R v ABDULLA - [2009] SASC 231

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ABDULLA
[2009] SASC 231
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice David and The Honourable Justice Kelly)
11 August 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Appellant charged with two counts of unlawful sexual intercourse with a person under the age of 12 years - trial judge found appellant unfit to stand trial pursuant to s 269 of the Criminal Law Consolidation Act (SA) - matter proceeded by way of hearing before a jury as to whether objective elements of the offences had been established - jury found that the objective elements of both counts were proved - appeal against that finding.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - RE-EXAMINATION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
Victim's evidence contradicted by part of a previous statement given to police - in cross-examination victim denied he had sex with appellant more than twice - in re-examination victim said he did not tell police in a previous statement that he had sex with appellant more than twice - after re-examination by way of agreed fact it was led that in another part of the conversation with the police victim said he had sex with appellant more than twice - appellant submitted the agreed fact should not have been led and the answer given by victim in re-examination should not have been impugned.
Held: agreed fact should not have been led - mistake in leading the agreed fact did not result in a substantial miscarriage of justice - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 49(1), s 269, s 269MB(2), s 269Y(3), referred to.
Weiss v The Queen (2005) 224 CLR 300, applied.

R v ABDULLA
[2009] SASC 231
Court of Criminal Appeal: Bleby, David and Kelly JJ

BLEBY J. I would dismiss the appeal. I agree with the reasons of David J.
DAVID J. The appellant was charged with two counts of unlawful sexual intercourse with a person under the age of 12 years, contrary to s 49 (1) of the Criminal Law Consolidation Act, 1935 (“the Act”). Each offence alleges that between 1 July 2001 and 10 April 2006 he had anal sexual intercourse with the victim (“V”), a male under the age of 12 years.
The appellant is a deaf mute and, pursuant to s 269 of the Act, a judge of the District Court ordered an investigation as to his mental competence to stand trial. The judge found that he was unfit to stand trial. Having recorded a finding to that effect, pursuant to s 269MB(2) of the Act, the matter proceeded by way of a hearing before a jury as to whether it had been satisfied beyond reasonable doubt that the objective elements of the offences had been established. A jury found that the objective elements of both counts were proved. The appellant now appeals against that finding, pursuant to s 269Y(3) of the Act.
The Crown relied solely on the evidence of V to prove the objective elements of the two counts at the hearing. The appellant did not give evidence.
V said in his evidence in chief that he was born in 1995. At the time of giving evidence he lived with his foster mother (“K”) and her partner (“B”) in a seaside country town. He had lived there for nearly three years. Before that he had lived with K and B in the Riverland. V gave evidence that he had lived with a number of people in the Riverland and had been living there ever since he could remember. In particular he had lived with a woman called “S”. He gave evidence of the difficult times living in a house full of people in the Riverland and being looked after by S, who was often drunk and smoked marijuana. He also gave evidence that whilst in the Riverland, he and the others lived in more than one house.
V gave evidence that he knew the appellant. He said that the appellant was much older than he was and could not talk. He said he would often see him around the area. He gave evidence that on one occasion he was alone with the appellant at the local kindergarten (which some time later burnt down) when the events which are the subject of count one took place. His evidence was that the appellant pulled his pants down and had anal intercourse with him. He said that when the appellant had finished he used signs and asked V to suck his penis, which he did. That act of oral intercourse was not the subject of any charge and was led as an uncharged act. V gave evidence that the appellant forced the act of intercourse by putting his hands upon his head. V said he then went home.
V gave further evidence that the appellant lived in the Riverland with his father. There were also a number of other people living with them. On one occasion, V was in that house with the appellant and two young girls who were living there, watching what he described as a “dirty movie”. The girls eventually left the house and V was alone with the appellant. V went into the bathroom at the appellant’s invitation, and the appellant then indicated by the use of signs that he wanted to have anal intercourse with him, which he did. That evidence was the subject of count two. V said this incident took place after the incident which was the subject of count one.
As V was 13 years of age at the date of giving evidence, there was no dispute that, if these events took place, he was under the age of 12 years at the time.
The case for the Crown clearly rested upon the evidence of V alone, and there was no evidence led by way of recent complaint.
When cross-examined, V agreed that he did not say anything about the incident which took place at the appellant’s house (which is the subject of count two) when he gave a statement to a Detective Greg Ranger on 12 October 2006. He also said in cross‑examination that he did not say anything about the facts which are the basis of count two in further statements which were taken from him by the police on 13 April 2007 and 9 August 2007.
At the hearing, when asked in cross-examination about the statement he gave to Detective Ranger on 12 October 2006, he agreed that he had told him that he had had sex with the appellant once at the kindergarten and once near a swimming spot. In giving an explanation for that answer to Detective Ranger’s questions, he said at the hearing, “Yeah, but I was only young and I was too scared to admit it happened too many times”.
Those answers in cross-examination at the hearing prompted the prosecutor to re‑examine him by asking the following questions:
Q.You were asked this morning about whether you had said to Greg that it had only happened twice with Scottie, whether you had said that to Greg; do you remember.
A.Yes.
Q.And you were asked some questions about that. Has Scottie only had sex with you twice, or more than twice.
A.Yes - more times.
Q.The two times you told us about, are they the matters you can remember in some detail.
A.What do you mean?
Q.Do you know how many times Scottie has had sex with you.
A.No.
…
Q.Just listen carefully to the question. When you spoke to Greg Ranger, did you tell Greg that Scottie had had sex with you more than twice.
A.No because I was too scared. I was only a little dude.
As can be seen, V told Detective Ranger on 12 October 2006 that he had sex with the appellant twice. In re-examination at the hearing, he indicated that he had sex with the appellant more than twice, but denied telling that to Detective Ranger or any other police officer.
As it happened, in the record of interview with Detective Ranger on 12 October 2006, there was another part of that interview which was not put to V, which indicated that he told Detective Ranger that the appellant had in fact had sexual intercourse with him more than twice. As a result there was an agreed fact supplied to the jury which said:
4.[V] was interviewed by Detective Ranger on 12 October 2006. On one occasion in response to a question, [V] said he had only had sex with Scott twice. In response to a different question, [V’s] answer suggested that it occurred more than twice.
There was one ground of appeal argued before this Court. That ground concerns the re-examination set out above and the agreed fact that was provided to the jury. The appellant now argues that V’s answer in re-examination, that he did not tell Detective Ranger that he had sex with the appellant more than twice, should not have been impeached by leading the agreed fact that in another part of the record of interview he did say that. In other words, the prosecutor was not trying to re-establish credit, but was introducing material which was inconsistent with his own witness’ answer. The appellant argues therefore that the agreed fact should not have been admitted. Counsel for the respondent before this Court concedes that that argument is correct. When V answered in re‑examination that he only told Detective Ranger that he had sex with him on no more than two occasions, no further evidence should have been led on the topic. The agreed fact contradicted the evidence of V and could not amount to a previous consistent statement to restore V’s credit. In fact it contradicted his evidence on the topic. That being so, the respondent argues that this is a case in which the application of the proviso is appropriate.
The principles guiding the approach of this Court upon the application of the proviso are well established. The Court must be satisfied that, if there has been an error, as there has here, there is no substantial miscarriage of justice.[1] I turn to that question.
[1] Weiss v The Queen (2005) 224 CLR 300.
The Crown relied solely upon the evidence of V at the hearing. There was no evidence led of a recent complaint or any other supporting evidence. The defendant at trial (the appellant) did not give evidence but called his father, who gave evidence which could only be described as peripheral.
The trial judge gave a strong warning on the question of delay and also a warning concerning V’s age. He also warned the jury to scrutinise the evidence with great care because of the absence of any evidence independent of V. He gave the appropriate warnings on the onus of proof and on the fact that the appellant had not given evidence. Bearing that in mind, it can be seen that the issue the jury had to decide was clearly before them.
In my view, the mistake made in leading the agreed fact about the interview with Detective Ranger could not result in a substantial miscarriage of justice. In fact it is hard to imagine how it would have any bearing on the hearing at all. By allowing the agreed fact there was an internal inconsistency established with the statement given to the police as to whether V had had sex with the appellant twice or more than twice. When he gave his evidence in court V said it was more than twice, but he did not tell the police that. It is hard to see how V’s credibility would in any way be affected if the jury was deprived of the agreed fact, because there would still be an inconsistent statement between what he said in court and what he said to the police. There could have been no substantial miscarriage of justice.
I would dismiss the appeal.
KELLY J. I would dismiss the appeal. I agree with the reasons of David J.