R v BURGESS

Case [2019] SASCFC 109

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

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R v BURGESS [2019] SASCFC 109
Case
[2019] SASCFC 109
Decision Date

CaseChat Overview and Summary

The appeal concerned a criminal conviction where the appellant, R v Burgess, sought to challenge the trial judge's rulings on cross-examination. The central dispute revolved around the authenticity of a letter, exhibit P5, which was crucial to the prosecution's case. The appellant argued that the trial judge erred by restricting defence counsel's ability to cross-examine the complainant and her mother, SM, regarding the handwriting in exhibits P5 and D6. The matter was heard by Kourakis CJ, Stanley and Nicholson JJ.

The legal issues before the Court of Appeal were whether the trial judge had erred in limiting the cross-examination of the complainant and SM concerning handwriting samples. If an error occurred, the court had to determine if it constituted a wrong decision on a question of law, thereby engaging specific provisions of the Criminal Procedure Act 1921 (SA). Furthermore, the court was required to consider whether any such error led to a miscarriage of justice, and if so, whether the proviso, which allows an appeal to be dismissed if no substantial miscarriage of justice has actually occurred, should apply.

The court considered the long-standing practice of admitting non-expert opinion evidence regarding handwriting, citing cases such as R v Mazzone and R v Winfield & Ors. This practice allows witnesses with sufficient familiarity with a particular handwriting to offer an opinion, with the weight of such evidence being a matter for the jury. The complainant's evidence established that she wrote exhibit P5, that she primarily wrote in print, and that SM did not write it. She also expressed familiarity with SM's handwriting and stated that exhibit D6 was not her handwriting but her mother's. SM's evidence corroborated that the complainant wrote P5 and that SM did not. The court noted that while the questions about the similarity of the complainant's handwriting to her mother's were not objectionable in isolation, their relevance, standing alone, was dubious.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.XNQ.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 HONOURQ.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] TOHER MOTHER TENDERED BY [PROSECUTOR]. ADMITTED.COPIES OF EXHIBIT P5 HANDED TO JURYXNQ.… 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.

Decision

Reasons for decision

NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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.