R v Bellchambers

Case [2011] SASCFC 60

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BELLCHAMBERS

[2011] SASCFC 60

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Peek)

29 June 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES

The applicant was charged with 11 sexual offences involving two complainants, being one count of inducing a child to expose a part of her body, five counts of indecent assault, and one count of procuring an act of gross indecency against the first complainant, and three counts of indecent assault against the second - he elected to be tried by Judge alone - the applicant was acquitted of one charge of indecent assault against the first victim but convicted on the other 10 charges.

A Judge refused permission to appeal - the Full Court heard the renewed application as though it was an appeal.

The applicant was on bail before, during and after his trial - submissions on sentence were adjourned until after the hearing of the appeal, during which time the applicant remained on bail.

Whether the trial Judge erred in conducting a single trial of all charges; whether the trial Judge did use the evidence of the two complainants on the basis that it was cross-admissible; whether any such use was impermissible; whether the trial Judge gave inadequate reasons for the rejection of evidence of a prosecution witness; whether the trial Judge incorrectly applied the burden of proof; whether verdicts unreasonable and not supported by the evidence.

Held:  applicant granted permission to appeal on amended Grounds 2, 3, 4 and 5.

No application to the trial Judge for separate trials - in the circumstances a joint trial of all charges was appropriate - trial Judge did not use the evidence of each complaint on the basis that it was cross-admissible - no error of law shown - trial Judge's reasons were adequate - trial Judge did not err in his consideration of the evidence or in the application of the onus of proof - verdicts not unreasonable and were supported by the evidence - appeal dismissed.

Consideration of whether it is appropriate and in the interests of justice for trial judges to defer hearing sentencing submissions, or sentencing, following a guilty verdict while the defendant pursues an appeal.

Criminal Law Consolidation Act 1935 (SA) s 56, s 58, s 58A, s 278, referred to.
Hoch v The Queen (1988) 165 CLR 292, distinguished.
Director of Public Prosecutions v Boardman (1975) AC 421, discussed.
R v B [2010] SADC 149; R v M, BJ [2011] SASCFC 50; R v Arthur (1991) 163 LSJS 18; R v…

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R v Bellchambers [2011] SASCFC 60
Case
[2011] SASCFC 60
Decision Date

CaseChat Overview and Summary

The applicant, Bellchambers, was convicted by a judge alone of ten sexual offences involving two complainants, T and C, and acquitted of one charge. The offences, alleged to have occurred between 1985 and 1990 when the complainants were children, included inducing a child to expose a part of her body, indecent assault, and procuring an act of gross indecency. The applicant had initially been refused permission to appeal his convictions, but the Full Court heard a renewed application as if it were the appeal itself.

The primary legal issues before the Full Court concerned the applicant's grounds of appeal. These included whether the verdict was unreasonable or insupportable having regard to the evidence, and whether there was an improper admission or rejection of evidence. Specifically, the applicant argued that the conduct of a single trial for all charges deprived him of a chance of acquittal, contending that the evidence relating to each complainant was not cross-admissible and therefore the charges should have been tried separately. He also raised issues regarding the judge's use of evidence of uncharged acts and the cross-admissibility of evidence between the complainants.

The Full Court considered the judge's reasoning and the legal principles applied. The trial judge found both complainants to be excellent and compelling witnesses, accepting their evidence as proving the charges beyond reasonable doubt. While the judge considered the mother of the complainants to be an honest witness, he did not regard her evidence as wholly reliable, particularly where it conflicted with that of the complainants. The judge explicitly stated that he used evidence of uncharged acts relating to one complainant only to assess the credibility of that same complainant and did not use it to assess the credibility of the other complainant. The Court found that the judge's approach to the evidence of uncharged acts was consistent with his stated intention and did not involve the improper use of evidence from one complainant to prove charges against the other.

The Full Court granted permission to amend the notice of appeal to include new grounds relating to the single trial and the use of cross-admissible evidence. However, the Court ultimately found no merit in the applicant's first ground of appeal, which argued that the single trial had deprived him of a chance of acquittal. The Court also addressed the applicant's submission that the judge had erred in his use of cross-admissible evidence, finding that the judge had expressly stated he did not use the evidence of uncharged acts from one complainant in relation to the charges concerning the other.

Orders

Orders of the court

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Background

Background to the litigation

A Judge of this Court refused the applicant permission to appeal against the convictions. The Full Court heard the renewed application as though it was the appeal.Background The applicant is now 56 years of age. He met J, the mother of T and C in 1983 when he was 29 years of age. T was born in 1976 and C in 1980. In 1984, the applicant and J commenced cohabiting in a house at Modbury. Apart from the occasions when T and C had fortnightly access visits to their father, T and C lived with them. The applicant and J continued cohabiting until February or March 1988.[3] Although the applicant then moved out of the Modbury home, he and J continued a relationship until mid to late 1989.[4] Until that time the applicant was a regular visitor at the Modbury home.[3] Ibid at [3].[4] Ibid. The conduct alleged against the applicant was said to have occurred at various times between 31 August 1985 and 1 October 1990 and all was alleged to have occurred at the Modbury home. The conduct concerning T occurred when she was aged between 9 and 12, and that concerning C occurred when she was aged between 8 and 10.The Offences Involving T Count 1 was an offence of inducing T to expose a part of her body for the purpose of gratifying the applicant’s prurient interest.[5] T said that she was alone in the lounge room with the applicant when he told her to pull down her bathers. She complied and the applicant then stared at her breast area, and later at her pubic area for 30 seconds to a minute before, feeling uncomfortable, she pulled the bathers back up.[5] Contrary to s 58A(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). Count 2 was a charge of indecent assault.[6] T said that on some three or four nights per week and over a long period, the applicant would come into her room while she was doing her homework, stand behind her, put his hand down her top, and fondle her. This occurred both before and after her development of breasts. The Judge was satisfied that this conduct had occurred but, because of the lack of specificity in the evidence of any particular occasion, regarded Count 2 as bad for uncertainty. This is the count on which the applicant was acquitted.[6] Contrary to s 56 of the CLCA. The Judge said, however, that he would treat the evidence of the conduct of the kind to which Count 2 related as evidence of uncharged acts.[7][7] R v B [2010] SADC 149 at [85]. Counts 3 and 4 both alleged indecent assaults. The applicant worked nightshifts and it was his practice to go to bed at about the time T and C were getting up to go to school. On one morning, the applicant invited T to “tuck him in”. When she did so, he pulled aside the bed cover and, holding his hand over T’s, had her masturbate him. This occurred more than once. Count 3 related to one of those occasions. In the same incident the applicant asked T, after she had masturbated him, to get on top of him so that she straddled him. He then moved her back and forwards so that his penis was rubbing against her vaginal area. This was the subject of Count 4.

Evidence

Evidence Before The Court

In my opinion, when regard is had to all these matters, it can be seen that Ground 1 has no merit. I would refuse permission to appeal in relation to Ground 1.Ground 2 – Cross‑Admissibility of Evidence By Ground 2, the applicant submitted that the Judge’s reasons indicated an inconsistency on his part concerning the use of cross-admissible evidence. The Judge considered that it was not necessary to determine whether the evidence of T and C was cross-admissible as part of the proof of any of the charges involving the other. That was because he found that the evidence of each complainant considered by itself proved beyond reasonable doubt the counts concerning that complainant. That being so, it was not necessary for him to determine whether proof of the offences concerning each complainant was aided by the evidence given by the other in relation to the offences concerning that complainant.[24][24] Ibid at [117], [121]. The applicant submitted that, despite the Judge saying that it was unnecessary to determine the issues of cross-admissibility, his reasons indicated five ways in which he had in fact used the evidence on the basis that it was cross‑admissible. It was said that each such use involved an error of law.Context and Nature of the Relationship The applicant’s first submission concerned the Judge’s use of the evidence of uncharged acts. After summarising the evidence concerning the uncharged acts, the Judge continued:[92]The whole alleged course of events provides a context in which it is said that the charged incidents occurred. In that way it can be said that the whole sequence of events throws light on the nature of the relationship between the complainants and the accused.[93]The evidence of the uncharged acts along with the evidence going directly to the charges can be used by me in determining what, if any, weight I am prepared to place on a complainant’s evidence. The evidence may assist me in concluding that a complainant’s evidence is reliable. Alternatively, it may assist the defence in showing inconsistency, unreliability or inherent improbability in the evidence, thereby raising doubt about the charges.[94]The evidence of the uncharged acts could be used to assist in explaining the background against which the offence came about and could be used to help explain why the complainant might be unclear about precise dates of the offences charged. Counsel emphasised [92] and [93] in particular, submitting that they indicated that the Judge had used the whole course of events as disclosed by the evidence of both T and C, including their evidence of uncharged acts, to assess the evidence regarding all of the charged acts. Counsel submitted that such a use involved the use of the evidence of one complainant as part of the proof of a charge concerning the other. This submission cannot be sustained. The Judge said expressly that he used the evidence of the uncharged acts concerning one complainant only in relation to his consideration of the charged acts concerning that same complainant. The Judge said:[98]I find the uncharged acts all proved beyond reasonable doubt. The evidence assists in explaining the background of how the offences came about and why each complainant was on occasions unclear as to the precise date of the allegations. I make it clear that I use the uncharged acts in the same way as I have approached the evidence of T and C. I have used the uncharged acts relating to T only to assist assessing the credibility of T. I have not used the uncharged acts alleged by T in my assessment of the credibility of C. I have approached the evidence of uncharged acts alleged by C in the same way.(Emphasis added)There is no reason to doubt that the Judge did assess the evidence of T and C in the way described in this passage.

Decision

Reasons for decision

WHITE J
By reason of her age at the time, C had only limited memory of the involvement of the Department. She did, however, recall feeling that it was her fault that the Department had become involved because it followed a statement which she had made to her natural father regarding the applicant’s behaviour.The Decision of the Trial Judge The Judge said that both T and C were “excellent witnesses”[12] and described their evidence as having “a quality and coherence to it that was compelling”.[13] He accepted their evidence as proving beyond reasonable doubt the counts (other than Count 2) in relation to which each was, respectively, a complainant.[14][12] Ibid at [7]-[8].[13] Ibid at [10]. In relation to the evidence of T see also the findings at [37] and [56].[14] Ibid at [117], [230]. The Judge considered J to be an honest witness but did not regard her evidence as being wholly reliable.[15] This assessment was important because her evidence was, in some respects, exculpatory of the applicant and was capable of undermining that of each of T and C. In particular J said that she had not seen any inappropriate conduct by the applicant in relation to the two girls and her evidence suggested, in relation to a number of the counts, that the applicant would not have had the opportunities to offend in the way alleged against him. This was particularly so in relation to those offences alleged to have occurred after the applicant had moved out of the Modbury home. When there was a conflict between the evidence of T or C, on the one hand, and that of J on the other, the Judge preferred the evidence of T and C, and in some instances rejected J’s evidence altogether. The Judge’s treatment of the evidence of J gave rise to one of the issues on the appeal which I will address in more detail shortly.[15] Ibid at [11], [202]. The applicant did not give evidence at his trial.The Grounds of Appeal At the commencement of the appeal hearing, the applicant sought permission to amend his notice of appeal so as to substitute five grounds for the existing six. The Court granted the applicant permission to substitute Grounds 3, 4 and 5 and reserved its decision on the proposed new Grounds 1 and 2. The applicant submitted that permission to appeal was not required in relation to proposed Grounds 1 and 2, contending that they raised issues of law only. Having now considered the matter, I would grant the applicant permission to amend to raise the new Grounds 1 and 2. In what follows, I will address each of the five new grounds.Ground 1 – Single Trial Ground 1 complained that the conduct of a single trial of all charges had deprived the applicant of a chance of acquittal. He contended that the evidence in relation to the charges relating to one complainant was not cross‑admissible in relation to the charges involving the other, with the result that the charges relating to each complainant should have been tried separately. The applicant also sought to support this ground by reference to the particulars set out in the notice of appeal in relation to each other ground. As they will be considered separately, I will not consider them in relation to this ground.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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