R v BAKHUIS - [2012] SASCFC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BAKHUIS
[2012] SASCFC 55
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice David and The Honourable Justice Kelly)
18 May 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF DEFENCE COUNSEL
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Appeal against conviction – appellant was found guilty after trial by Judge sitting alone of one count of persistent sexual exploitation of a child pursuant to s 50 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and one count of unlawful sexual intercourse pursuant to s 49(3) of the CLCA – where the complainant was aged 14 or under at the time of the charged acts – whether the conduct of the defence counsel at the trial in failing to cross-examine the complainant more extensively than he did regarding alleged inconsistencies in the complainant’s evidence amounted to a miscarriage of justice – whether the trial Judge failed to comply with the requirements of s 34CB of the Evidence Act 1929 (SA) – whether s 34CB applies to a judge sitting alone.
Held: (Kelly J, Doyle CJ and David J concurring): appeal dismissed – there was no possibility of a miscarriage of justice by reason of trial counsel’s conduct at trial – extent of cross-examination necessary a matter of judgment – trial Judge’s findings on complainant’s truthfulness and credibility were comprehensive and made in light of a number of inconsistencies and inaccuracies in complainant’s evidence – even if trial counsel did establish further inconsistencies in complainant’s account by more extensive cross-examination on particular topics that could not have disturbed trial Judge’s ultimate conclusion – the circumstances did not result in a significant forensic disadvantage to the appellant – no direction in accordance with s 34CB(2) of the Evidence Act required – not necessary to decide if s 34CB(2) applies to a judge sitting alone.
Criminal Law Consolidation Act 1935 (SA) s 49(3), s 50; Evidence Act 1929 (SA) s 34CB, referred to.
B, VN v Police [2011] SASC 151, considered.

R v BAKHUIS
[2012] SASCFC 55
Court of Criminal Appeal: Doyle CJ, David and Kelly JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons of Kelly J.
DAVID J: I would dismiss the appeal. I agree with the reasons of Kelly J.
KELLY J:
Introduction
This is an appeal against a conviction in the District Court. The appellant was found guilty by a Judge sitting alone of one count of persistent sexual exploitation of a child contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] SASCFC 55
Decision Date: 18 May 2012

CaseChat Overview and Summary

The appeal against conviction in the matter of R v BAKHUIS involved the appellant who was found guilty by a Judge sitting alone of one count of persistent sexual exploitation of a child and one count of unlawful sexual intercourse. The complainant was aged 14 or under at the time of the alleged acts. The appeal raised two main grounds: first, that a miscarriage of justice occurred due to the conduct of the defence counsel at trial, particularly in relation to the extent of cross-examination of the complainant; and second, that the trial Judge failed to direct himself in accordance with s 34CB of the Evidence Act 1929 (SA), which pertains to the requirement for judges to address delays in trials that cause significant forensic disadvantage to the defendant.

The court was tasked with determining whether the conduct of the defence counsel amounted to a miscarriage of justice and whether the trial Judge was required to give a direction under s 34CB of the Evidence Act. The court considered whether the trial Judge's assessment of the complainant's credibility could have been influenced by more extensive cross-examination and if the trial Judge's comprehensive evaluation of the complainant's truthfulness and credibility, despite inconsistencies in her evidence, was sufficient. Additionally, the court examined if the delay between the alleged offences and the trial resulted in a significant forensic disadvantage to the appellant, necessitating a direction under the Evidence Act.

The court held that the appeal should be dismissed. It found that the extent of cross-examination is a matter of judgment for the trial counsel and that the trial Judge's findings on the complainant’s credibility were robust, considering the inconsistencies in her evidence. The court also determined that even if more inconsistencies had been exposed through more extensive cross-examination, it would not have altered the trial Judge’s ultimate conclusion. Moreover, the court concluded that no direction under s 34CB of the Evidence Act was required because the circumstances did not result in a significant forensic disadvantage to the appellant. The court did not need to decide whether s 34CB applies to a judge sitting alone, as the other grounds of appeal were dismissed.

Orders

Orders of the court

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Background

Background to the litigation

There are two grounds of appeal. The first, that there has been a miscarriage of justice by reason of the conduct of the appellant’s counsel at trial. It was said that the trial Judge’s assessment of the complainant’s evidence may have been different if cross-examination of the complainant at the trial had not been inadequate, and that as the complainant’s credibility was crucial to the findings of guilt, a miscarriage of justice occurred. The second ground of appeal is a complaint that the trial Judge failed to direct himself in accordance with the provisions of s 34CB(2) of the Evidence Act 1929 (SA) (“the Evidence Act”). Factual Background The complainant was born on 12 March 1996. The complainant’s sister, L, formed a relationship with, and later married, the appellant. In late 2004 or early 2005, L, the appellant and their child moved into a residence of their own. The complainant often stayed at the home of the appellant and L on weekends. She was about eight years old at the time and often stayed over at the house with a friend, K. From time to time L and the appellant supplied the complainant and K wine while they were staying over for the weekend. On those weekends the complainant alleged that the appellant would stay up late with her watching television or playing video games in the lounge room of the house. Usually L went to bed earlier than the appellant, leaving the appellant and the complainant alone. On occasions when both K and the complainant stayed over, K would sleep in the back room or the children’s bedroom whilst the complainant usually slept on the couch in the lounge room. Count 1, the complaint of persistent sexual abuse, relates to a number of sexual acts alleged by the complainant to have occurred between March 2004 and March 2010. The sexual acts relied on by the prosecution to prove count 1 were acts of penile vaginal intercourse with the complainant, and other incidents where the appellant caused the complainant to masturbate him with her hands and feet, and to perform oral sex upon him. In support of the first count the prosecution led evidence from the complainant that one night, not long after the appellant and L moved into their own house, the complainant was sleeping on the couch in the lounge room of the house when she was awoken by the appellant using her hand to masturbate his exposed penis. The complainant pretended to be asleep and rolled off the couch. The complainant told her friend K about the first incident. Within the next six to 12 months the appellant, again whilst on the couch in the lounge room at night while L was sleeping in the next room, woke up the complainant when she realised that the appellant was using her feet to masturbate his exposed penis. Later, when the complainant was aged between nine and 10 years, the appellant made her perform an act of oral sex on him. On that occasion the appellant approached the complainant while she was seated on the couch and forced his erect penis into her mouth. The complainant gave evidence that on the first occasion he did not ejaculate, but there were other occasions when he did ejaculate in the complainant’s mouth.

Evidence

Evidence Before The Court

I would dismiss this ground of appeal.The Second Ground of Appeal: s 34CB of the Evidence Act The second ground of appeal is a complaint that the trial Judge failed to warn himself in accordance with the terms of s 34CB(2) of the Evidence Act. That section provides as follows:34CB—Direction relating to delay where defendant forensically disadvantaged(1) A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.Note—See Longman v The Queen (1989) 168 CLR 79(2) If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—(a)explain to the jury the nature of the forensic disadvantage; and(b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.(3) An explanation or direction under subsection (2) may not take the form of a warning and—(a)must be specific to the circumstances of the particular case; and(b)must not include the phrase "dangerous or unsafe to convict" or similar words or phrases. The circumstances said to give rise to the requirement that the trial Judge direct himself in accordance with that section were the delay between the date of the offences and the date when charges were laid in 2010. Three issues arise out of this ground of appeal; the first is whether a Judge sitting alone is required to give himself a direction in accordance with s 34CB of the Evidence Act. The second is whether in the circumstances of this case such a direction was required. The third, assuming that a warning was required, is whether the fact that the trial counsel at trial withdrew an application to the trial Judge to direct himself in accordance with s 34CB, negated that obligation. A separate but related issue which arises in the context of this ground is whether a report from a neuropsychologist, Dr Scamps, dated 26 October 2011, should have been tendered at the trial. Counsel for the appellant on the hearing of the appeal submitted that had that report been before the trial Judge it would have significantly affected his consideration of the evidence and may have led him to come to a different conclusion about the credibility and reliability of the complainant. The Report of Dr Scamps As the appellant’s argument on this ground of appeal is predicated on the assumption that the contents of Dr Scamps’ report would have made a significant difference to the trial Judge’s consideration of this issue, it is necessary at the outset to test whether that proposition is correct. The report of Dr Scamps suggests that the appellant had memory problems and some intellectual difficulties in the sense that he was in the low average intellectual range. It was submitted that these difficulties made it difficult for the appellant to instruct his lawyers.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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