MJJ v The Queen
[2021] SASCFC 36
•31 August 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Leave to Appeal)
MJJ v THE QUEEN
[2021] SASCFC 36
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Kelly and the Honourable Justice Blue)
31 August 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - NOTICES OF APPEAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE
EVIDENCE - ADMISSIBILITY - EXCLUSIONS: PRIVILEGES - CLIENT LEGAL PRIVILEGE - LOSS OF PRIVILEGE - IMPLIED WAIVER
The appellant was convicted after a trial in the District Court in 2012 of one count of unlawful sexual intercourse and two counts of indecent assault committed against his daughter. An appeal against his conviction on one count of indecent assault was allowed but his appeal against his other convictions was dismissed in 2013.
The appellant has filed a notice of second appeal seeking permission to appeal again pursuant to section 159 of the Criminal Procedure Act 1921 against his convictions of unlawful sexual intercourse and indecent assault on the ground of discovery of four items of fresh evidence, namely:
1.paragraph 4 of a statement of clam filed in April 2015 in a victim of crime compensation proceeding in the District Court, in which it was pleaded, falsely, that the appellant was the father of the complainant’s child;
2.a medical report by a general practitioner, Dr Mario Athinodorou, dated December 2013 disclosing an unlawful sexual relationship between the complainant and her boyfriend;
3.a medical report by a psychologist, Sherri Hodgkiss, dated July 2014 stating that the complainant avoids being around men and cannot interact with men who look over 16 years of age; and
4.a witness statement taken from a potential witness by the appellant’s solicitors on 5 July 2012 just before the start of the trial.
In the course of the appellate proceeding, an issue arose whether there had been an imputed waiver of legal professional privilege over documents contained in the file of the complainant’s solicitors relating to the compensation claim. The appellant also sought permission to issue a subpoena to the Commissioner of Police for production of documents concerning missing persons reports in respect of the complainant going missing on 7 July 2011 and on 17 August 2011.
Held by the Court (refusing permission to appeal a second time):
1. By reason of the disclosure by the complainant’s solicitor, acting in accordance with her instructions, on the topic of whether she had been instructed by the complainant to plead in the compensation proceeding that the appellant was the father of the complainant’s child, there was an imputed waiver of privilege in relation to those documents contained on the solicitors’ file relevant to instructions by the complainant on the topic of the paternity of the complainant’s child (at [80]).
2. Permission to issue the proposed subpoena to the Commissioner of Police refused (at [92]).
3. On the evidence adduced on appeal, it is clear that the complainant did not instruct her solicitors that the appellant was the father of her child and the first item of asserted fresh evidence is not compelling within the meaning of section 159 of the Criminal Procedure Act 1921 (at [129]).
4. The second item of asserted fresh evidence is not admissible evidence and in any event is not compelling within the meaning of section 159 of the Criminal Procedure Act 1921 (at [141]).
5. The third item of asserted fresh evidence is not admissible evidence and in any event is not compelling within the meaning of section 159 of the Criminal Procedure Act 1921 (at [148]).
6. The fourth item of asserted fresh evidence is not admissible evidence and in any event is not fresh or compelling within the meaning of section 159 of the Criminal Procedure Act 1921 (at [164]).
7. Application for permission to appeal a second time refused (at [166]).
Criminal Procedure Act 1921 (SA) s 159; Evidence Act 1929 (SA) s 67C; Victims of Crimes Act 2001 (SA) s 18; Aged and Infirm Persons' Property Act 1940 (SA), referred to.
Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12; Australian Unity Health Ltd v Private Health Insurance Administration Council [1999] FCA 1770; Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; Helps v The Queen (No 3) [2021] SASCFC 10; Mann v Carnell (1999) 201 CLR 1; R v Keough (No 2) (2014) 121 SASR 307; Van Beelen v The Queen (2017) 262 CLR 565, considered.
MJJ v THE QUEEN
[2021] SASCFC 36
COURT OF CRIMINAL APPEAL: The appellant was convicted after a trial in the District Court in July 2012 of one count of unlawful sexual intercourse[1] and two counts of indecent assault[2] committed against his daughter S. He was also convicted of one count of aggravated assault[3] committed against his three year old son.
[1] Criminal Law Consolidation Act 1935 (SA) section 49(3).
[2] Criminal Law Consolidation Act 1935 (SA) section 56.
[3] Criminal Law Consolidation Act 1935 (SA) section 20(3).
In June 2013 the appellant’s appeal to this Court against his conviction on one count of indecent assault was allowed (the conviction being quashed) but his appeal against his other convictions was dismissed.[4]
[4] R v MJJ, R v CJN [2013] SASCFC 51, (2013) 117 SASR 81.
In August 2018 the appellant filed a notice of second appeal against his convictions of unlawful sexual intercourse and indecent assault pursuant to section 159 of the Criminal Procedure Act 1921 (the Criminal Procedure Act). He sought permission to appeal again on the ground of the discovery of “fresh evidence”, being the first item of evidence the subject of his substitute notice of appeal described below.
In November 2019 a single Judge refused permission to appeal a second time. The appellant requested determination by the Full Court of the question of leave.
In November 2020 the appellant filed a further notice of second appeal (the substitute notice of appeal) effectively in substitution for the August 2018 notice of appeal. He seeks permission to appeal again against his convictions of unlawful sexual intercourse and indecent assault on the ground of the discovery of four items of fresh evidence, namely:
1.paragraph 4 of the statement of claim filed in April 2015 by Ursula Matson of Scammell & Co, acting for S in a victim of crime compensation proceeding in the District Court, in which it was pleaded, falsely, that the appellant was the father of S’s child;
2.a medical report by a general practitioner, Dr Mario Athinodorou, dated December 2013 disclosing an unlawful sexual relationship between S and her boyfriend;
3.a medical report by a psychologist, Sherri Hodgkiss, dated July 2014 stating that S avoids being around men and cannot interact with men who look over 16 years of age; and
4.a witness statement taken from H by the appellant’s solicitors on 5 July 2012 just before the start of the trial.
In the course of this proceeding, the appellant issued a subpoena to Scammell & Co for production of its file in relation to the victims of crime compensation claim. Scammell & Co produced the file and claimed legal professional privilege over documents contained in it. We ruled that there had been an imputed waiver of legal professional privilege over certain documents contained in that file and these reasons include our reasons for that ruling.
In the course of this proceeding, the appellant sought permission to issue a subpoena to the Commissioner of Police for the production of documents concerning missing persons reports in respect of S going missing on 7 July 2011 and 17 August 2011. These reasons include our reasons for refusing permission to issue that subpoena.
Background
The complainant S is one of the children of the appellant and his partner M. The complainant was born in 1996.
The complainant gave evidence at trial of a course of sexual conduct by the appellant with her, commencing with touching her on the chest and vagina when she was about seven years old (about 2003) and progressing ultimately to sexual intercourse.
The complainant gave evidence of a specific occasion of sexual intercourse in the lounge room when she was about 14 years old (about 2010). This was the subject of the count of unlawful sexual intercourse of which the appellant was convicted.
The complainant gave evidence of a specific occasion when the appellant touched her on the breasts and vagina in her bedroom in February 2011. This was the subject of the count of indecent assault in respect of which the appellant’s first appeal was dismissed.
The complainant gave evidence that she ran away from home for about nine days (which other evidence established was on 7 July 2011) and returned home briefly. She then ran away a second time (which other evidence established was on 17 August 2011).
The complainant gave evidence that the last time that the appellant touched her sexually was on the night before she ran away the second time.
The complainant gave evidence that, when she ran away [on 17 August 2011], she spoke to A and B, who drove her to the police station. She gave a statement to the police, reporting the appellant’s conduct. From that day onwards, she lived in the care of A and B and did not return to her family home. A and B gave evidence at trial confirming these matters.
Later in the evening of 17 August 2011 the police arrested the appellant and charged him with offences committed against the complainant. He remained in custody until his trial and sentencing in 2012. He was charged amongst others with:
·one count of unlawful sexual intercourse on the occasion referred to at [10] above (of which he was convicted);
·one count of unlawful sexual intercourse on the occasion referred to at [11] above with a statutory alternative charge of indecent assault (his being convicted of the alternative indecent assault charge after the complainant gave evidence that she was indecently assaulted on that occasion but did not give evidence of intercourse); and
·one count of indecent assault (of which he was convicted but the conviction was quashed on his first appeal).
M was charged with two counts of procuring a child (the complainant) to commit an indecent act (with the appellant)[5] and three counts of aggravated assault (on the complainant and two of her brothers).[6]
[5] Criminal Law Consolidation Act 1935 section 63B(1).
[6] Criminal Law Consolidation Act 1935 section 20(3).
In July 2012 the joint trial of the appellant and M proceeded before a jury in the District Court. The appellant gave evidence denying all of the conduct the subject of the charges and the uncharged sexual conduct. The jury found the appellant guilty of the counts referred to above and found M guilty of all counts.
In September 2012 S discovered that she was 24 weeks pregnant, indicating conception in about March 2012.
In June 2013, as noted above, this Court dismissed the appellant’s appeal against the unlawful sexual intercourse conviction, the alternative indecent assault conviction and the aggravated assault conviction.
S retained Ms Matson of Scammell & Co to make a claim for compensation under the Victims of Crime Act 2001 (SA) (the Victims of Crime Act). In due course Ms Matson requested reports from Dr Athinodorou, Ms Hodgkiss and a psychiatrist, Professor Cherrie Galletly, for the purpose of the claim.
On 10 December 2013 Dr Athinodorou sent a medical report to Ms Matson. He said that he first saw S on 8 September 2012 and an ultrasound revealed that she was then 24 weeks pregnant. He added:
On reviewing her notes here at our surgery, she did see Dr Doan [sic] on the 4th September 2012, there is a note there stating that she was sexually abused by her father when she was little and that her father was now in jail and also the fact that she had a boyfriend, had intercourse with him and they broke up in May. The only other mention of sexual abuse that I could find in her notes was on a consult dated 25th February 2013 when she consulted with Dr George Isaac and he mentions a history of mental and sexual abuse since the age of 5.
The letterhead on which Dr Athinodorou wrote the report suggests that the reference to Dr Doan should in fact be a reference to Dr Julie Sloan.
On 3 July 2014 Ms Hodgkiss sent a medical report to Ms Matson. She said that S had been referred to her by Dr Isaac and she had conducted 13 sessions with S between July 2013 and July 2014. She recorded that S informed her that the abuse by her father commenced in 2003 when she was 7 years of age. She said that S continued to display significant symptoms of anxiety, depression and avoidance and safety habits. She expressed the opinion that S’s history had in part affected her ability to hold down her studies as well as employment. She said that S avoided being around men that reminded her of, or who may know, her father and got anxious and could not interact with men who looked over 16 years of age because it tended to make her think about her father.
Section 18 of the Victims of Crime Act required an application for compensation to be made in the first instance to the Crown Solicitor. Section 18(4)(a)(i) required the application to contain the information required by the regulations and section 18(4)(b) required it be verified by statutory declaration. This effectively dictated the form of the statutory declaration. One of the items of information required by the Victims of Crime (Statutory Compensation) Regulations 2004 (SA) was “(f) details of the nature and extent of the injury”.
Sometime before 1 September 2014 Ms Matson dictated a draft statutory declaration in the name of S, which was typed by her secretary to produce a first typewritten draft (draft 1). This draft (together with subsequent drafts) is one of the documents the subject of our waiver of privilege ruling. Paragraph 1(f) read:
(f) details of the nature and extent of the injury:-
Purely psychological injury
On 1 September 2014 Ms Matson made handwritten alterations to draft 1 and sent it by facsimile to her secretary in the firm’s other office (draft 2). Paragraph 1(f) read (handwritten deletions crossed through and additions underlined for identification):
(f) details of the nature and extent of the injury:-
Purelypsychological injury & various physical injuries & symptoms reflective of long term neglect during my childhood including teenage pregnancyMs Matson’s secretary typed the alterations and produced a further typed draft (draft 3). Paragraph 1(f) read:
(f) details of the nature and extent of the injury:-
Psychological injury and various physical injuries and symptoms reflective of long term neglect during my //youth?// including teenage pregnancy.
Ms Matson made handwritten alterations to draft 3 and gave it to her secretary to type up (draft 4). Paragraph 1(f) read (handwritten deletions crossed through and additions underlined for identification):
(f) details of the nature and extent of the injury:-
Psychological injury and various physical injuries and symptoms reflective of long term neglect during my
//youth?//childhoodincluding teenage pregnancy.Ms Matson’s secretary typed the alterations and produced a final version. Paragraph 1(f) then read:
(f) details of the nature and extent of the injury:-
Psychological injury and various physical injuries and symptoms reflective of long term neglect during my childhood.
On 4 September 2014 S executed the final version of the statutory declaration witnessed by Ms Matson. The application was for the maximum amount of compensation being $50,000. The statutory declaration named the offenders as the appellant and M; provided details of the charges, convictions and result of the appeal; and provided other information required under the Act. It attached the reports from Dr Athinodorou and Ms Hodgkiss.
On 15 October 2014 Professor Galletly sent a medical report to Ms Matson. She said that she saw S on 9 October 2014. She set out the history obtained from S, including that she underwent extensive physical and sexual abuse and neglect by her parents, being sexually abused by her father encouraged by her mother. She diagnosed S as suffering PTSD, severe anxiety disorder with panic attacks and Major Depressive Disorder. She said that S was vulnerable to further abuse and exploitation. The effects were long term and she was unlikely to be fit for any employment in the foreseeable future.
Ms Matson engaged in negotiations with the Crown Solicitor. Ms Watson in the Crown Solicitor’s Office had the conduct of the matter on behalf of the State. It was agreed that S would be paid the maximum sum of $50,000. Ordinarily the matter would have been resolved without the need for the institution of a court proceeding. However, Ms Matson was informed by S’s medical practitioners that her mental state was such that it was undesirable that she manage the compensation monies herself. Ms Matson therefore decided to institute a proceeding in the District Court so that an order could be made appointing the Public Trustee under the Aged and Infirm Persons Property Act 1940 (SA).
On 2 April 2015 Ms Matson instituted a proceeding in the District Court on behalf of S against the State of South Australia, the appellant and M seeking compensation under the Victims of Crime Act (the compensation proceeding). The Summons was accompanied by a four paragraph statement of claim (the first statement of claim). Paragraphs 2 to 4 pleaded:
2.Between 1998 and 2012 the plaintiff was a victim of 2 counts of Unlawful Sexual Intercourse and 2 counts of Indecent Assault at the hands of her father, the second defendant. Further the plaintiff was the victim of 2 counts of Procuring a Child to Commit an Indecent Act at the hands of her mother, the third defendant.
3.The second and third defendants have been convicted of and sentenced for the said offences.
4.As a result of one of the offences of Unlawful Sexual Intercourse, the plaintiff became pregnant and gave birth to this child. The plaintiff has suffered psychological injury as a result of all offences, the details of which are provided in a psychiatric report and a psychological report.
On 17 June 2015 Rocco Perrotta, a solicitor acting for the appellant, sent an email to Ms Watson drawing her attention to the erroneous statement contained in the first sentence of paragraph 4 of the first statement of claim. Ms Matson was subsequently made aware of the erroneous statement.
On 29 July 2015 Ms Matson filed a second statement of claim in which she deleted the first sentence of paragraph 4 (the second statement of claim).
On 1 October 2015 a District Court Master made an order approving the settlement of the compensation proceeding, granted (by consent) judgment for $50,000 plus costs in favour of S against the State and made an order appointing the Public Trustee to manage the judgment proceeds on behalf of the complainant under the Aged and Infirm Persons Property Act 1940 (SA).
On 8 August 2018 Mr Perrotta on behalf of the appellant filed the first notice of second appeal against the appellant’s convictions.
On 5 November 2018 Mr Perrotta on behalf of the appellant filed an interlocutory application, supported by an affidavit sworn on that day, in the compensation proceeding seeking permission to use the statutory declaration, Dr Athinodorou’s report and the two statements of claim in the appellate proceeding (if the implied Harman undertaking would otherwise preclude such use). Ms Matson was served with the application.
On 12 November 2018 the application came before Judge Slattery. Mr Perrotta appeared for the appellant. Ms Matson appeared effectively as amicus curiae because she had not been able to contact S to inform her of the application and she had finalised her involvement in the matter some years previously.
Ms Matson informed Judge Slattery that the only reason that the first sentence of paragraph 4 was included in the first statement of claim was that she misread a medical report. She said that she did not at any point receive instructions from S to the effect of that sentence and it was purely her mistaken assumption that the father of S’s child must have been the appellant.
Judge Slattery suggested that Ms Matson give evidence on oath to confirm her statements from the bar table, which she did. In her evidence, Ms Matson said that she regarded the statement of claim as a formality because the Crown Solicitor had already agreed the amount of the compensation and in any event would pay no heed to what was pleaded in the statement of claim. She said that, as a result, she did not exercise the care that she would normally have exercised in drafting a statement of claim or obtain her client’s instructions in relation to its content. Ms Matson was cross-examined by Mr Perrotta for the appellant.
Judge Slattery granted the appellant’s application releasing him from the implied Harman undertaking to the extent necessary.
Judge Slattery told the parties that the transcript of the evidence would be made available to the Full Court for the hearing of the appeal. It is common ground that Ms Matson did not have instructions to waive privilege in respect of her communications with S and there was no waiver of privilege by reason of the disclosures or evidence that Ms Matson gave. However, during the hearing of the appeal we ruled that there was an imputed waiver of privilege by S as a result of subsequent disclosures by Ms Matson within the scope of her instructions and the transcript of the hearing before Judge Slattery was tendered and received as evidence on the appeal.
On 19 December 2018 the appellant issued a subpoena in the appellate proceeding to Scammell & Co for production of its file. Scammell & Co produced the file and claimed legal professional privilege over documents contained in it.
On 15 April 2019 at 3.57 pm Mr Perrotta sent by email to Ms Matson a letter dated 15 April 2019. In the letter Mr Perrotta said amongst other things:
I renew my invitation to progress this matter informally by way of inspection of [S]’s file. I acknowledge that, if you have not already done so, you would require [S] to waive legal professional privilege for this to occur. I ask that you seek instructions from [S] in respect of the waiver of privilege. I also confirm my willingness to reach agreement with you concerning the non-disclosure to my client of certain parts of the file.
Ms Matson responded by email that her position had not changed and she would be overseas in the week commencing 23 April. Mr Perrotta responded by email asking Ms Matson whether she had obtained instructions from S on the question of waiver and if not to obtain them.
On 15 April 2019 at 5.10 pm Ms Matson responded by email in the following terms:
She does not want her Offender or even his solicitors who she does not trust looking through her confidential information in particular medical and hospital records. You can be assured [by] me that I have perused the file in great detail and she did not at any stage instruct me that the offender impregnated her. That was my mistake and she did not instruct me to submit the statement of claim that I did. I did that unilaterally without her instructions. I made a very silly error! I put you a notice of an application for costs and I am willing to apply for the cost to be paid by you personally.
On 28 August 2019 it was agreed between Mr Perrotta and Ms Matson that an independent barrister be asked to inspect the Scammell & Co file and identify whether there was any material on it from which it could be inferred that S was the source of or acquiesced in the filing of the statement of claim containing the first sentence of paragraph 4. On 4 October the independent barrister answered the question “Yes”.
On 25 November 2019 Mr Perrotta filed in the appellate proceeding an application for directions, supported by an affidavit sworn by him on 22 November 2019, seeking that Scammell & Co file and serve a list of documents (incorporating a Kadlunga list in respect of documents claimed to be privileged), the appellant be at liberty to apply to a Judge to inspect a document to resolve a privilege dispute and the appellant’s lawyers may inspect any document determined not to be privileged. Ultimately this application was superseded by a further application made on 11 June 2020 and was not pursued, but in the meantime there were directions hearings in relation to it.
On 5 February 2020 there was a directions hearing in the appellate proceeding before Kelly J. Mr Perrotta, appearing for the appellant, sought orders in terms of the 25 November 2019 application. Ms Matson appeared for S and told Kelly J that she was instructed to object to Mr Perrotta’s application. She submitted that the affirmative answer by the independent barrister was not significant because there was a doctor’s report on the file perused by the independent barrister that said that S was pregnant and went on to summarise her injuries and the barrister’s answer was always going to be in the affirmative because he was not asked to exclude that report from his assessment. The directions hearing was adjourned for inquiries to be made of the barrister to identify in a general way the nature of the document to which he had referred.
On 26 March 2020 the independent barrister was asked whether there was one or more than one document giving rise to the answer and was it or they privileged. On 27 March he said that there was only one document and it was privileged.
On 4 May 2020 the independent barrister was asked to identify the document (without disclosing its content). On 13 May he identified the document as an “unsigned draft statutory declaration”.
On 11 June 2020 Mr Perrotta on behalf of the appellant filed an application in the appellate proceeding for a Judge to inspect the draft statutory declaration to determine whether the claim of privilege was substantiated. The application was supported by an affidavit sworn by Mr Perrotta on 11 June 2020, supplementing his earlier 21 November 2018 and 22 November 2019 affidavits, and an affidavit later sworn by him on 2 July 2020.
On 3 July 2020 Ms Matson on behalf of S swore an affidavit in opposition to the application. The affidavit included the following paragraphs:
2The subject appeal relates to the first Statement of Claim in this Victims of Crime Application, wherein it alleges that the Appellant impregnated the victim…
3A few weeks later I filed a second Statement of Claim that removed the reference to the Appellant impregnating the victim. The allegation that the victim had been impregnated by the Appellant was an error that I made in drafting the [first statement of claim]. I gave evidence to this effect before His Honour Judge Stanley [sic] on 26 [sic] November 2018.[7]
[7] This should read Judge Slattery on 12 November 2018.
On 6 July 2020 the application came before a Judge of this Court. Mr Perrotta appeared for the appellant. Ms Dunlop appeared for the Director. Ms Matson appeared for S. Mr Perrotta tendered his four affidavits and Ms Matson tendered her affidavit. The Judge indicated to the parties that he had already inspected the draft statutory declaration without realising that inspection would be opposed by S. He heard submissions on whether the document was created in circumstances giving rise to privilege and if so whether the illegal purpose exception[8] applied.
[8] TheDaniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, (2002) 213 CLR 543 at [24] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
On 16 July 2020 the Judge delivered reasons for a ruling upholding the claim of legal professional privilege in the draft statutory declaration.
On 5 November 2020 the appellant filed an application for directions seeking orders:
1.that legal professional privilege has been waived in respect of the draft statutory declaration and any materials used to create it; and
2.for production of any undisclosed medical reports contained in the Scammell & Co file not covered by legal professional privilege that he was lawfully entitled to receive upon receipt of the statement of claim.
The application was supported by an affidavit sworn by the appellant on 17 November 2020.
On 17 November 2020 the appellant filed an application for directions seeking permission to issue a subpoena to the Commissioner of Police for the production of documents concerning missing persons reports in respect of the complainant going missing on 7 July 2011 and 17 August 2011. The application was supported by a second affidavit sworn by the appellant on 17 November 2020.
On 17 November 2020 the appellant filed a third affidavit sworn on 17 November 2020 setting out a chronological narrative commencing with his arrest in August 2011. He foreshadowed that on 18 November, at the hearing of his application for permission to appeal, he would seek an adjournment of that hearing so that the outcome of the interlocutory orders he was seeking could be determined before the application for permission to appeal was heard.
Appellate hearings
On 18 November 2020 the appellant’s application for permission to appeal a second time came on for hearing before the Court.
The appellant sought to argue his interlocutory applications for the issue of a subpoena to the Commissioner of Police and production of documents from the Scammell & Co file and an adjournment of the hearing of his application for permission to appeal pending hearing and determination of those interlocutory applications. The Court determined to hear the interlocutory applications and application for permission to appeal together and reserve the question whether further submissions should be received subsequently depending on the determination of the interlocutory applications.
The Court heard submissions on all matters and reserved its decision. The Court indicated that it would consider whether it should inspect the draft statutory declaration and if it did so would consider giving an opportunity to Scammel & Co on behalf of S to make submissions on the issue of waiver.
The Court subsequently determined to inspect the draft statutory declaration and did so after giving an opportunity to Scammel & Co on behalf of S to object to the inspection. The Court convened a further hearing, ultimately listed for 15 June 2021, to hear submissions from the parties and, if so advised, from Scammell & Co on behalf of S, on the issue of waiver of privilege in respect of the draft statutory declaration. The Court requested Ms Matson to attend at the hearing to give evidence, if necessary, relevant to the waiver issue.
On 15 June 2021 the Court heard evidence from Ms Matson relevant to the waiver issue. The Court heard submissions by the appellant and the Director on the waiver issue. Scammell & Co did not appear on behalf of S to make submissions on the waiver issue. The Court ruled that there had been an imputed waiver of privilege in respect of some documents contained in the Scammell & Co file and it would examine the file to determine to which documents the imputed waiver extended. The Court indicated that it would give reasons for the ruling at the same time as giving reasons for the disposition of the application for permission to appeal.
The Court subsequently identified those documents in the Scammell & Co file to which the imputed waiver applied. Copies of those documents (together with copies of the expert medical reports contained on the file) were provided to the appellant, the Director and Ms Matson. The Court requested Ms Matson to attend at the hearing to give evidence, if necessary, relevant to the application for permission to appeal.
On 27 July 2021 the Court heard evidence from Ms Matson relevant to the application for permission to appeal. The Court heard further submissions from the appellant and the Director and reserved its judgment.
Ruling on imputed waiver
The appellant does not contend that there was an intentional waiver, whether express or implied,[9] by S of privilege in respect of instructions provided by her to Ms Matson in relation to the compensation claim.
[9] See the discussion of express and implied waiver, in contrast with imputed waiver, in Duncan as Liquidator of WDR Iron Ore Pty Ltd (In Liquidation) v SMA Industries Pty Ltd (No 3) [2021] SASC 94 at [35]-[37] per Blue J.
The appellant contends that there was an imputed waiver by S of privilege in respect of such instructions by reason of disclosures by Ms Matson, in accordance with her instructions, in her 15 April 2019 email to Mr Perrotta and her 3 July 2020 affidavit.
An imputed waiver arises when the privilege holder acts in a manner inconsistent with maintenance of confidentiality in the privileged communication. In this situation, the privilege holder does not disclose, or intend to waive privilege in, the communications in question as such.
In Mann v Carnell[10] Gleeson CJ, Gaudron, Gummow and Callinan JJ said:
At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege...
Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.[11]
[10] [1999] HCA 66, (1999) 201 CLR 1.
[11] At [28]-[29]. (Footnotes omitted)
If the privilege holder discloses the substance or effect of privileged communications, they may be held to have waived privilege in the communications.
In Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd[12] Ampolex issued a report stating "There is a dispute about the conversion ratio. Ampolex maintains that the correct ratio is 1:1 and has legal advice supporting this position." Rolfe J held that this disclosed the substance of the legal advice, giving rise to an imputed waiver.
[12] (1996) 40 NSWLR 12.
In Australian Unity Health Ltd v Private Health Insurance Administration Council[13] the Council issued to Australian Unity a statement of reasons including a statement that read “PHIAC policy ... is defined in Council Rule No 4. Separate legal advice supporting PHIAC's view of this rule has been received.” Goldberg J held that there was an imputed waiver of privilege in the advice.
[13] [1999] FCA 1770.
In Bennett v Chief Executive Officer of the Australian Customs Service[14] Gyles J (with whom Tamberlin J agreed) approved the reasoning in Ampolex Ltd and Australian Unity Health Ltd and said:
The voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion. The primary judge was in error in drawing a distinction between conclusion and reasoning in the context of such a disclosure.[15]
[14] [2004] FCAFC 237, (2004) 210 ALR 220.
[15] At [65]. See also Tamberlin J at [13].
In the present case, the disclosure by Ms Matson related to instructions from the applicant rather than advice given to the applicant but the principle of disclosure of the gist or substance applies equally to instructions as it does to advice. The subject matter of Ms Matson’s 15 April 2019 email was instructions by S to Ms Matson on the topic of the paternity of S’s child. Ms Matson disclosed that the instructions she received from S were not that the appellant was the father of her child. Merely because Ms Matson’s disclosure was expressed in the negative does not entail that she did not make a disclosure of the substance or gist of the instructions. It is inconsistent to disclose that the instructions from S were not that the appellant was the father of her child without disclosing what the instructions were.
The subject matter of paragraph 3 of Ms Matson’s 3 July 2020 affidavit was also the identity of the father of S’s child. By stating that the allegation that S had been impregnated by the appellant was Ms Matson’s own error (rather than in accordance with her instructions from S) and by adopting the evidence she gave about her instructions before Judge Slattery in November 2018, Ms Matson disclosed that the instructions she received from S were not that the appellant was the father of her child.
When Ms Matson gave evidence on 15 June 2021, she said that her 15 April 2019 email was sent and her 3 July 2020 affidavit was sworn in accordance with her instructions from S. This was in contradistinction to the situation before Judge Slattery in November 2018 when she was acting without instructions from S. Ms Matson’s disclosures in April 2019 and July 2020 must therefore be attributed to S.
The Director contends that the 15 April 2019 email was sent by Ms Matson in the context of communications between solicitors attempting to resolve the matter on a basis that involved trust and avoided breach of any privilege. He points to the content of Mr Perrotta’s 15 April 2019 letter which preceded the email. The Director eschews a contention that the communications were the subject of settlement privilege under section 67C of the Evidence Act 1929 (SA). Rather, the Director submits that there is no relevant inconsistency, as identified in Mann v Carnell, between the disclosure made in the 15 April 2019 email and S declining to disclose documents contained in the Scammell & Co file relevant to instructions by S concerning the paternity of her child. That submission must be rejected. The disclosure made in the 15 April 2019 email was not pursuant to some process agreed to by the solicitors and, on the contrary, involved a rejection of the process suggested by Mr Perrotta in his letter. In any event, the Director’s contention would have no application to the 3 July 2021 affidavit.
The imputed waiver of privilege does not extend to all records on the Scammell & Co file of communications between S and Ms Matson. It only extends to those documents relevant to instructions by S to Ms Matson on the topic of the paternity of S’s child. The Court reviewed the documents on the Scammell & Co file and identified those documents that were the subject of the imputed waiver.
Ruling on subpoena application
The appellant sought permission on the day before the hearing of the application for permission to appeal to issue a subpoena to the Commissioner of Police for the production of documents concerning missing persons reports in respect of the complainant going missing on 7 July 2011 and 17 August 2011.
In his supporting affidavit sworn on 17 November 2020, the appellant said that he reported S missing to police on 7 July 2011. He said at paragraph 6:
Over the next few days, I told police of my concerns regarding a number of persons (most of whom were my employees) who I believed either knew something about, or were involved in, the disappearance of my daughter. [He then named four women A, B, C, D and three men E, F and G.] They all knew [S], and several had shown an unhealthy interest in her.
The appellant said at paragraph 8 that, while S was missing, he was informed by a member of the public that S was seen in the company of a man whose description he was given. The appellant said that the description fitted the description of G. He said that he notified the police but they failed to act.
The appellant said at paragraph 9 that he had suspicions regarding the interest that A, B and G had in S and he relayed those suspicions to the police. He did not identify the basis of those suspicions.
The appellant contended at paragraph 13 that the police records the subject of the missing persons report would show that the prosecution knew of his concerns regarding a group of people and the likelihood of their involvement in S’s disappearance.
A, B, C, D and E were called by the prosecution as witnesses at the trial. A, B and C gave evidence that they saw S while she was “missing”. Counsel for the appellant cross-examined several of the witnesses with a view to impugning the conduct of G. The appellant gave evidence at the trial that, after S went missing on 7 July 2011, G told him that, if the appellant did not pay him $200,000, he would never see S again. The appellant did not give evidence that G (or any of the other persons named in his affidavit) had shown an unhealthy interest in S.
In his submissions in support of his application for permission to issue a subpoena to the Commissioner of Police, the appellant submitted that the relevance of the documents that he sought to subpoena was that it would show that he reported his suspicions to the police and information provided to him by members of the public.
Although subpoenas are issued relatively frequently for the purpose of trial, it is rare for this Court to grant permission to issue a subpoena for the purpose of an appeal. It is the obligation of defendants to obtain such evidentiary material as they may be advised to support their case at trial and to adduce such evidence as they may be advised at trial. It is not generally appropriate that defendants seek to obtain evidentiary material by subpoena on appeal and then to adduce that evidence on appeal, let alone a second appeal.
Assuming that the Commissioner of Police has records recording information that the appellant says he gave to the police in relation to S’s disappearance and his suspicions about any of A to G, those records would not be admissible evidence to prove the truth of the appellant’s suspicions because they would be hearsay. All that they would prove would be that the appellant informed the police of his suspicions. That fact would not have assisted the appellant at his trial and indeed, if it had been relevant, he could have given that evidence himself at trial. The appellant did not give evidence at trial of his suspicions (other than of the alleged threats by G) or of his reports to the police.
Even if the appellant were able to adduce evidence that one or more of A to G had shown an unhealthy interest in S, this would not be relevant to the credibility of the evidence given by S about her sexual relationship with the appellant or, if relevant, would have very little weight.
The evidentiary material that the appellant hopes to obtain by the issue of a subpoena would be incapable of amounting to “fresh” or “compelling” evidence within the meaning of section 159 of the Criminal Procedure Act. In addition, it is tantamount to an abuse of process in the circumstances for the appellant to bring an application for permission to appeal a second time against conviction on the ground of discovery of fresh evidence and then to seek the issue of a subpoena in the hope of obtaining different “fresh evidence”, the existence of which he knew before the trial.
Accordingly, we dismiss the appellant’s application for permission to issue a subpoena to the Commissioner of Police.
Criteria for grant of permission to appeal a second time
Section 159 of the Criminal Procedure Act before 1 January 2021 provided:
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.
In relation to the definition of “fresh”, in R v Keough (No 2)[16] Gray, Sulan and Nicholson JJ said:
An applicant bears the onus of establishing that evidence relied upon for this purpose is fresh. The question of whether evidence was adduced at trial for the purpose of 353A(6)(a)(i) may be determined by having regard to the transcript of evidence at trial. The requirement in s 353A(6)(a)(ii), that the evidence could not, even with the exercise of reasonable diligence, have been adduced at trial, requires 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.[17]
[16] [2014] SASCFC 136, (2014) 121 SASR 307.
[17] At [102].
In relation to the definition of “compelling”, in Van Beelen v The Queen[18] Bell, Gageler, Keane, Nettle and Edelman JJ said:
… each of the three limbs of sub-s (6)(b) has work to do, although commonly there will be overlap in the satisfaction of each. The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding. The criterion of substantiality requires that the evidence is of real significance or importance with respect to the matter it is tendered to prove. Plainly enough, evidence may be reliable but it may not be relevantly "substantial". Evidence that meets the criteria of reliability and substantiality will often meet the third criterion of being highly probative in the context of the issues in dispute at the trial, but this will not always be so. The focus of the third criterion is on the conduct of the trial. What is encompassed by the expression "the issues in dispute at the trial" will depend upon the circumstances of the case.[19]
[18] [2017] HCA 48, (2017) 262 CLR 565.
[19] At [28]. (Footnotes omitted)
Paragraph 4 of the statement of claim
The first item of fresh evidence relied on by the appellant is paragraph 4 of the first statement of claim falsely pleading that he was the father of S’s child.
The appellant contends that there is evidence that paragraph 4 was pleaded in accordance with instructions by S to Ms Matson notwithstanding Ms Matson’s evidence and this is supported by evidence given by D at the trial. He contends that the assertion in paragraph 4 was a lie and this seriously undermines S’s credit, on which the convictions depended.
Ms Matson’s evidence
When Ms Matson gave evidence before Judge Slattery on 12 November 2018, she did not have her file with her to refresh her memory. Her evidence during cross-examination by Mr Perrotta included the following passages:
Q.Can I ask you about, you've described it as a false assumption that [the appellant] impregnated his daughter and I think that that information you said you obtained from a medical report.
A.That may have been one of the things that contributed to my belief. I mean, I knew she was pregnant or maybe even had a child by the time this was all resolved but I never once got told by [S], 'I'm pregnant because he raped me'. It's not a question I asked and it's not something she volunteered because she'd been the victim of this offending and sexual offending and she was pregnant, I wrongly drew that assumption and it wasn't just from reading the report, no doubt it was - I knew she was pregnant.
…
Q. Is that medical report from a Dr Athinodorou.
A. Dr Athinodorou..
…
Q. Is that dated 10 December 2013.
A. 10 December 2013.
…
Q.Does it also say that - on the second page - does it also say that [S] reported that she had intercourse with somebody in May 2012, is that correct.
A.I'm just reading it. Yes, it says she did see a GP there, Dr Doan, on 4 September 2012 and there's a note there stating, 'She was sexually abused by her father when she was little', so obviously not just before she got pregnant and that her father was now in gaol and also the fact that she had a boyfriend, had intercourse with him and they broke up in May'. So it's implied by this GP's report had I read it properly at the time I drafted the pleadings, I would have got this right, that the boyfriend impregnated her. So I really did make a big mistake because if I'd read this report it would have reminded me the boyfriend was the one who made her pregnant not the second defendant.
Q.Did you read the report.
A.I would have read it obviously when formulating the claim and drafting the statement of claim, so during that process I give it a lot of energy but at the time of drafting the pleadings which is usually sometime later, I clearly didn't revise it all and I've got so many files, you forget all the details in each file and I was - once again - only doing it to get this $50,000, the order for the 50,000 so the money could be released. This GP's report really just confirms I made a mistake and didn't give enough time and energy to drafting the pleadings.
…
Q.Did you pay attention to the certificate when you signed it, knowing that … it was an obligation on you to get it right.
A.It's a reflection on my, I guess, competence as a lawyer at the time I drafted this, that I signed that without having her read it but because of her intellectual problem and the fact this was not a statement of claim in the usual, I guess –
…
Q.What I'm suggesting to you is that it's possible that [S] had indicated in some way that [the appellant] was the father of the child in a topic of conversation with you earlier on.
A. No. No, absolutely not.
Q. You say it's now not possible.
A. It's not - it didn't happen. I guarantee it.
…
Q.Perhaps a final question, do you agree with the proposition that you may have said something assuming that [the appellant] was the father to [S] and that she might have reacted in a certain way which fed your assumption.
A.No, I'm very confident that wasn't the case. This was purely me drafting this in haste with very little regard for the detail file and certainly not based on her telling me that he made her pregnant.
When Ms Matson gave evidence before this Court on 27 July 2021, her evidence about the drafting of the first statement of claim included the following passages:
Q.But in [Dr Athinodorou’s] report it didn't say anything about the false assertion.
A.No. I think, as I said to Judge Slattery in my evidence, that I believed that's where I'd - sorry, I said to Judge Slattery that I didn't do a very good job of drafting the statement of claim because it was a consent order, I put it together really quickly without having enough regard to the information on file. So it's my belief that I only had a very brief look at that report and saw the words 'pregnancy' and 'sexual assault', and then I've just sort of whipped it up rather than having really taken time... So I'm trying to find an explanation for it and there are the matters that come to mind, that report and the fact I wasn't getting enough sleep, was working too hard, juggling too many priorities and I've certainly learnt my lesson.
…
A.And I have another thought since as well, and I don't know how many years ago this file was, but I have had another victims of crime claim, something similar, where the victim was impregnated. Now, I can't say that that - that I got them mixed up, because I just don't know, but it is something I've remembered that could have got me mixed up, because I had been away from the file a lot and had a baby and had so much going on, someone else had been looking after the file, I think I just hadn't remembered a lot about this when I was actually drafting the statement of claim. And that is a problem, unfortunately, when you run a lot of files and a lot of victim of crime files.
Ms Matson’s evidence about the reference in the draft statutory declaration to a teenage pregnancy included the following passages:
Q.I'll go on to the unsigned draft stat declaration, I request that Ms Matson please be given a copy of document 64.
…
Q.So the document says that an injury from the offending includes teenage pregnancy, is that correct.
A.Yes, I mean it's obviously about two offenders not just one.
Q.I understand that.
A.You and [M].
Q.But that would be directly in relation to me would it not.
A.No, it was actually to do with - its neglect and as well as sexual offending, so what I was getting at -
KOURAKIS CJ
Q.Just pause for a minute, you said 'as well as sexual offending' and then we're indicating something else, what did you mean.
A.So neglect I think was mainly on the part of [M] and then there's obviously the sexual offending as well. The overall offending which basically says poor parenting and abusive parenting led to our client at a young age getting pregnant because - and look it's very common especially for victims of sexual offending to be vulnerable to other people.
Q.Is that following what is sometimes referred to as sexualisation following sexual offending, it leads to other sexual activity, is that what you're trying to explain.
A.That's right, but I think in [S]'s case she became very vulnerable to predators and look that's what I was getting at.
…
BLUE J
Q.So I think you were explaining something about neglect.
A.So when I said and 'various physical injuries and symptoms reflective of long-term neglect', which includes the teenage pregnancy, it goes back to what I said earlier in my evidence, that it wasn't talking specifically about the sexual offending; it's talking about the overall parenting. So the offences of both defendants combined included teenage pregnancy because she was quite vulnerable to others preying on her which also is why we wanted her finances to go to the Public Trustee. I was worried about her being preyed upon and taken advantage of.
…
Q.So your answer indicates to me that in your own mind you didn't believe that [the appellant] was the father of that child when you wrote those words; is that right.
A.No, that's right. At the time I'd drafted this, I actually did take more care in drafting it and did have far more regard to the file and the details in the file. Then there was a gap between this and the statement of claim when I obviously - my memory went completely blank which is unfortunate.
Ms Matson’s evidence about whether she was instructed by S that the appellant was the father of her child included the following passages:
KOURAKIS CJ
Q.Did [S] ever tell you that she had fallen pregnant because of any offending by [the appellant].
A.No.
…
XXN
Q.I'll finish up. At the end of the day, it's abundantly clear that you can no longer say with any degree or certainty that the client did not instruct you in the matter… of the false assertion.
A.If I didn't have the benefit of things sticking out in my memory, especially when Mr Perrotta drew my attention to the mistake, then I - you know, if I was just looking at this for the first time all these years later, then I would be able to say 'I have no memory at all', but I've got enough information, after reviewing the file now quite a few times and having reference to that point in time when I changed the statement of claim, to say with absolute certainty she did not provide me with instructions that she - that you impregnated her.
Ms Matson was cross-examined about her appearance at the directions hearing on 5 February 2020 before Kelly J. Her evidence included the following passage:
Q.Do you also recall on 5 February before Judge Kelly you stated that there was always going to be an answer in the affirmative by Mr Handshin, because the doctors of Theo's report had not been excluded from Mr Handshin's assessment.
A.Well, at the time we didn't know if there were one or more documents, and what the source of the document was. The only thing that stuck out in my mind was that report. So, I genuinely thought that would be an issue because I couldn't think of anything else on the file when I re-read it before it went to the Supreme Court registry, that was the only thing I could find. So, I was surprised when I found out it was a different document asking to identify it. But yeah, I was obviously wrong about that, but I don't necessary agree with Mr Handshin about his conclusion about the document he did identify. So, we can all have differences of opinion about these things.
Evidence of D at trial
The appellant contends that a finding that paragraph 4 of the first statement of claim was a deliberate lie by S is supported by evidence given by D at the trial.
D’s cross-examination by the appellant’s counsel included the following passage:
Q.Did you have a conversation once where you asked [S] why she wouldn't tell you about her parents.
A.Yes, I did.
Q.And did she say to you that [M] said that [M] wasn't having any more children, so it was [S] that needed to have more children with [the appellant].
A.Yes, yes.
This had earlier been put in cross-examination by the appellant’s counsel to S, who denied it:
Q.Did you tell [D] something along the lines that because your mother wasn't having any more children with your father you needed to have more children with your father.
A.No.
Is the fresh evidence compelling
The first statement of claim falls within the section 159 definition of “fresh” because it only came into existence after the conclusion of the trial and the first appeal.
The issue is whether it is “compelling” within the meaning of the section 159 definition, and in particular whether it is substantial and whether it is highly probative in the context of the issues in dispute at the trial.
If, hypothetically, the first statement of claim had pre-dated the trial (eg the trial had occurred in 2016), S could have been cross-examined on whether she was responsible for the pleading contained in the first sentence of paragraph 4 and whether it was a lie. However, such cross-examination would only have been relevant to credit.
We did not hear submissions on the question whether evidence relevant only to credit falls within the concept of “fresh and compelling evidence” within the meaning of section 159 of the Criminal Procedure Act. We assume in favour of the appellant that evidence relevant only to credit could be compelling within the meaning of the statutory definition if it is of sufficient significance or importance with respect to the complainant’s credit (so as to be substantial) and sufficiently probative of the defendant’s guilt (so as to be highly probative in the context of the issues in dispute at the trial of the offence).
In assessing whether the first statement of claim is of sufficient significance or importance with respect to the complainant’s credit so as to be substantial or highly probative, it is necessary to consider the whole of the relevant circumstances.
First, the first statement of claim was not signed or otherwise ostensibly verified by S. It was signed only by Ms Matson (albeit she certified that it was filed in accordance with S’s instructions).
Secondly, it is inherently unlikely that S was the author in April 2015 of a deliberate falsehood claiming that the appellant was the father of her child for several reasons:
·The appellant had been in custody on remand since his arrest in August 2011, which was inconsistent with his being the father of her child conceived in March 2012;
·S had already given evidence at the trial in July 2012 (after she became pregnant but before she knew that she was pregnant) that the last time she was touched by the appellant was in July 2011 and she had had nothing to do with him since then, which was inconsistent with his being the father of her child;
·S had already told Dr Sloan in September 2012 that she had a boyfriend, had intercourse with him and they broke up in May;
·S had no motive to tell the putative lie to increase the compensation payable to her because it had already been agreed by the Crown Solicitor before the statement of claim was filed that the maximum amount of $50,000 would be paid;
·If S had determined to tell a lie to increase the compensation payable to her, it may be expected that she would have told the lie to her general practitioner, Ms Hodgkiss and/or Professor Galletly but their medical reports do not state that the appellant was the father of her child;
·If S had determined to tell a lie to increase the compensation payable to her, it may be expected that she would have included it in her statutory declaration of 4 September 2014.
Thirdly, the statement of claim contains statements that are inconsistent with Ms Matson’s own knowledge:
·Paragraphs 2 and 3 plead that the appellant was convicted of “2 counts of Unlawful Sexual Intercourse and 2 counts of Indecent Assault” when Ms Matson knew, from the statutory declaration, that he was only convicted of one count of unlawful sexual intercourse (not two) and the conviction of the counts of indecent assault was quashed on appeal.
·Paragraph 2 pleads that the two counts of unlawful sexual intercourse and two counts of indecent assault occurred between 1998 and 2012; whereas they were charged as having occurred between 2008 and 2011.
These obvious errors strongly indicate that Ms Matson exercised little care in drafting the statement of claim.
Fourthly, paragraph 4 pleads that, as a result of one of the two offences of unlawful sexual intercourse of which the appellant was convicted, the complainant became pregnant. The charged offences of unlawful sexual intercourse were alleged to have occurred between 2008 and 2011 and before the appellant’s arrest, which was long before S became pregnant.
Fifthly, when the matter was drawn to her attention, Mr Matson amended the statement of claim in July 2015 to delete the first sentence of paragraph 4. This suggests that it was inserted erroneously in the first place.
These circumstances in combination, before considering the evidence of Ms Matson, render it extremely unlikely that S knew in April 2015 that Ms Matson had pleaded in the first statement of claim that the appellant was the father of her child and hence extremely unlikely that she lied about the paternity of her child.
Ms Matson has stated consistently since the matter was drawn to her attention in June 2015 that it was she who made the error in including the first sentence of paragraph 4 of the first statement of claim and she was never instructed by S that the appellant was the father of her child. She has given sworn evidence to that effect on two occasions. She has no apparent motive to commit perjury.
In addition, Ms Matson’s evidence is highly persuasive. We accept without hesitation her evidence that the inclusion of the pleading that the appellant was the father of S’s child was done by Ms Matson unilaterally without instructions to that effect from S and that S never instructed her that the appellant was the father of her child.
It is clear that objectively the content of the statement of claim did not have the usual importance of a party’s pleading. Filing the statement of claim was only a formality because the amount of the compensation had already been agreed. This is an important contextual matter in considering the content of paragraph 4 of the first statement of claim.
By contrast, the statutory declaration was important because it provided information on which the Crown Solicitor would assess the compensation claim. The statutory declaration executed by S on 4 September 2014 does not contain any statement to the effect of the first sentence of paragraph 4 of the first statement of claim. Drafts 2 and 3 of the statutory declaration did not state that the appellant was the father of S’s child. Objectively assessed in context, they merely stated that S’s teenage pregnancy was an indirect consequence of the offending by the appellant and M and compensation was being sought including in particular for neglect. If it had been intended to assert in those drafts that the appellant was the father of S’s child, it would have said so expressly.
The report by Dr Athinodorou included a reference to its being discovered in late August or early September 2012 that S was pregnant and S saying to Dr Sloan at that time (September 2012) that she was sexually abused by her father. It is readily understandable that, by the time that Ms Matson came to draw the first statement of claim more than a year after receiving and reading that report, she had unconsciously jumped to a conclusion from her recollection of the matters stated in the report that the appellant must have been the father of S’s child.
When the matter was drawn to her attention (directly or via Ms Watson) by Mr Perrotta, Ms Matson withdrew the first sentence of paragraph 4 of the first statement of claim by filing the second statement of claim.
There is no reason whatsoever to doubt Ms Matson’s evidence that the inclusion of the pleading that the appellant was the father of S’s child was done by her unilaterally without instructions to that effect from S and that S never instructed her that the appellant was the father of her child.
The appellant points to the certificate at the end of the first statement of claim that says “This pleading is put forward in accordance with the instructions of the plaintiff” and submits that this is evidence that S instructed Ms Matson that the appellant was the father of her child. However, this is overwhelmed by the evidence and considerations addressed above which demonstrate that S did not so instruct Ms Matson. While Ms Matson acted improperly in making the certification when the pleading was not in fact put forward in accordance with the instructions of S, her willingness to accept professional responsibility for so acting gives verisimilitude to her evidence.
The appellant submits that Ms Matson’s credit is affected by the fact that she told Kelly J on 5 February 2020 that the answer by the independent barrister was always going to be affirmative because there was a doctor’s report on the file perused by the independent barrister that said that S was pregnant and went on to summarise her injuries. We have set out the appellant’s cross-examination of Ms Matson in relation to that statement above. Ms Matson’s explanation is cogent and credible and there is no reason to doubt that it is correct.
The appellant submits that the reference in drafts 2 and 3 of the statutory declaration to “a teenage pregnancy” suggests an instruction by S to Ms Matson that he was the father of her child. We reject that submission for the reasons given above.
The appellant submits that the putative statement of S to D is similar to and supportive of the putative statement by S to Ms Matson that the appellant fathered her child. However, assuming for the sake of analysis that S told D that her mother told her that she needed to have children with her father, it is not probative whether S told Ms Matson that the appellant was the father of her child. The putative conversations were years apart and addressed different topics. The first putative conversation addressed merely a concept of the appellant fathering a child whereas the second putative conversation addressed the appellant actually fathering a child. The evidence of D does not increase the probability that S made the putative statement to Ms Matson in 2015.
The appellant at makes a submission that some words contained in a file note made by Ms Matson concerning a conference with S on 25 February 2014 supported the proposition that S instructed Ms Matson that the appellant was the father of her child. However, in cross-examination Ms Matson explained the meaning of those words and they are irrelevant to the issue.
Taking into account all of the relevant circumstances, the first item of fresh evidence, being paragraph 4 of the first statement of claim, is not “compelling” within the meaning of the section 159 definition because it is not highly probative in the context of the issues in dispute at the trial.
The Athinodorou report
The second item of fresh “evidence” relied on by the appellant is the passage from Dr Athinodorou’s December 2013 medical report extracted at [21] above and in particular the following words:
On reviewing her notes here at our surgery, she did see Dr Doan [sic] on the 4th September 2012, there is a note there stating that … she had a boyfriend, had intercourse with him and they broke up in May.
The appellant contends that the effect of S having engaged in an unlawful (underage) sexual relationship with a boyfriend in about March 2012 giving rise to her pregnancy after or possibly before making allegations against him for an offence of the same nature and then giving evidence against him at trial seriously undermines S’s credibility.
Dr Athinodorou’s medical report is not admissible evidence. It is hearsay being a statement by a third party (Dr Athinodorou) of a record made by another person (Dr Sloan) of what S told Dr Sloan. The appellant has not adduced any evidence from Dr Sloan herself. However, it is not in doubt that S became pregnant in about March 2012 and it follows as a matter of logic that she must have engaged at the age of 16 in a sexual act with someone in order to become pregnant. That act may (depending on the circumstances) have involved the commission of an offence.
Assuming that there were admissible evidence that S engaged in a sexual relationship before the trial that was unlawful, that evidence may well be “fresh” within the meaning of section 159 because it was not known at the trial and it may well be that it could not have been ascertained by the exercise of reasonable diligence.
However, the appellant does not identify why participation by S in an underage sexual relationship with another person would have affected her credibility at trial. Any fresh evidence would not be compelling because it would not be highly probative in the context of the issues in dispute at the trial.
The appellant makes several additional submissions that are outside the scope of his grounds of appeal. We address them briefly.
First, the appellant refers to the fact that in the report Dr Athinodorou says that he himself did not discuss any matters of unlawful sexual intercourse and contends that this is inconsistent with any unlawful sexual intercourse having taken place.
Dr Athinodorou’s medical report comprises hearsay. The appellant did not adduce any evidence from Dr Athinodorou himself. It is doubtful that a medico-legal report is a business record and in any event the discretion would be exercised against admitting it when Dr Athinodorou could presumably himself give evidence.
In any event, the medical report is not compelling in this respect. On the face of the report, S mentioned sexual abuse by her father to Dr Sloan on 4 September 2012 and mentioned sexual abuse to Dr Isaac on 25 February 2013. The mere fact that Dr Athinodorou did not himself discuss it with S has no evidentiary significance.
Secondly the appellant refers to the fact that the medical report states that S consulted Dr Isaac on 25 February 2013 and Dr Isaac “mentions a history of mental and sexual abuse since the age of 5”, which the appellant contends is inconsistent with the report by Ms Hodgkiss recording that S told her that the abuse took place from 2003 when she was seven years of age. Leaving aside the fact that the appellant has not adduced any evidence from Dr Isaac as to what he was told (or indeed from Ms Hodgkiss), the two statements are not inconsistent. Dr Isaac referred to both mental and sexual abuse such that the mental abuse may have begun at the age of five and the sexual abuse may have begun at the age of seven. Particularly in the absence of evidence from Dr Isaac and Ms Hodgkiss, the references to S’s age have no evidentiary significance.
In this context, the appellant also refers to the first statement of claim which refers to two counts of unlawful sexual intercourse and two counts of indecent assault charged against the appellant relating to events occurring between 1998 and 2012. This purports to be a statement of the date range of the charged offences rather than information provided by S. We have observed above that this was an obvious error by Ms Matson. There is no basis to attribute it to S.
The second item of fresh “evidence”, being Dr Athinodorou’s report, is not “compelling” within the meaning of the section 159 definition.
The Hodgkiss report
The third item of fresh “evidence” relied on by the appellant is the following passage from Ms Hodgkiss’ July 2014 report:
[S] engages in numerous avoidance behaviours, including not going out, and not being around men if she can help it, including male checkout operators. This is primarily because she is reminded of her father, and she also does not want to run into people that her father knows. [She] also avoids activities that remind her of her parents, and that her parents used to like, including drawing and cars… [She] commented she gets anxious and can’t interact with men who look over 16 years of age, because she then tends to think about her father, and said even though she has been friends with her best friend for a while, she still worries when she is around her best friend’s father.
The appellant contends that the statements made by S to Ms Hodgkiss are inconsistent with her having been in a sexual relationship with a boyfriend in about March 2012 giving rise to her pregnancy.
Ms Hodgkiss’ report is not admissible evidence. It is hearsay. The appellant did not adduce any evidence from Ms Hodgkiss herself. It is doubtful that a medico-legal report is a business record and in any event the discretion would be exercised against admitting it when Ms Hodgkiss could presumably herself give evidence.
If the report comprised evidence, it would fall within the section 159 definition of “fresh” because it only came into existence after the conclusion of the trial and the first appeal.
However, the first reported statement was about S being reminded of her father. This is not inconsistent with her having a sexual relationship with a boyfriend of her own age. Similarly, an anxiety about interacting with men who look over 16 years of age and remind her of her father is not inconsistent with having a relationship with a boyfriend of her own age (she was 16 at the time). Any fresh evidence would not be compelling because it would not be substantial and would not be highly probative in the context of the issues in dispute at the trial.
The appellant makes an additional submission that is outside the scope of his grounds of appeal. We address it briefly. The appellant refers to a question by Ms Matson of Ms Hodgkiss about S’s speech impediment. Ms Hodgkiss’ report says that she is not aware of any speech impediment. The appellant contends that this indicates that S falsely pretended to have a speech impediment. Leaving aside the fact that the medical report is not admissible evidence, there is no basis to find that the reference in the letter of instruction to Ms Hodgkiss was based on any instruction by S to Ms Matson. The obvious inference is that Ms Matson herself perceived a speech impediment in her conversations with S but Ms Hodgkiss did not. Any fresh evidence would not be compelling because it would not be substantial and would not be highly probative in the context of the issues in dispute at the trial.
The third item of fresh “evidence”, being Ms Hodgkiss’ report, is not evidence and in any event is not “compelling” within the meaning of the section 159 definition.
The statement taken by the appellant’s lawyers from H
The fourth item of “fresh” evidence relied on by the appellant is a witness statement taken by the appellant’s solicitors at the start of the trial on 5 July 2012 from H.
Before the trial, H sent to the appellant a handwritten document listing places where her family had lived with the appellant and M and the approximate dates for each (the first statement).
The appellant provided the first statement to his solicitors before the trial. He requested them to take a statement from H.
On 5 July 2012, before the jury was empanelled, someone in the office of the appellant’s solicitors took a statement by telephone from H and prepared a statement in dot point form (the second statement). The statement included the following dot points:
·[A] and [B] are the [persons] that [S] lives with now.
·[A] used to work for [the appellant] and [the appellant] sacked her. [A] and [B] are now getting back at [the appellant].
·On Facebook, [S] told me that [M] had paid her to say that [the appellant] had been had [sic] sex with her.
·On Facebook [S] also told me that [inferentially A and B] told her to go along with it so that she can get compo from her dad. That is how they are trying to get back at [the appellant] for [the appellant] sacking [A].
The appellant in his submissions says that he did not see the second statement taken on 5 July 2012 until September 2020. He says that he asked his barrister about calling H as a witness and his barrister advised him that there was no use in doing so.
During cross-examination of S, the appellant’s barrister asked her if she had ever corresponded with H on Facebook and she denied doing so. The Facebook conversations referred to in the second statement were not put to her.
During cross-examination of S, the appellant’s barrister asked her if she was expecting to get compensation and she said that she was doing it to ensure that what happened to her did not happen to her brothers and sisters and not for compensation. During cross-examination of B, she was asked if she, A and S ever talked about getting compensation for these allegations and she said no.
The appellant contends that the second statement is significant because it supports the defence assertion that S’s motive for making the allegations was compensation, that he sacked A and B as employees rather than their resigning (which was their evidence) and Crown witnesses conspired to set him up because he sacked A and B.
The second statement is not admissible evidence. It is hearsay being a record by a third party (the person at the appellant’s solicitors’ office who took the statement from H). The appellant has not adduced any evidence from H herself.
In addition, in the absence of H been called to give evidence, it is not known what evidence she would actually give, or be prepared to give, under oath or indeed whether she would give evidence at all. Nor is it known what the detail would be of any evidence that she gave. For example, it is not known whether she would give evidence that the appellant sacked A or, if she did, what is the source of her belief (which could well be inadmissible hearsay).
Even if the second statement were regarded as evidence for the purpose of section 159 of the Criminal Procedure Act, the appellant has not demonstrated that it is “fresh”. The second statement was obviously available to the appellant’s solicitors and counsel at trial. A forensic decision was made by them not to call H as a witness at trial.
Ordinarily, potential evidence will not be “fresh” within the meaning of the section if it was known by and available to a defendant’s lawyers at trial and they made a forensic decision not to adduce it. The mere fact that the defendant personally is not aware of the potential evidence will not render it fresh. Exceptional circumstances, such as the defendant’s lawyers acting dishonestly or perhaps with gross incompetence, would be required before evidence known to a defendant’s lawyers but not known to a defendant could be characterised as fresh within the meaning of the section.
In Helps v The Queen (No 3)[20] Stanley and Doyle JJ 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…
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.
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.[21]
[20] [2021] SASCFC 10.
[21] At [202]-[206].
The appellant has not adduced any evidence from his lawyers concerning their forensic decision not to call H to give evidence or their communications with the appellant on the topic of calling H to give evidence. The appellant himself has not given evidence concerning these matters. In his submissions, he says that he asked his barrister about calling H as a witness and his barrister advised him that there was no use doing so. He also makes more general complaints about the competence of his lawyers. There is no basis on which we could find that the forensic decision not to call H to give evidence was incompetent or even unsound or that the appellant did not leave it to his lawyers to make that forensic decision. There are no exceptional circumstances capable of leading to a conclusion that the second statement is fresh within the meaning of section 159.
In the absence of evidence being adduced from H, the second statement (even if regarded as evidence for the purposes of the section) is not compelling because it is not reliable, substantial or highly probative in the context of the issues in dispute at the trial of the offence.
The fourth item of fresh “evidence”, being the witness statement taken by the appellant’s solicitors from H, is not evidence and in any event is not “fresh” or “compelling” within the meaning of the section 159 definition.
Conclusion
Whether the items of “fresh evidence” are considered separately or collectively, the appellant has failed to establish that there is any fresh and compelling evidence justifying the grant of permission to appeal a second time against his convictions.
We refuse permission to appeal a second time.
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