R v BURGESS
[2019] SASCFC 109
•18 September 2019
Supreme Court of South Australia
(Court of Criminal Appeal)
R v BURGESS
[2019] SASCFC 109
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Nicholson)
18 September 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
EVIDENCE - DOCUMENTARY EVIDENCE - PROOF OF HANDWRITING AND SIGNATURE - OPINION EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
Appeal against conviction.
The appellant was tried by a jury and convicted of one count of persistent sexual exploitation of a child contrary to section 50 of the Criminal Law Consolidation Act 1935 (SA). The complainant was 14 years old at the time of the offending. The appellant had previously been in a relationship with the mother of the complainant, SM.
During trial, a handwritten letter allegedly written by the complainant was tendered by the Prosecution as initial complaint evidence pursuant to section 34M of the Evidence Act 1929 (SA). The letter contained details of the offending and was said to have been given by the complainant to SM shortly after the offending took place. A second handwritten document was tendered during trial by the defence. It was the defence case that SM had written both documents.
During the cross-examination of both the complainant and SM, the trial Judge disallowed questions on the topic of similarities and/or differences between the handwriting of the complainant and SM on the basis that the witnesses were not handwriting experts. The appellant complained on appeal that the trial Judge erred in restricting defence counsel’s cross-examination resulting in a miscarriage of justice.
Held per Kourakis CJ and Stanley J, allowing the appeal:
1. The trial Judge erred in restricting the cross-examination of both the complainant and SM resulting in a miscarriage of justice.
2. The conviction set aside and new trial ordered.
Held per Nicholson J (dissenting), dismissing the appeal:
1. The trial Judge erred in the reason her Honour gave for disallowing the cross-examination; comparison evidence in respect of two pieces of handwriting is not restricted to qualified experts. However, section 30 of the Evidence Act 1929 (SA) had to have been but had not been complied with, and as such, her Honour was correct in ruling the line of questioning unavailable to the appellant. There was no error of law.
2. Any failure by defence counsel to deploy section 30 so as to properly pursue the cross-examination in issue did not deprive the appellant of a chance of an acquittal that was reasonably open to him; there was no miscarriage of justice.
Criminal Law Consolidation Act 1935 (SA) s 50; Criminal Procedure Act 1921 (SA) s 158; Evidence Act 1929 (SA) s 30, s 34M; Evidence Act 1985 (Vic) s 148, referred to.
Adami v The Queen (1959) 108 CLR 605, applied.
R v Mazzone (1985) 43 SASR 330; R v Baftiroski [2018] SASCFC 83; R v Burns & Collins (2001) 123 A Crim R 226; R v Browne-Kerr [1990] VR 78; R v Winfield & Ors [1997] SASC S6027, discussed.
R v Ewing [1983] QB 1039; Doe d. Mudd v Suckermore (1837) 5 Ad & E 703; Nudd v The Queen (2006) 80 ALJR 614; TKWJ v The Queen (2002) 212 CLR 124; R v B, DWL; R v B, CG [2019] SASCFC 101, considered.
R v BURGESS
[2019] SASCFC 109Court of Criminal Appeal: Kourakis CJ, Stanley and Nicholson JJ
KOURAKIS CJ: I have had the advantage of reading the judgment of Nicholson J. I accept that the evidence that the complainant was the author of exhibit P5 is very strong. However, unfortunately and with respect, I differ from his Honour on the question of whether the Judge erred in law in disallowing the questions concerning handwriting comparison asked by the appellant’s counsel, and on the question whether the appellant thereby lost an opportunity for an acquittal which was open to him.
I deal first with the question of whether the questions should have been disallowed. Section 30 of the Evidence Act 1929 (SA) (the Evidence Act) regulates the admissibility of lay or expert opinion evidence on the authorship of handwriting. It allows opinion evidence on the genuineness or otherwise of disputed writing only if the premise of the comparison, the genuineness of the comparator, has been proved to the satisfaction of the judge. Section 30 of the Evidence Act departs from the traditional allocation of responsibility between judge and jury for the law and facts respectively which characterises the common law jury trial. The reasons for doing so are to be found in historical anomalies in the development of the common law rules of evidence concerning handwriting.
The origin of s 30 of the Evidence Act, and its analogues, is discussed in Wigmore on Evidence.[1] Provisions analogous to s 30 were enacted to overcome ancient common law rules which limited comparisons to those writings brought in by witnesses who had seen the written comparators made, or were familiar with the writing of the author. That rule was obviously inconvenient and frustrated the development and deployment of forensic handwriting expertise in the courts. The rule that the comparator had to be proved to the satisfaction of the judge to be genuine by evidence was designed to avoid a ‘confusion of issues before the jury’.[2] It is perhaps for that reason that Bollen J referred to s 30 of the Evidence Act as an ‘enabling provision’ in R v Mazzone.[3]
[1] John H Wigmore, Evidence in Trials at Common Law (Little, Brown and Co, 3rd revised ed, 1978) vol 7 ch 70 at [1991]-[2015] (Wigmore on Evidence).
[2] Wigmore on Evidence at [2020].
[3] (1985) 43 SASR 330 at 339.
However, the cross-examination of witnesses who have testified about the authorship of a written document, whether pursuant to s 30 of the Evidence Act or because they wrote it or saw another write it, is a different question altogether. Impeaching evidence of authorship is treated separately by Wigmore.[4]
[4] Wigmore on Evidence at [2015].
In modern times, and given the wide basis on which evidence of the authorship of a document and comparisons of handwriting may be admitted, whether by reference to s 30 of the Evidence Act or otherwise, the criterion for allowing or disallowing a question in cross-examination must be whether the answer to it may rationally affect the weight of the testimony it seeks to impeach.
The cross-examination of the complainant was calculated to suggest that, contrary to her testimony, the handwritten complaint, exhibit P5, was written by her mother SM. The cross-examination sought to do so by asking the complainant questions about the similarities between exhibit P5 and SM’s Family Court affidavit, exhibit D6. There was evidence which supported an inference that exhibit D6 was in SM’s handwriting. Exhibit D6 was part of an affidavit sworn and signed by SM.
As Nicholson J has observed, the handwriting in which the name is written is similar to the handwriting of the substantive paragraph. SM initially testified that she could not remember if she wrote the name and address on exhibit D6, and that the appellant had written the paragraph following the words ‘make oath and say’. She later, when asked by the Judge, said that she was ‘pretty sure’ she wrote the name and thought she wrote the address on the affidavit. Moreover, there was the evidence of the complainant that the writing on exhibit D6 was in her mother’s hand.
Any similarities between exhibits P5 and D6 were therefore capable of casting doubt on the complainant’s testimony. The appellant carried no onus. It was sufficient for the appellant’s purpose to show that there was some reason to doubt the complainant’s testimony that she had written the complaint. To that end, it was necessary to put such similarities as there might have been to the complainant for her comment. That cross‑examination might have elicited answers conceding some degree of similarity. However, the questions were wrongly disallowed by the Judge on her Honour’s mistaken view that only an expert could give comparison evidence.
I turn next to the cross-examination of SM. It was an aspect of the appellant’s defence that SM had written the opening paragraph of exhibit D6. If SM had written it, her testimony that she swore the affidavit only at the urging of the appellant was less likely to be true, and the affidavit became a stronger basis on which to impeach her credit. Cross-examination of SM about the handwriting on exhibit D6 could affect the weight of SM’s evidence that she did not write it. Furthermore, a concession that the handwriting in exhibit D6 was similar to that in exhibit P5 might leave a doubt about SM’s testimony that the appellant had written that paragraph. SM had earlier accepted that the complainant’s handwriting was similar to hers.
The appellant having been wrongly denied the opportunity to challenge by cross-examination the complainant’s testimony that she wrote exhibit P5, and SM’s testimony that the appellant had written exhibit D6, it is not possible to conclude that there has been no miscarriage of justice on evidence which is necessarily incomplete. I would therefore allow the appeal and order that there be a new trial.
I acknowledge the apparent strength of the prosecution case and the probability on the face of the contested documents that the authorship is as deposed by the complainant and SM. It follows that the complainant may be subjected unnecessarily to the ordeal of a second trial. However, the procedural right which the appellant has been denied is an important one in an adversarial trial. The facts are the proper province of the jury. I am unable to say with certainty that a jury would reach the same conclusion if the cross-examination were allowed.
I would hold that the appellant does not require an extension of time. An email was sent to the Registry on 7 April 2017 by an administrative officer of the Director of Public Prosecutions stating that ‘The Applicant has abandoned his appeal. A Notice of Discontinuance will be filed.’ However, no Notice of Discontinuance pursuant to r 125 Supreme Court Criminal Rules 2014 (SA) was ever filed by the appellant. I would, in any event, have extended the time in which to appeal. I acknowledge that a new trial will be distressing for the complainant and SM. However, the right to a trial according to law must be accorded more weight in the circumstances of this case.
STANLEY J: I would allow the appeal. I agree with the reasons of Kourakis CJ. I consider the trial Judge’s wrongful restriction of the cross‑examination of the complainant and her mother, SM, on the handwriting in exhibits P5 and D6 denied the appellant a fair trial. This has resulted in a miscarriage of justice which has deprived the appellant of the opportunity of an acquittal. In my view, in these circumstances, notwithstanding the strength of the prosecution case, there is no scope for the application of the proviso. I cannot be certain a jury would have found the appellant guilty if the cross-examination had proceeded.
The conviction must be quashed and a new trial ordered.
NICHOLSON J.
Introduction
On 7 February 2017, the appellant was convicted, following a trial before a jury in the District Court, of the offence of persistent sexual exploitation of a child contrary to section 50 of the Criminal Law Consolidation Act 1935 (SA). An application for permission to appeal was filed on 28 February 2017, within the time required by the rules of Court. The single ground of appeal relied on was that the verdict of the jury is unsafe and unsatisfactory.
By email, sent to the Registry in April 2017, advice was received that the application for permission was to be abandoned. However, the matter was relisted earlier this year before a Judge of this Court with respect to a substituted ground of appeal. At the permission hearing, both parties and the Judge agreed that the new proposed ground probably gave rise to a question of law such that permission was not required. The matter was referred to the Court of Criminal Appeal for any question of permission to be considered in conjunction with the hearing of the appeal. The Judge also referred to the Court of Criminal Appeal the issue of the extended delay in seeking to have the appeal reinstated.
Of potential significance to the prosecution case was a handwritten letter, exhibit P5, said to have been authored by the complainant and admitted as evidence of initial complaint pursuant to section 34M of the Evidence Act 1929 (SA). There were some indications throughout the trial that the appellant wished to contend before the jury that the letter of complaint had not in fact been authored by the complainant but by her mother, SM. The appellant argued that the complainant and SM had a motive to and had conspired to bring a false claim against him. During the appellant’s cross-examination of both the complainant and SM with respect to the authorship of exhibits P5 and D6,[5] certain questions were disallowed by the Judge.
[5] Exhibit D6 is a handwritten document (to be referred to in more detail later in these reasons) signed by SM. The question of whether or not it was in her handwriting was the subject of conflicting evidence.
The proposed substituted ground of appeal that came before the Judge at the permission hearing was in these terms.
The Learned Trial Judge erred in restricting the ability of defence counsel to cross examine the complainant upon the handwriting in exhibits P5 and D6.
Shortly prior to the hearing of the appeal, the appellant filed a further proposed amended ground of appeal in these terms.
The Learned Trial Judge erred in restricting the ability of defence counsel to cross examine the complainant and witness SM upon the handwriting in exhibits P5 and D6.
Permission to so amend was granted at the hearing of the appeal. The issues before the Court arising from this ground of appeal are:
(i)Did the Judge err in restricting defence counsel’s cross-examination of the complainant and/or the complainant’s mother, SM?
(ii)If so in either case, did the Judge make a wrong decision on a question of law, so as to engage subsection 158(1)(b) of the Criminal Procedure Act 1921 (SA)? If not, did any such error give rise to a miscarriage of justice so as to engage subsection 158(1)(c) of the Criminal Procedure Act 1921?
(iii)If the Judge did make a wrong decision on a question of law or if otherwise there has been a miscarriage of justice, might the proviso operate on the basis that “no substantial miscarriage of justice has actually occurred”.[6]
[6] Subsection 158(2) of the Criminal Procedure Act 1921 (SA).
Background
SM and the appellant were in a relationship during 2013 and 2014 and in December 2013 their daughter, IB, was born. For some time, SM, the appellant, the complainant, her half-sister, IB, and her half-sister, E, lived together in an Adelaide suburban house. However, the relationship between SM and the appellant faltered and the appellant moved elsewhere. In early 2015 the complainant, then 14 years of age, left her mother’s house and moved in with her paternal grandparents. E returned to her father’s custody during this time. Soon after that SM resumed living with the appellant in his house. The complainant regularly visited at the appellant’s house, usually after school. However, in May 2015, SM was arrested for assaulting the appellant and her bail conditions precluded her from contacting him as a result of which she moved out of the house. In July 2015, SM was arrested again at the appellant’s home on a warrant for failing to appear in court in relation to the assault matter. SM was also charged with breach of bail. IB remained living with the appellant. The complainant continued to visit IB and the appellant at his house each week, usually on a Wednesday after school. It was during this period that the charged offence was alleged to have been committed.
The prosecution case depended on the evidence of the complainant with some support from various text message exchanges between the complainant and the appellant and a letter of complaint said to have been written by the complainant and given to SM. According to the complainant, the appellant’s demeanour towards her changed after SM was arrested in July 2015. He began to flirt with the complainant, started to touch her on her waist and thighs and complimented the complainant on her appearance. According to the complainant, the relationship which had been a close step-daughter and step-father one, developed into a sexual relationship.
The sexual activity about which the complainant gave evidence included a number of occasions of indecent assault by way of kissing on the lips and a number of occasions of full penile-vaginal sexual intercourse. The complainant said in her evidence that she and the appellant did not have sexual intercourse on her first visit after SM’s arrest but they did the following week and on a weekly basis thereafter. The prosecution case was that the offending persisted over a relatively short period of time, particularised in the information as between 29 July 2015 and 26 August 2015, and that intercourse occurred seven or eight times during that period. The complainant described the circumstances and nature of the various sexual encounters in significant detail which it is unnecessary to recount here.
Whilst the prosecution case relied upon the evidence of the complainant and her mother as a complaint witness, there was also a large number of phone text messages between the complainant and the appellant. Most of these were benign. However, some, on one view, were capable of being interpreted as sexual in nature. On the other hand, according to the defence submission, they were also capable of being seen as consistent with a good relationship between a step-father and a step-daughter at time when the step-daughter was suffering considerable stress. In addition, a few days prior to the first occasion sexual intercourse was said to have occurred, the complainant sent a picture message from her phone to the appellant’s phone showing the complainant from the waist up wearing only her bra.
In due course, the complainant moved back to live with SM. According to the complainant, this was shortly after the last occasion of sexual intercourse with the appellant. Soon after, on or about 4 September 2015, SM saw on the complainant’s phone what SM considered to be inappropriate text communications between the appellant and the complainant. She confronted the complainant about these text messages. The complainant was unable to articulate what had occurred but went to another room in the house and wrote a four page letter to her mother outlining the nature of her relationship with the appellant.
SM said in evidence that she was able to read only the first page of the document which contained a statement to the effect that the complainant had lost her virginity to the appellant. SM straight away took the complainant to the police and reported the matter. SM provided the letter of complaint to the police. The appellant was arrested on 7 September 2015 and interviewed by the police. He acknowledged that the complainant had attended his house on some but not all of the occasions alleged but denied engaging in any sexual activity with the complainant. The appellant did not give evidence at the trial but his records of interview disclosing categorical denials of any inappropriate behaviour were played before the jury.
The letter of complaint – exhibit P5
The prosecution case depended essentially on the jury accepting the complainant’s evidence beyond reasonable doubt as to the nature of the sexual relationship said to have existed between her and the appellant. Whilst the text messages and the photo were relevant and may have been accorded some weight by the jury, the case really turned on the jury’s willingness to accept the complainant’s evidence in the face of the appellant’s denials in his records of interview. As such, the letter of complaint in exhibit P5 was potentially important evidence before the jury. The Judge provided the jury with directions concerning the permissible and impermissible uses to which this evidence of complaint might be put and with respect to which there has been no challenge.
It is unnecessary to set out all four pages of exhibit P5; a sufficient understanding of the contents of the letter can be discerned from the first page being the page read by SM immediately upon her receipt of the letter.
What I am about to write has ruined me. I just want to say i’m really sorry that i’m such a disappointment and I don’t blame you if you hate me and are ashamed to be my mum. I’m so sorry. A few days after you got arrested, (when I saw you being driven away I felt so empty and that I didn’t have a life or anything to live for) [A][7] and I started to talk. Him more so suggesting inappropriate behaviour. From reading texts, you probably realised.
[7] The author here and throughout exhibit P5 refers to a first or given name, being the same as the first or given name of the appellant.
Because I wasn’t thinking of the consequences, I just went along with it.
A day when I went to go see [IB], [A] again suggested things again. Things went from there. I just want to say I’m no longer a virgin.
The page appears in this form:
Later in the letter of complaint are the following statements.
I didn’t want to lose my virginity to this person but I felt like I was forced to. He made me believe it was right.
. . . .
Those cuts on my arms you asked about on Monday – they aren’t where I have been itching it’s where I been cutting – this has happened a lot. I have been so so depressed.
. . . .
[A] made me believe what we where [sic] doing was right and helping. It happened on 7 or 8 occasions.
Again I’m sorry
The letter of complaint itself was a powerful statement. It demonstrated consistency with the complainant’s evidentiary account as to the offender, the nature of and circumstances of the offending and the number of times sexual intercourse occurred. It was a near contemporaneous account.
Of crucial importance, as the Judge pointed out to the jury on more than one occasion during her summing up, was the need for the jury to be satisfied that this letter had in fact been written by the complainant and not by somebody else, in particular, SM. The defence case in this respect was best articulated by the Judge in her summing up in the following terms.
But, members of the jury, I remind you that before you could use the evidence of complaint in the way I have set out you would first need to be satisfied of [the complainant’s] and [SM’s] evidence that [the complainant] did in fact write the letter, P5, and complained to her mother in the way described having regard to the fact of [SM’s] affidavit which she now says is a lie and the other challenges to both their credibility.
The defence case put on behalf of the accused [the appellant] is that [the complainant] has lied and fabricated the allegations against him for reasons best known to her. The accused in his record of interview with the police, P7, said that he believed the allegations were made by [the complainant], at the instigation of her mother, to take away his daughter permanently. The accused also said that [SM] is good at fabricating stories and has been known to hack into other people’s phone and email accounts, including her ex-partner [R], and that he believes [the complainant’s] mother, [SM], was trying to fabricate the allegations against him to take away their daughter, [IB], from him.
Further, members of the jury, during the course of cross-examination of both [the complainant] and [SM] both were asked whether [SM] in fact wrote the letter of complaint, P5, and of course both denied this suggestion. In this way you may think that there has been a suggestion by defence that while the accused does not know why [the complainant] has fabricated the allegations, the timing of the allegations are important and one possible reason is so that the accused is prevented from having exclusive access to [IB] and so that [SM] and [the complainant] both have exclusive access to the child.
To that end [SM] agreed that after 4 September 2015 when the matter was reported to the police she stopped the accused from having access to the child and sought a court order that he be denied access. There is no evidence about the outcome of that application. [The complainant] also gave evidence she believed [IB] should stay with her mother.
So members of the jury, you will have to consider the possibility that [the complainant] had a motive to lie and fabricate the allegations. A motive to lie is of course relevant to [the complainant’s] credibility and may, if you see fit, undermine her credibility.
[The Judge proceeded to give a conventional direction concerning a motive to lie and including the direction that the defence has no obligation to prove a motive to lie].
The evidence of the complainant concerning the provenance of exhibit P5
During the examination in chief, the complainant was asked about the occasion when SM looked through the messages on the complainant’s telephone. The complainant said that, SM asked the complainant “if something happened between [the appellant] and I”. Thereafter the following exchange occurred.
Q.What did you say.
A.I said 'Yes' but I couldn't tell her in my own words exactly what happened so I wrote her a letter.
PROSECUTOR: I ask that the witness be shown a handwritten four page document.
XN
Q.Looking at the document produced, is that a photocopy of the letter that you wrote.
A.Yes, it is.
Q.Where were you when you wrote that.
A.I was in the house my mum was living in, which was her friend's. I was in the, the back bedroom where we were staying.
.. . .
Q.What did you do with the letter, having written it.
A.I gave it to my mum.
Q.And did you and your mother speak about the letter.
A.It was mostly just crying and after she read it she said 'Everything will be okay' and that she's there for me.
HER HONOUR
Q.And what are you speaking of in the letter.
A.I am speaking of the times that I was with [the appellant].
Q.And when you say you were 'with [the appellant], what do you mean by that.
A.Inappropriate behaviour and having sex.
EXHIBIT #P5 LETTER FROM THE COMPLAINANT [THE COMPLAINANT] TO
HER MOTHER TENDERED BY [PROSECUTOR]. ADMITTED.
COPIES OF EXHIBIT P5 HANDED TO JURY
XN
Q.… after you had shown that letter to your mum -
A.Yeah.
Q.- did you and she travel to the police station.
A.Yes, we did.
Q.Do you know where the letter went when you travelled to the police station.
A.I believe that it was given to the police officer that we were talking to.
Q.Did you do that.
A.No, mum did.
During cross-examination, the complainant agreed that the letter had been written on 4 September 2015 at a time she was living with her mother and IB. She was questioned on the circumstances as to how the letter was brought into existence and, in effect, repeated the evidence she had given in chief. The complainant confirmed, in response to a question by the Judge, that the letter was the first time she had told anyone about the sexual relationship she maintained had existed between her and the appellant.[8] Having permitted the complainant to re-state her evidence as to how exhibit P5 came into existence, the cross-examiner dipped his toe in the water, although without apparent conviction.
Q. Did your mother write that letter.
A. No, she did not.
Q. Are you certain about that.
A. Yes, I am very certain.
[8] According to section 34M of the Evidence Act 1929 (SA), for evidence of complaint to be admissible in a sexual offence case, the complaint relied on must be “an initial complaint”.
The cross-examiner then had the letter, exhibit P5, placed before the witness after which the following exchange occurred.
Q.Firstly, before I ask you some questions about this letter, do you know your mother's handwriting, are you familiar with your mother's handwriting.
A.Yeah.
Q.And do you say that the handwriting on Exhibit P5, the four-page letter, is your handwriting.
A.Yes, it is. My handwriting has got better than this though.
Q.Do you normally write in print or cursive.
A.In print.
Q.And do you write in cursive or print today mostly.
A.Mostly print.
Q.Do you recall yesterday you were approached by a police officer and you were asked some questions relating to the images that we've heard evidence about -[9]
[9] This and the next two questions and answers concern a topic which was never developed. It may be that the cross-examiner was initially interested in this “handwritten statement” because it is in cursive writing quite different in appearance from that in exhibit P5. However, the statement was never tendered and the topic of the genesis of the statement never pursued in evidence. I have assumed that the reason for this is that counsel took the view that whilst the handwritten statement had been signed by the complainant it had been recorded by the police officer who took the statement.
A.Yes.
Q.- that were sent by you on your phone to [the appellant’s] phone.
A.Yes.
Q.And you provided a handwritten statement on that topic, didn't you.
A.Yeah.
Q.Now, you say that you're familiar with your mother's handwriting -
A.Yeah.
Q.- is that correct.
A.Yes.
Q.Do you know within your own knowledge whether your mother has a preference to write in print or cursive.
A.I'm pretty sure it's print.
Q.I want to put a document in front of you, ... It's a document which is entitled 'Form 36 Affidavit'.
HER HONOUR: Is this the witness's document?
DEFENCE COUNSEL: No, it's not.
XXN
Q.Now, that document, you see the name at the top, ‘[SM]’.
A.Yeah.
Q.That's your mother. Now, that's not your document is it, that's not your handwriting.
A.No.
Q.Is it your mother's handwriting.
A.Yeah.
Q.Do you have similar handwriting to your mother.
A.Not really.
Q.In what ways or in what way is it different.
HER HONOUR: [Defence counsel], I disallow these questions. She can't comment on any similarities or otherwise in respect of the two pieces of handwriting. That's for an expert.
QUESTIONS DISALLOWED
DEFENCE COUNSEL: Yes.
HER HONOUR: Do you want to mark that document?
DEFENCE COUNSEL: Yes, I would, yes.
MFI #D6 DOCUMENT ENTITLED ‘[SM]’ MARKED FOR IDENTIFICATION.
It can be seen that, without counsel for the prosecution having objected and without hearing from defence counsel, the Judge intervened and ruled disallowing “these questions”. On the other hand, counsel might have but did not ask to be heard. When considered in context, I understand the Judge to have ruled against the immediately preceding two questions: “Do you have similar handwriting to your mother” and “In what ways or in what way is it different”. The question immediately before those questions, “Is it your mother’s handwriting” was plainly admissible as an example of non-expert opinion evidence (see the later discussion of this notion).
The evidence of SM concerning the provenance of exhibit P5
Before setting out the evidence of SM directly concerning this issue some matters of context should be identified. It is common ground that the letter of complaint, exhibit P5, came into existence on or about 4 September 2015 and was taken by SM and the complainant to the police on that day. This was a matter of a week or less after the alleged sexual relationship between the complainant and the appellant had come to an end. On the prosecution case, at the time SM intervened and took the complainant to the police she was supportive of the complainant or at least had expressed no disbelief in the complainant’s account. However, some seven months or so later on 20 January 2016, SM swore an affidavit apparently to be deployed in family law proceedings.
In the affidavit, SM expressed support for the appellant and described the allegations against him as false and misleading. The front or cover sheet of the affidavit was admitted into evidence as exhibit D6 and certain statements in the body of the affidavit were introduced during the cross-examination of SM although the affidavit itself, apart from the front sheet, was not tendered.
I will refer to the affidavit and to exhibit D6 in more detail later in these reasons. However, when SM came to give her evidence in the present trial on 1 February 2017 (some 12 months after having brought exhibit D6 into existence) she said that it had been a “mistake” to swear the affidavit, that various aspects of its contents were not true and that in some respects she had lied. As a consequence, and in terms of a credit attack on SM, the jury had before them a witness who had either deliberately sworn a false affidavit or had lied to the jury under oath when telling the jury that she had sworn a false affidavit.
In addition to uncontroversial background matters, SM’s evidence in chief was directed to her account of the circumstances in which the complainant prepared the letter of complaint and provided it to SM. The account given by SM was essentially consistent with that given by the complainant. Immediately prior to cross-examination, the following exchange occurred between the Judge and SM.
Q.Before you [counsel for the appellant] start, I just want to clarify one thing. [SM], I know this is difficult, I just need you to look at P5, the letter.
A.Yep.
Q.Whose handwriting is that.
A.That is my daughter's handwriting.
Initially, the cross-examination by counsel for the appellant was directed to the nature of the relationships between SM and the appellant and between SM and the complainant, the fact of SM’s addiction to methamphetamine and the effect that addiction may have had on her relationships with others including the appellant. The evident purpose of the cross-examination at this stage was to lay the ground work for a submission that SM was angry with the appellant both generally and because he had the care and custody of IB, such that SM may have had a motive to do harm to the appellant if only to secure an advantage in terms of any custody dispute with respect to IB.
The cross-examiner then moved to the topic of the complaint letter and again broached the authorship of the letter in a somewhat diffident fashion.
Q.The letter you say was written by [the complainant] on 4 September 2015, that is correct, isn't it.
A.That's correct.
Q.That was written by [the complainant], was it.
A.That was written by [the complainant], yes.
Q.It wasn't written by you.
A.No.
Counsel then touched again on the disharmony between SM and the appellant at the time the complaint letter was written, concerning the Family Court proceedings and the custody of IB, before taking SM again through the circumstances in which the complaint letter had come into existence.
Counsel then moved to the topic of the affidavit sworn by SM on 20 January 2016. Counsel obtained these concessions from SM as to the contents of the affidavit:
(i)that she effectively stated that she believed or thought that the allegations against the appellant were false;
(ii)that at the time the complaint letter was written she, SM, was under the influence of methamphetamine;
(iii)that she suspected at the time she swore the affidavit in January 2016 that a former partner, RD (the father of her second daughter) may have pressured the complainant[10] to make up the allegations;
(iv)that the appellant is “an amazing, loving father to our daughter [IB] and while we are not in a relationship we are good friends”; and
(v)that she did not (at the time of swearing the affidavit) believe that the appellant “is capable of harming a child in any way”.
[10] The transcript records the cross-examiner saying “may have pressured E” (the complainant’s half-sister). However, the context suggests this must have been an error and the cross-examiner meant to say the complainant. That would appear to be how SM understood the question.
However, SM also stated that she should not have written the affidavit because some of the things “are not true” and that she “made a mistake in writing that affidavit”. Nevertheless, she agreed that she swore it in front of a Justice of the Peace as being truthful. SM conceded that she was now saying to the Court that she lied in the affidavit.
Counsel for the appellant then placed MFI-D6 before SM. MFI-D6 is the front page of the affidavit said to have been sworn on 20 January 2016. MFI-D6 later became exhibit D6 and is in the following terms and form.
The cross-examination continued as follows.
Q.Now, looking at that document, that's your handwriting, isn't it.
A.That is not my handwriting.
Q.Well, the document states 'I, [SM], make oath and say' and then in handwriting it says 'I have written this letter in support of [the appellant]'; whose handwriting is that.
A.That's [the appellant’s] handwriting.
Q.[The appellant’s] handwriting.
A.That's correct.
Q.When do you say that [the appellant] wrote that form 36.
A.He wrote the part after 'make oath and say', he wrote that part.
Q.And where did that occur.
A.That occurred at his house.
Q.When.
A.I don't remember.
Q.Well, it's signed on 20 January 2016, do you see that.
A.Yes.
Q.And is that your initial down the bottom or is that -
A.Yes.
Q.And that is 'SM'.
A.That's correct.
DEFENCE COUNSEL: At this stage I would ask that that be tendered as D6 and I provide copies.
HER HONOUR: For what purpose? Is it for the truth of the contents? Because she hasn't adopted them. Is it to show her handwriting?
DEFENCE COUNSEL: I can try and establish perhaps.
HER HONOUR: I'm not going to allow you to tender it at the moment.
DEFENCE COUNSEL: Yes.
HER HONOUR: We'll hear argument on it further because she has not adopted the truthfulness of those contents. She has not adopted that as her document.
DEFENCE COUNSEL: I understand, yes.
XXN
Q.I just want to be clear on this … this document where it says 'I, [SM], of … it goes on to say 'make oath and say'; up to 'make oath and say', is that your handwriting.
A.I don't remember if I wrote that.
Q.Right; and then it goes on to - there's a handwritten paragraph.
A.Yes.
Q.Where it says 'I have written this letter in support of [the appellant] due to allegations against [the appellant] that are false and misleading and I believe he is innocent and didn't commit these false allegations that are being made against him'. Then is that your signature or initials under that statement.
A.Yes, That is my initials under that statement.
Q.And do you say that [the appellant] wrote that paragraph.
A.Yes he did.
HER HONOUR
Q.But did you sign it and swear it as -
A.Yeah.
Q.- accurate.
A.Yes.
Q.At the time.
A.Yes.
HER HONOUR: All right, I think you can tender it now.
EXHIBIT #D6 MFI D6 TENDERED BY MR WEIR. ADMITTED.[11]
[11] In my view, exhibit D6 was not admissible for the truth of its contents. It contained an out of court opinion by SM as to her belief or otherwise in the truth of the complainant’s allegations. SM’s opinion, whenever proffered was of no probative value. I leave open the question of whether or not exhibit D6 was admissible in support of the appellant’s attack on SM’s credibility. However, for reasons to be explained, it was not admissible as a foundation for handwriting comparison evidence to be elicited unless section 30 of the Evidence Act 1929 (SA) had first been complied with.
COPIES OF EXHIBIT D6 HANDED TO JURY
.. . .
HER HONOUR
Q.Just looking at this, what part did you write if any of this, did you write ‘[SM]’ up the top.
A.I'm pretty sure that I did write that bit.
Q.And did you write the address.
A.I think so.
Q.And under the words 'make oath and say', did you write that paragraph.
A.No.
Q.Do you say that's not your handwriting.
A.No, it's not.
Q.You then adopt - you then signed the document in the presence of a JP, did you.
A.That's correct.
Q.On the date recorded there, 20 January.
A.That's correct.
Q.It's your signature at the bottom.
A.Yes, it is.
XXN
.. . .
Q.Looking at the letter and Exhibit D6, you still maintain, do you not, that [the complainant] wrote the four-page letter.
A.Absolutely.
Q.Does [the complainant] have similar handwriting to you.
A.Yes, she does.
Q.And if you look at Exhibit P5 and Exhibit D6, in particular, the way an 'N' is written, did she -
HER HONOUR: … I'm not going to allow you to ask this line of questions. She is not a handwriting expert. If you want to elicit those questions, it's a matter for you but she's not in a position to answer them.
DEFENCE COUNSEL: If your Honour pleases.
XXN
Q.When do you say that [the appellant] wrote that paragraph on Exhibit D6.
A.He wrote that the morning we went and had it sworn in front of the justice of the peace.
Q.Did he write it in front of the justice of the peace.
A.No, he wrote it at his house.
Again, the Judge intervened, without an objection from prosecuting counsel and without hearing from defence counsel, to disallow “this line of questions”. As I interpret the ruling, again considered in its context, her Honour has rejected the two questions (and answers) “Does [the complainant] have similar handwriting to you” and “And if you look at Exhibit P5 and Exhibit D6, in particular, the way an ‘N’ is written, did she -”. I do not understand her Honour’s objection to relate to the immediately preceding question “Looking at the letter and Exhibit D6, you still maintain, do you not, that [the complainant] wrote the four-page letter”. This was simply a restating of the evidence earlier given by SM as to who wrote P5 which had not, to this point, been objected to either by counsel or by the Judge. SM had earlier expressed familiarity with the complainant’s handwriting and had given direct evidence of having observed the complainant go into another room with the expectation that she was to write a letter and of the complainant returning with a handwritten letter which she then gave to SM.
Handwriting evidence
There are three categories or types of admissible evidence potentially available to prove authorship of disputed handwriting.
The first is testimonial evidence such as that of the putative author giving direct evidence of having written the document or the evidence of an observer or witness having seen the author in the act of writing the document. Indirect or circumstantial evidence might also fall within this category of evidence. In the present case, the complainant gave direct evidence that she wrote exhibit P5 and SM gave circumstantial evidence in support of her conclusion that the complainant had written exhibit P5 after entering a room and then returning with P5 in her possession.
The second category of evidence is comparison evidence, that is, where aspects of a disputed writing are compared with cognate aspects of a writing whose authorship is known.[12] The third category of evidence is non-expert opinion evidence[13] or what might also be characterised as recognition evidence.
[12] See section 30 of the Evidence Act 1929 (SA), R v Mazzone (1985) 43 SASR 330 at 339 and Adami v The Queen [1959] HCA 70; (1959) 108 CLR 605 at 617-618.
[13] R v Mazzone (1985) 43 SASR 330 at 337-338 (Bollen J with whose reasons King CJ and, on this point, Johnston J agreed).
Comparison evidence is the process of making comparisons between components of a disputed sample with sufficiently analogous components of a known sample. In R v Baftiroski,[14] the following observations were made concerning this type of evidence.
[14] [2018] SASCFC 83 at [19] (Nicholson J with whose reasons Kourakis CJ and Parker J agreed).
Expert evidence concerning handwriting is admissible in a criminal trial and is to be dealt with in accordance with the usual rules concerning expert witnesses. In addition, lay persons, including jury members, are permitted to make their own handwriting comparisons. Section 30 of the Evidence Act 1929 (SA) is in these terms.
30—As to comparison of disputed writing
Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court as evidence of the genuineness or otherwise of the writing in dispute.
Indeed, a trier of fact is entitled to reach conclusions following a comparison of known with disputed handwritings in the absence of any evidence on the topic, expert or non-expert. This is consistent with the standard direction given to juries in this State concerning the way in which they are to approach expert evidence and, ultimately, the undisputed proposition that the jury in a criminal trial is solely responsible for determining the facts.
(citations omitted)
In R v Mazzone,[15] Bollen J characterised section 30 not as a code for comparison evidence but as an “enabling section”. His Honour further observed as follows.[16]
I think, therefore, that under s 30 it is the duty of the trial judge to decide whether documents said to be in the accused’s hand and sought to be used in comparison with disputed writing are proved beyond reasonable doubt to be in the accused’s hand. No doubt he should announce his finding.
The learned trial Judge did not announce a finding on this issue. Nor is it apparent that he went through the exercise of deciding if he was satisfied that the examples of the appellant’s hand were “genuine”.
His Honour went on to find that the failure by the trial Judge to decide whether he was satisfied as required by section 30 did not vitiate the conviction because the evidence as to the author of the example writings was overwhelmingly to the effect that the author was the accused. As such, if the trial Judge had gone through the exercise required by section 30, he would inevitably have decided that he was satisfied beyond reasonable doubt that the accused wrote the samples.
[15] (1985) 43 SASR 330 at 339.
[16] R v Mazzone (1985) 43 SASR 330 at 342-343.
In R v Burns & Collins,[17] the Court of Criminal Appeal[18] considered the potential dangers associated with comparison evidence adduced from lay witnesses and observed as follows.
In Adami … the High Court held that s 30 of the Evidence Act 1929 (SA) permits persons who are not experts to express opinions as to comparisons of handwriting. A person who is not an expert may express an opinion as to whose hand wrote a document by comparing the document with documents proved to be in the hand of an identified person … . Plainly, the weight of the evidence might depend on whether the comparison is made by an expert or by a lay witness. In any event, whether evidence is given by an expert or other witness and even in the absence of evidence, the ultimate question whether the disputed handwriting is that of the accused is a question of fact for the jury to decide. In Adami there was no expert evidence of handwriting. The jury were asked to compare the handwriting in question with the handwriting on other documents which were admitted to be documents on which the accused had written. The High Court held that it was proper for the jury to compare the handwriting for themselves and draw inferences as to the identity of the maker of the documents. Thus, the comparison of the handwriting in this trial was a proper question to leave to the jury in the absence of expert or other evidence.
When persons other than experts give evidence of comparisons of handwriting or when the jury is being asked to compare handwriting, it is appropriate that the trial judge should warn the jury of the care which should be taken before drawing conclusions … . The nature and extent of the warning will depend upon the facts and circumstances of each case … . In …, Malcolm CJ suggested that it is not mandatory to give the jury a warning. In the circumstances of this case, it is not necessary to consider that issue because, as will be seen, the judge did give an appropriate warning.
(citations omitted)
[17] [2001] SASC 263; (2001) 123 A Crim R 226 at 240-241.
[18] Prior, Debelle and Williams JJ.
In R v Browne-Kerr,[19] the Victorian Court of Criminal Appeal considered the process to be undertaken before a document, referred to there as the “control” document, could be received in evidence to enable it to be compared with a disputed writing. In doing so, the Court considered and applied the terms of section 148 of the Evidence Act 1958 (Vic). Section 148, then in force, was in these terms.
Comparison of a disputed writing with any writing proved to the satisfaction of the court or person having by law or by consent of parties authority to hear receive and examine evidence to be genuine shall be permitted to be made by witnesses; and such writings and the evidence of witnesses respecting the same may be submitted to such court or person and the jury or assessors (if any) as evidence of the genuineness or otherwise of the writing in dispute.
The provision is in materially the same terms as section 30 of the Evidence Act 1929 (SA) although the following differences are noted.
(i)Under section 30 the control writing must be “proved to the satisfaction of the judge to be genuine”, whereas under section 148 it must be “proved to the satisfaction of the court or person having by law or by consent of parties authority to hear receive and examine evidence to be genuine”.
(ii)Under section 30, such writings and the evidence of witnesses respecting the same “may be submitted to the court as evidence …” whereas under section 148, these matters “may be submitted to such court or person and the jury or assessors (if any) as evidence …”.
[19] [1990] VR 78 (Crockett, Gray and McDonald JJ).
It is clear from the language of section 30 that the control writing must be proved genuine to the satisfaction of the Judge before or as part of the process of allowing any comparison exercise to be undertaken by a witness and submitted to the court. In this context, the “court” is a reference to the trier of fact which in the case of a jury trial is the jury. This clear distinction between the respective roles of the judge and of the court under section 30 is not so readily apparent on the face of the language of section 148. Nevertheless, the Court of Appeal in Browne-Kerr adopted as applicable the High Court’s observations concerning section 30 in Adami v The Queen[20] and further observed that the difference in terminology between section 30 and section 148 was not material.[21]
[20] (1959) 108 CLR 605 at 616-617.
[21] R v Browne-Kerr [1990] VR 78 at 83.
In Browne-Kerr, the appellant had been convicted before a jury of 26 counts of forgery. Two control documents had been relied on by the prosecution’s expert handwriting evidence witness at the trial. However, shortly before the empanelment of the jury, defence counsel had informed the Judge that the authorship (by the accused) of one of the control documents was challenged. Counsel requested a voir dire to determine the admissibility of the document and indicated that the accused would give evidence on the voir dire in answer to any case for admissibility put by the prosecution. The Judge refused the application. The trial Judge ruled in the following terms.
I simply repeat that where matters go to the guilt of the accused and are vital in proving the guilt of the accused the question arises whether the jury are going to accept that evidence or not. It is not a matter in general that the court will hear evidence in advance of the actual trial upon.
During the course of the argument, the Judge had observed:
I have no doubt whatsoever there is not the slightest doubt that this is an ordinary item of proof and that I would never permit a voir dire to be held unless there were a strong reason to do so. It is for the jury to say whether it is satisfied that the business questionnaire is in the writing of the accused so as to validate the expert’s opinion.
The prosecution’s expert had given evidence, including as to the circumstances in which the challenged control document (a business questionnaire) had come into existence. It is sufficient for present purposes to note that the witness did not observe the document under challenge to have been completed in the handwriting of the accused and the circumstances in which it was completed were such as to leave open the accused’s account (given in an unsworn statement) that the document had not been completed by him and may have been completed by his brother. The Court of Appeal summarised the position thus.
Accordingly, what occurred at the trial with respect to Exhibit G was that, against the objection of counsel for the applicant, that document, which was not otherwise relevant to any issue in the trial, was admitted in evidence as one of the standard or control documents against which the expert witness had compared the handwriting on the documents alleged to have been forged by the applicant.
The Court went on to consider the standard of proof to be observed by a judge when determining the voir dire question of admissibility. After a detailed review of authority, it held, contrary to the position espoused in R v Ewing[22] and by this Court in R v Mazzone, that even in a criminal trial, the Judge only needed to be satisfied of the genuineness of the control document on the balance of probabilities.[23] The issue does not arise in the present case and the Court did not receive submissions on the point. There is much to be said for the reasoning and conclusion of the Court of Criminal Appeal in Browne-Kerr on this point. And Browne-Kerr has been approved of in subsequent decisions. Further, Bollen J’s dictum in R v Mazzone[24] to the contrary may not be seen as part of the ratio in that decision. If so, whilst persuasive[25] it would not strictly be binding on courts in this State.
[22] [1983] QB 1039.
[23] R v Browne-Kerr [1990] VR 78 at 84-85.
[24] (1985) 43 SASR 330 at 342.
[25] Particularly given that King CJ and, on this point, Johnston J agreed.
The Court in Browne-Kerr concluded that before the control document under challenge could be admitted into evidence and relied on by the expert for his comparison exercise, the Judge had to be satisfied that it was in the writing of the appellant. A voir dire should have been conducted for this purpose. As such, the trial Judge failed to comply with section 148 and the control document was not otherwise admissible. This vitiated the convictions and the appeal was allowed.
In the present case, the comparison evidence to the extent it was given or sought to be adduced, was not directed at whether the accused had written a document but whether the complainant had written a document, namely exhibit P5. Nevertheless, the requirements of section 30 remain applicable, mutatis mutandis.
Opinion evidence is that given by any person, including a non-expert, who has sufficient familiarity with a person’s handwriting to enable them to opine that the disputed writing is in that person’s hand. In reality, a comparison of the disputed writing with the memory of an example of writing by the person of interest and retained by the witness is undertaken. This involves a cognitive process which cannot be objectively observed or explained. In a sense, such opinion evidence is really a form of comparison evidence where the “known” sample is not a tangible piece of writing established objectively as being written by the person of interest but a memory or understanding of what the writing of the person of interest looks like to the extent or as retained by the cognitive processes of the witness.[26]
[26] The point was put more succinctly by Patteson J (KB) in Doe d. Mudd v Suckermore (1837) 5 Ad & E 703 at 729; (1837) 111 ER 1331 at 1342: “All evidence of handwriting, except where the witness sees the document written, is in its nature comparison. It is the belief which a witness entertains upon comparing the writing in question with an exemplar in his mind derived from some previous knowledge”.
The acceptance of non-expert opinion evidence of this nature is a practice of very long standing.[27] Nevertheless, as Bollen J observed in R v Mazzone:[28]
Of course the witness must show a good knowledge of the relevant handwriting. Of course the weight to be given to any witness’s evidence is quite another matter. But I can see no fault in the practice.
In R v Winfield & Ors,[29] Lander J admitted such opinion evidence in a criminal trial and observed as follows.
The evidence given by Mr Peter Winfield was objected to by counsel for the accused upon the basis that he did not enjoy sufficient expertise to identify the handwriting of his brother. I however allowed the evidence to be admitted upon the basis that the evidence showed that the witness had a degree of familiarity with the handwriting of the accused which would allow him to offer an opinion, notwithstanding he was not an expert. There is no doubt that there is a long standing practice allowing for the admission of such evidence and that practice was referred to and approved by the Full Court of the Supreme Court of this State in R v Mazzone. It may be as Bollen J pointed out in R v Mazzone that the weight to be attached to the evidence of such a witness will vary from witness to witness depending upon the degree of familiarity of the witness with the hand of the handwriting, which is sought to be identified, but that is another matter.
(citation omitted)
[27] R v Mazzone (1985) 43 SASR 330 at 337.
[28] (1985) 43 SASR 330 at 337.
[29] [1997] SASC S6027.
Consideration of the appellant’s ground of appeal
The complainant’s admitted evidence can be reduced to the following.
(i)The complainant wrote exhibit P5 and gave it to SM.
(ii)The complainant mostly writes in print (not cursive).
(iii)The complainant was certain that SM did not write exhibit P5.
(iv)The complainant expressed familiarity with SM’s handwriting.
(v)The complainant is pretty sure SM has a preference to write in print.
(vi)The handwriting on exhibit D6 is not the complainant’s.
(vii)The handwriting on exhibit D6 is her mother’s.
(viii)The complainant does not have similar handwriting to her mother’s.
SM’s admitted evidence can be reduced to the following.
(i)Exhibit P5 was written by the complainant.
(ii)Exhibit P5 was not written by SM.
(iii)SM swore a false affidavit (the affidavit itself is not in evidence).
(iv)D6 (the cover sheet to the affidavit) was not written by SM (apart from, perhaps, her name and address at the top).
(v)The substance of D6 was written by the appellant.
(vi)SM swore D6 as being accurate.
(vii)The complainant has handwriting similar to that of SM.
I turn now to consider the Judge’s refusal to allow counsel to ask of the complainant: “Do you have similar handwriting to your mother” and “In what ways or in what way is it different”. Considered in isolation, neither question was objectionable. The complainant was in a position to express such non-expert opinion evidence. Ex hypothesi, she was familiar with her own handwriting and had expressed familiarity with SM’s handwriting. However, the relevance of any answer to these questions, standing alone, is dubious at best.
In any event, the complainant answered the first question – “not really” – before the objection was taken. This evidence, with whatever weight the jury might give it, was before the jury and at no time were they directed to ignore this evidence. Whilst the second question was not answered, it was of such a general nature and so removed from a material context, that it was intrinsically unlikely to have provoked a response of any probative value for the defence.
Furthermore, the Judge’s objection must be considered in its context. It would appear that counsel wished to pursue a comparison exercise with the witness by reference to exhibits P5 and D6. Any answers to the two challenged questions would go nowhere unless tied back to D6. As best I understand the appellant’s case, it was that D6 or a part of D6 such as, for example, SM’s name and address at the top, had in truth, been written by SM and a comparison exercise with exhibit P5 might throw up sufficient similarities to suggest a reasonable doubt about the authorship of exhibit P5. However, unless exhibit D6, or a part of exhibit D6, passed through the gateway of section 30 of the Evidence Act 1929 such a line of questioning was not open to the appellant. As the authorities discussed earlier establish, section 30, when complied with, renders a document not otherwise admissible to be admissible for the comparison exercise identified in section 30.
The Judge was in error in the reason her Honour gave for excluding this line of questioning. Comparison evidence “in respect of the two pieces of handwriting” is not restricted to qualified experts, however, section 30 must be complied with.[30] As such, her Honour did not err in ruling the line of questioning being pursued to be unavailable to the appellant. At no time had the Judge been asked to consider whether, nor had her Honour ruled that, she was satisfied that exhibit D6 (or part thereof) was a genuine writing of SM. Unlike in Mazzone such a conclusion was by no means ineluctable on the evidence before the court.
[30] R v Adami (1959) 108 CLR 605 , R v Mazzone (1985) 43 SASR 330.
In order to proceed with a comparison exercise, counsel for the appellant should have directed the Judge to section 30 and requested a voir dire. SM’s evidence concerning exhibit D6, as it stood, was that the name and address may have been written by SM but that the substantive content had been written by the appellant. The complainant’s evidence was that she recognised the substance of D6 as being in SM’s handwriting. During the voir dire the appellant would have been able to give evidence on oath. Furthermore, the Judge would have been confronted with a difficult issue concerning the credibility of SM. Nevertheless, the Judge would have been in a position to make a finding as to whether or not she was satisfied that any part of exhibit D6 had been authored by SM. Only upon receipt of a favourable ruling would the appellant have been entitled to proceed with a cross-examination seeking to adduce comparison evidence from the complainant.
To the extent that the Judge erred in disallowing the two specific questions earlier identified, such was completely inconsequential. The Judge did not otherwise err either in law or at all in preventing counsel from further cross-examining with respect to exhibit D6 notwithstanding the incorrect reason given.
I would adopt the same reasoning and arrive at the same conclusion with respect to the Judge’s refusal to allow counsel to cross-examine SM further in order to elicit comparison evidence with respect to exhibits P5 and D6.
It follows that I would answer “no” to questions (i) and (ii) in paragraph [18] above. As such, question (iii) does not arise. I would dismiss the only ground of appeal raised by the appellant.
However, it is apparent that the appellant’s inability to adduce comparison evidence at trial arose from a failure either by counsel or the Judge to advert to the availability of and to attempt to deploy the requirements of section 30. It may be argued that this has given rise to a miscarriage of justice in the sense that the appellant did not receive a trial according to law and, as a result, has been deprived of a material chance of acquittal.
When stopped from cross-examining the complainant and SM with respect to exhibits P5 and D6, defence counsel did not pursue the matter. It may be that counsel himself took the view that the line of questioning was likely to be unprofitable and made a forensic decision not to continue or it may be that counsel took the view that the Judge’s ruling brought the issue to a close. Decisions made or omitted to be made by an accused’s counsel can, in limited circumstances, constitute a material irregularity in the trial and provide the foundation for a finding that there has not been a fair trial and that, as a consequence, the accused has suffered a miscarriage of justice.[31]
[31] See, for example, Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [9] (Gleeson CJ) and [24] (Gummow and Hayne JJ) and TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [79], [81], [82] and [85] (McHugh J) and see generally, R v B, DWL; R v B, CG [2019] SASCFC 101 at [74]-[77] (Nicholson J with whose reasons Kelly and Hinton JJ agreed).
It is unnecessary to consider whether those limited circumstances apply in this case. For the following reasons, the failure of or inability of counsel to pursue the cross-examination in issue, even if brought about by a material irregularity in the trial, did not deprive the appellant of a chance of an acquittal that was reasonably open to him. I am in no doubt that the jury’s apparent acceptance that the complainant authored exhibit P5 would never have been at risk.
(i)Both the complainant and SM were adamant that the complainant had written exhibit P5. After considering the totality of their evidence, the prospect of either of them recanting as to this issue was negligible.
(ii)Exhibit P5 came into existence virtually contemporaneously with the end of the alleged offending. It is not a case where it could be said to have come about some time after the initial complaint to police so as to bolster an earlier story. The circumstances in which it came about, as explained by the complainant and SM, gain support from the presence of the text messages on the complainant’s phone. It is inherently unlikely that, if the complainant and SM had conspired to make a false complaint to the police on or about 4 September 2015, they would have sought to bolster the complainant’s credibility with such an elaborate charade of SM observing text messages, the complainant being so anxious as being unable to verbally explain and the complainant therefore writing a four page letter. Further, any conspiracy between the two must have been in place at the time the letter was written. Whilst it is conceivable that SM may have dictated the letter to the complainant, there was no need and it would make no sense at all for SM to have actually written the letter.
(iii)The jury had before them both exhibits P5 and D6. It was open to counsel to draw such comparisons to the attention of the jury as were available. Counsel did not do so. Furthermore, it was open to the jury to make their own comparisons. Ultimately, the question before the jury was whether they were satisfied that exhibit P5 had been written by the complainant. Both the complainant and SM were challenged on this in cross-examination; it remained a live issue before the jury and was specifically adverted to in the Judge’s summing up.
(iv)Even a cursory examination would suggest that there were very few, I would suggest no, comparisons between exhibits P5 and D6 that might lend any support to a conclusion that the author of exhibit D6 was also the author of exhibit P5. Exhibit P5 is plainly in a different hand from that of the substantive writing in exhibit D6. The latter is a more practised, neater and more mature hand. A comparison of various letters, for example, “s” and “f” reveals quite stark differences. The name and address at the top of exhibit D6 have been redacted in the document reproduced earlier in these reasons in order to preserve confidentiality for the plaintiff. On my review of exhibit D6, it is highly likely that the name was written by the same person who wrote the substantive paragraph but the address is written in a different hand. The address is an extremely small sample. Nevertheless, the writing used for the address is also markedly different from that in exhibit P5.
(v)It might be said that the person who wrote either the address or the substantive paragraph in exhibit D6 (on the appellant’s case, SM) may have attempted to disguise their writing when authoring exhibit P5. Such a notion is fanciful. Why would SM undertake such an elaborate exercise on 4 September 2015 when the complainant was available to write exhibit P5 and prepared to join in the complaint to the police? In any event, if there had been an attempt to disguise the writing on exhibit P5, no comparison with exhibit D6 could have been of any assistance to demonstrate this.
(vi)Exhibit P5 contains hallmarks of having been composed by a teenager speaking of her experiences and evident anxiety about the effects her revelations will have on her mother. All four pages of exhibit P5 provide a compelling account of the anxieties and fears experienced by the author concerning the events described.
There has been no miscarriage of justice independently of the complaint articulated in the appeal ground. Insofar as necessary, I would extend the time for the bringing of the appeal and grant permission to appeal. I would dismiss the appeal.
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