R v Bolte

Case [2010] SASC 112

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BOLTE

[2010] SASC 112

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Layton and The Honourable Justice Kourakis)

27 April 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER - JOINT TRIAL

EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT - PARTY'S FAILURE TO GIVE OR CALL EVIDENCE

Appellant was charged with 7 counts of indecent assault and one count of unlawful sexual intercourse against his two step-granddaughters – the case proceeded by consent as a joint trial in relation to both complainants – appellant was convicted by judge alone of 4 counts of indecent assault and one count of unlawful sexual intercourse – judge found the appellant not guilty on count 2 because of differences in the first complainant’s evidence and uncertainty in her recollection – judge found the appellant not guilty on count 8 by reason of a difference in evidence between the second complainant and another witness – whether verdicts unsafe and unsatisfactory – omissions and inconsistencies in the evidence and complaints of the complainants – whether the judge’s finding of not guilty on count 2 ought to have led to findings of not guilty on other counts concerning the first complainant – whether  judge’s finding of not guilty on count 8 ought to have led to findings of not-guilty on other counts concerning the second complainant - complainants’ aunt had previously alleged sexual misconduct against the appellant – complainants aware of aunt’s allegations - they had discussed their allegations with each other and with the aunt – contamination of evidence was not expressly put to the complainants at trial – whether judge erred in failing to find a real risk of contamination of the complainants’ accounts – aunt not called at trial – no request by the appellant that aunt be called – whether judge erred in failing to draw an adverse inference against the prosecution for failing to call the aunt – whether failure to call the aunt as a witness gave rise to a miscarriage of justice.

Held:

(per Layton J (Gray and Kourakis JJ concurring)): appeal dismissed – judge gave consideration to inconsistencies and omissions in complaints and evidence – matters involving inconsistencies and unreliability arising on counts 2 and 8 were different from those of other counts – inconsistencies on count 2 did not result from a desire to deceive – uncertainty about count 8 was confined to the circumstances of that count - judge’s findings of guilt beyond reasonable doubt on the charges found proved were open on the evidence – judge adequately dealt with issue of contamination – judge’s finding that there…

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R v Bolte [2010] SASC 112
Case
[2010] SASC 112
Decision Date

CaseChat Overview and Summary

In the case of R v Bolte, the appellant appealed against his conviction on two grounds. Firstly, the appellant argued that the trial judge erred by not drawing an adverse inference against the prosecution for failing to call the aunt of the complainants as a witness. Secondly, the appellant contended that the verdicts were unsafe and unsatisfactory due to inconsistencies and omissions in the complainants' evidence, which should have led the trial judge to conclude that their evidence was not reliable to support a finding of guilt beyond reasonable doubt. Additionally, the appellant argued that there was a real risk of contamination or reconstruction in the complainants' recollections.

The legal issues the court was required to decide included whether the trial judge erred in failing to draw an adverse inference against the prosecution for not calling the aunt as a witness and whether the failure to call the aunt as a witness gave rise to a miscarriage of justice. Furthermore, the court had to determine whether the verdicts were unreasonable or unsatisfactory considering the inconsistencies and omissions in the complainants' evidence. The court also needed to assess whether the joint trial of the charges was appropriate given the nature of the offences.

The court dismissed the appeal, finding no miscarriage of justice in the trial proceedings. The court held that there was no substance to the complaint that there had been a breach of prosecutorial duty in not presenting the aunt as a witness. Regarding the second ground of appeal, the court concluded that there were no inconsistencies or omissions in the complainants' evidence that would have led the trial judge to conclude their evidence was unreliable. The court further held that the joint trial of the charges did not result in a miscarriage of justice given the approach taken by the parties and the trial judge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

However, the usual rule, if evidence is not cross-admissible, is that there should be separate trials. As Dawson J observed in De Jesus:[4]In this case, however, there is no suggestion that the evidence admissible upon one count was admissible in proof of the other. That is because of the ordinary principle that similar fact evidence which shows no more than propensity is to be excluded because of the inevitable prejudice which it carries with it. In cases where the prejudice is such that upon a joint trial it cannot be satisfactorily excluded by a direction to the jury from the trial judge, then separate trials should be required and that is the question to which the trial judge ought to have directed his mind. I have said that the very nature of some offences is such that, as a general rule, they ought not to be tried together if the evidence on one count is not admissible on another count and I think that sexual offences fall into that class. That was the view taken by the Chief Justice in Sutton v R and it is a view which is acted upon in practice. It is a view which derives support from the majority in R v Boardman [1975] AC 421. I prefer to express myself in a general way rather than categorically, because it is possible to conceive of instances where the high degree of prejudice which can usually be expected to arise from evidence of offences of a sexual nature does not in fact arise or may be adequately overcome by a proper direction. Where, for example, the sole evidence implicating an accused person in a number of offences of rape is the one confession, it may well be that no unfair prejudice will arise from a joint trial of those offences. Cf R v McDonald (1979) 21 SASR 198. But as a general rule sexual offences from a special class of offences which should be tried separately except where the evidence upon one count is admissible upon another count. The trial judge, in looking for some special feature in this case to justify an order for separate trials, failed to have regard to the nature of the offences involved. That, of itself, required the making of the order sought. [Emphasis added][4] De Jesus v R (1986) 22 A Crim R 375 at 390-391. The need to protect an accused from a risk of prejudice when evidence is not cross-admissible was discussed in Sutton[5] where Brennan J observed:When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.[5] R v Sutton (1984) 152 CLR 528 at 541-542.

Decision

Reasons for decision

GRAY J
The argument on appeal had the hallmark of the defendant seeking to take a point on appeal that had been, as a result of a tactical decision, not pursued at trial. In the circumstances outlined above, the allegation made on appeal that there had been some breach of prosecutorial duty in not presenting the aunt as a witness, should be rejected. There is no substance to the complaint. There is nothing to suggest any breach of duty by the prosecutor. Conclusion I would dismiss the appeal.LAYTON J: This is an appeal against conviction on two bases. First, that the learned trial Judge erred in failing to draw any inference adverse to the prosecution by reason of the failure to call Ms A (the Aunt of the complainants). Secondly, that the verdicts were unsafe and unsatisfactory by reason of inconsistencies and omissions in behaviour by both of the complainants, which should have led the trial Judge to conclude that their evidence was not reliable to support any finding of guilt beyond reasonable doubt. Further, with regard to the second ground, that there was a real risk of contamination/reconstruction in respect of the recollections of both complainants. The appellant was tried by judge alone in respect of eight counts of alleged sexual offending against two sisters who were his step-granddaughters, being daughters of the appellant’s wife’s daughter. All of the offending occurred on a small farming property at Currency Creek, which is owned by the appellant and his wife. There was no application for separate trials and the Crown did not proceed on the basis that there was evidence of cross admissibility. The trial Judge proceeded in like manner. There is no complaint in this appeal about the trial proceeding in this manner. It is not necessary to consider whether an application for separate trials would have been granted if sought[19] because, in the context of a trial by Judge alone and the approach taken by the parties, there has not been a miscarriage of justice in this case for the reasons discussed hereafter.[19] Phillips v The Queen (2006) 225 CLR 303, 327-8 [78]-[79]. The common background which was not the subject of appeal is set out in the trial Judge’s reasons, as follows:[20]The accused, aged 62 years, is married to Doris Bolte. They have been together for 23 years and married for 21 years. Mrs Bolte’s previous husband died leaving her with four children, the youngest of whom is a daughter, Ms A. Another of Mrs Bolte’s daughters is Ms R and the two complainants, C1 and C2, are her daughters. In other words, the two complainants are step-granddaughters of the accused.Towards the end of 1988, Mrs Bolte’s daughter Ms A (the accused’s step daughter) complained to the police that the accused had indecently assaulted her. The accused denied the allegations and was acquitted by the jury on all charges. Mrs Bolte believed the accused’s denials and always remained supportive of him. Thereafter, Ms A moved to Queensland and, until close to the time when the present allegations were made to the police, had little to do with Mrs Bolte and the accused. There has been some contact in the past couple of years which the accused tolerates for the sake of his wife. The accused remains wary of Ms A.Going back further in time, in the early 1980s, the accused, under the surname of Geesing, was charged and convicted with the abduction and murder of a ten year old girl, Louise Bell. On appeal, his conviction was quashed but no order was made for a re-trial (R v Geesing). Upon his release from custody, the accused changed his name, obtained several jobs in a part-time capacity, eventually securing employment at Mitsubishi, Lonsdale, where he met his present wife.The property at Currency Creek was bought about 15 years ago by the accused and his wife. The accused ceased work at Mitsubishi when aged 54 years due to a work injury. He has only worked on the farm since that time. The farm is about 58 acres and the accused and Mrs Bolte earn money from the various animals that they keep.There are some other facts that appear to be common ground.There is no doubt that Mrs Bolte’s grandchildren, C1 and C2 (to her daughter Ms R), visited the farm from a young age until about mid-2007. Generally, C1 and C2 would come with their parents for weekends and perhaps some of the school holidays. Sometimes C1 and C2, as they became a little older, would stay without their parents and sometimes one would stay or visit without the other.It was very much the case for the defence that Mrs Bolte had a number of knee operations that restricted her mobility. There were a number of them between 1998 and 2008. The initial knee injury was in November 1997.[Footnotes omitted.][20] R v Bolte [2009] SADC 97 (Unreported, District Court of South Australia, Judge Rice, 4 September 2009), [9]-[15].The Charges:

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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