MJJ v The Queen

Case [2021] SASCFC 36

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…

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MJJ v The Queen [2021] SASCFC 36
Case
[2021] SASCFC 36
Decision Date

CaseChat Overview and Summary

The appellant, MJJ, sought permission to appeal a second time against his convictions for unlawful sexual intercourse and indecent assault. The complainant, his daughter S, gave evidence of a course of sexual conduct by the appellant commencing when she was approximately seven years old. The appeal concerned the appellant's contention that a statement in the compensation proceedings, asserting he was the father of S's child, was false and that S had instructed her solicitor to plead this, thereby undermining her credit. The Court of Appeal of South Australia was required to determine whether to grant permission to issue a subpoena to the Commissioner of Police and whether certain asserted fresh evidence met the criteria for admissibility and compellingness under section 159 of the Criminal Procedure Act 1921.

The court considered several items of asserted fresh evidence. The first item related to whether S had instructed her solicitor that the appellant was the father of her child. The court found that by disclosing information on this topic, the solicitor had, acting on instructions, imputed a waiver of client legal privilege in relation to relevant documents. However, the court concluded that S had not instructed her solicitors that the appellant was the father, and this asserted evidence was not compelling. The remaining items of asserted fresh evidence were found to be inadmissible, or not fresh and compelling, within the meaning of section 159 of the Criminal Procedure Act 1921.

The court reasoned that the solicitor's disclosure regarding instructions on paternity, even if based on an assumption, did not establish that S had made such an instruction. The medical reports and the solicitor's own evidence indicated that the assumption of paternity was a mistake, and that S had indicated a boyfriend as the father. The court also found that the proposed subpoena to the Commissioner of Police was not justified. Ultimately, the court determined that the appellant had failed to establish any fresh and compelling evidence that would warrant granting permission for a second appeal.

Permission to appeal a second time was refused.

Orders

Orders of the court

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]).

Background

Background to the litigation

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).

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.