noted in his reasons that the “account of the accused tying her wrists behind her back with a rope is unusual, but the mother said that is precisely what the accused it to her”.4. Further and in the alternative to ground 3, the learned Trial Judge erred in utilising the said evidence for a propensity purpose where such a purpose was not open and, or not the subject of submissions by counsel. The combination of Grounds 3 and 4, in effect, complain that the trial was unfair and miscarried as the Trial Judge used evidence in a manner not opened on by the prosecutor and not the subject of any submissions by either counsel at any stage during the trial. Implicit in the grounds of appeal is that the impugned evidence was inadmissible if its only use was for a proclivity or propensity purpose. The complainant gave evidence that on one occasion, the accused used restraints when sexually assaulting her. On this one occasion he used two different types of restraint. First, the accused used a restraint that had Velcro attached to it to bind the complainant’s hands to the bed. After the complainant freed herself from that restraint, the accused used a rope restraint to tie her hands behind her back. On the topic of restraints, the complainant’s mother in evidence stated:Q.Can I ask you please to turn to page number 11. I’m going to refer you to the top photograph there. Do you recognise those items. A.Yes. Q.What are they. A.They are other sexual restraints that we used. Q.Where were those restraints kept. A.In that top drawer on the black drawers. Q.Were they ever, to the best of your knowledge, left around the room, in the bedroom - A.No. Q.- when you weren’t using them. A.No. Q.They were always kept away in that top drawer. A.In the top drawer, yeah. Q.I’ll ask you a few questions just about that top black item that looks a bit like some rope. Do you see that. A.Yep. Q.Can you describe how they were used please. A.They were used around the wrist to restrain as well. Q.Were you a user of those ropes. A.Yes. Q.Did those ropes go around your wrist to restrain you. A.Yes. Q.When your wrists were restrained, what position would your arms be in. A.That would differ from, you know, every different - they’d either be on top of my head or behind my back. Q.I’ve finished with the photo booklets now, thank you.

Ratio Decidendi

Legal Principle Established

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