R v De Sousa Leal

Case [2019] SASCFC 57

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DE SOUSA LEAL

[2019] SASCFC 57

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Hinton)

24 May 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

Appeal against conviction - appellant convicted by jury of one count of indecent assault - four categories of evidence led as uncharged acts - whether the trial Judge erred by directing the jury inappropriately by commenting on the evidence - whether fresh evidence should be received in relation to one of the uncharged acts.

Appeal against sentence - appellant sentenced to s 33BB home detention order - whether sentence manifestly excessive - whether sentence should have been wholly suspended.

Held per Kelly J (Peek J agreeing) dismissing the appeal against conviction:

1.  The Judge correctly summarised the effect of the transcript to the jury.  The Judge made no error.  No miscarriage of justice has occurred.

2.  The appellant has not satisfied the requirements for the admission of fresh evidence.  However, I am prepared to assess the cogency of the evidence on the basis that the appellant has satisfied the requirements for its admission.

3.  There is no significant possibility the jury would have acquitted the appellant had this evidence been available at trial.  I refuse permission to the appellant to adduce fresh evidence.

Held per Hinton J dismissing the appeal against conviction:

1.  The impugned comment made by the trial Judge was unnecessary to the discharge of the Judge's function.  However, the comment has not resulted in a miscarriage of justice.

2.  The fresh evidence, taken with the evidence at trial, does not give rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before the jury.

Held per Kelly J (Peek and Hinton JJ agreeing) dismissing the appeal against sentence on ground 1 and refusing permission to appeal on ground 2:

1.  Although this was a singular offence of indecent assault, the Judge was not required to ignore the background and context in which that one charged act had occurred.  A starting point of three years was not outside the sentencing range available to the Judge.

2.  The Judge properly considered and determined that there was no good reason to wholly suspend the sentence as the relevant factors put forward in the appellant's favour did not outweigh the seriousness of the offending.

Criminal Law (Sentencing) Act 1988 (SA) s 33BB, referred to.
Rodi v Western Australia (2018) 92 ALJR 960; (2018) 360 ALR…

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R v De Sousa Leal [2019] SASCFC 57
Case
[2019] SASCFC 57
Decision Date

CaseChat Overview and Summary

The appellant appeals against his conviction and sentence for indecent assault. The appeal is against both the conviction and the sentence. The primary complaint against the conviction is that the trial Judge made an inappropriate comment on the evidence. The appellant also contends that fresh evidence should be received in relation to one of the uncharged acts. The appeal against the sentence contends that it is manifestly excessive or inadequate. The Court dismissed the appeal against conviction and the appeal against sentence. The Court held that the trial Judge did not err in making the comment on the evidence and that the fresh evidence did not establish a miscarriage of justice. The Court also held that the sentence was not manifestly excessive or inadequate.

The Court of Appeal held that the trial Judge did not err in making the comment on the evidence. The trial Judge’s comments were made in the context of reading out portions of the evidence to the jury for the second time. The comments were made to stimulate discussion and were not intended to direct the jury on how to reach a particular conclusion. The trial Judge made it clear that the decision about the facts and what they drew from them was entirely the jury’s. The Court found no miscarriage of justice in the trial Judge’s comments.

The Court also found that the fresh evidence did not establish a miscarriage of justice. The fresh evidence related to the timing of one of the uncharged acts. The Court found that the fresh evidence, even if believed, would not have led the jury to a different verdict. The Court found that the evidence could have been obtained and produced at trial had the appellant exercised reasonable diligence before and during the trial. The Court found that the fresh evidence did not establish a miscarriage of justice.

The Court found that the sentence was not manifestly excessive or inadequate. The Court found that the sentence of home detention was appropriate given the appellant’s age and the nature of the offence. The Court found that the sentence was not manifestly excessive or inadequate.

The Court dismissed the appeal against conviction and the appeal against sentence. The conviction and sentence are affirmed.

Orders

Orders of the court

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Background

Background to the litigation

Before dealing with each ground of appeal, it is necessary to set out in a little more detail the relevant factual background.Background The prosecution case in respect of the sole charged act of indecent assault was that the appellant came up behind the complainant, pressed his body against her, put his hand on one of her breasts over her clothing and placed his other hand on her other breast under her clothing. This occurred at some time between 28 April 1991 and 28 April 1992 when the complainant was 17 years old. Four categories of evidence of uncharged discreditable conduct were led by the prosecution. The first three categories of conduct were alleged to have occurred in Portugal prior to the two families migrating to Australia. The complainant said that from when she was aged about 10, during games of hide and seek, the appellant would pretend to help her hide and then take advantage of the opportunity by kissing her and touching her body, including in between her legs. The complainant also said that when she was aged around 10 and 11 the appellant would allow the complainant and her friends to watch cartoons in his apartment in Paredes. He would cover himself and the complainant with a blanket and would then touch her on the bottom, chest and vagina underneath the blanket. The complainant also gave evidence that when she was about 11 years old her father went to Russia for about six months to work while she remained at home in Portugal with her mother and brother. The complainant said that while her father was in Russia, her mother was working long hours including night shifts and so her mother gave a key to the appellant’s wife to check on the children at night. The complainant said that she never saw the appellant’s wife come to check on her, but that the appellant would come instead. One night, during this period of time, the complainant awoke in her bedroom to find the appellant covering her mouth with one hand. His other hand was underneath her underwear and his fingers were inside her vagina. The appellant told the complainant not to say anything about what had happened. That incident was the subject of cross-examination. It was put to the complainant that at no stage was the appellant in Portugal during the time when her father was in Russia. The complainant denied that. She conceded that the appellant did go to Russia as well but said that “it was after my dad was already there”. The appellant said in evidence that in late 1987 or early 1988, he went to work in Russia for six months and that a week after he arrived, the complainant’s father, Mr Da Silva, also arrived in Russia to work. He said that Mr Da Silva had an accident while in Russia and returned to Portugal about a month before the appellant returned. The appellant denied that he had ever been given a key by the complainant’s mother to check up on the children. The appellant’s wife, Mrs Leal, also denied that she had ever been given a key by the complainant’s mother. She said that the appellant went to Russia in 1987 for six months and Mr Da Silva, the complainant’s father, went one week later. She said also that Mr Da Silva returned to Portugal one week before the appellant as he had hurt himself.

Evidence

Evidence Before The Court

The Judge made no error. I would dismiss this ground of appeal. I turn now to consider the second ground of appeal, the appellant’s application to admit fresh evidence.Consideration of Ground 2 – application to admit fresh evidence As the High Court observed recently in Rodi v Western Australia, it is settled that a miscarriage of justice will be established where fresh evidence, when viewed in combination with the evidence given at trial, shows that there is a significant possibility that the jury acting reasonably would have acquitted the accused had the fresh evidence been before the jury. The question of whether evidence is fresh is answered by determining whether it was evidence which was not available to or obtainable by the appellant with the exercise of reasonable diligence. [1][1] Rodi v Western Australia (2018) 92 ALJR 960 [28]; (2018) 360 ALR 54; [2018] HCA 44, citing Gallagher v The Queen (1986) 160 CLR 392 at 399, 402, 411, 414, 421 and Mickelberg v The Queen (1989) 167 CLR 259 at 273, 288-289, 301. The respondent contends that the proposed evidence of Mr Da Rocha does not satisfy the test for fresh evidence. The respondent submits that the evidence of Mr Da Rocha, even if believed, would not have led the jury to a different verdict. Further, the respondent contends that the evidence could have been obtained and produced at trial had the appellant exercised reasonable diligence before and during the trial. Before turning to the merits of the argument, it is convenient to consider what was said by this Court in R v Keogh (No. 2) with respect to the application of the principles relating to fresh evidence in the specific context of the criminal law:[2]99Ordinarily, an appellant will not have acted with reasonable diligence if they could reasonably be expected to have become aware of the evidence and adduced it at trial. However, at least insofar as the criminal law is concerned, there has always been scope for latitude when considering whether or not the evidence relied on could, with reasonable diligence, have been adduced at trial, given that the overriding consideration before a Court of Criminal Appeal is whether there has been a miscarriage of justice. At common law, the requirement that the evidence be fresh has to this extent been flexible. In Ratten, Barwick CJ continued:... It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his decision as to the calling and treatment of the evidence at the trial. Thus, there will be no miscarriage because evidence which was available to him actually or constructively was not called by the accused, even though it may appear that if that evidence had been called and been believed a different verdict of the trial would most likely have resulted. The accused, nevertheless, will have had a fair trial. But if the new evidence does qualify as fresh evidence it can be said that the trial was not fair. Of course, if by reason of new evidence accepted by it though it may not be fresh evidence, the court is either satisfied of innocence or entertains such a doubt that the verdict of guilty cannot stand, the fact that the trial itself has been fair will not prevent the court upon that evidence quashing the conviction.The Chief Justice returned to this proposition later in his judgment:To sum up, if the new material whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court’s view is properly capable of acceptance and likely to be accepted by a jury and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence.100When considering the question of fresh evidence at common law, it would appear that there are two areas of “flexibility” or where “latitude” might be extended to an appellant. First, the Court will have regard to the circumstances of the accused when deciding whether the evidence could have been adduced with reasonable diligence. Secondly, the Court may receive evidence that is not strictly fresh if the evidence establishes that there has been a miscarriage of justice, namely that the verdict of guilty should not stand.[citations omitted][2] (2014) 121 SASR 307.

Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

That is the evidence on which the appellant relies in respect of ground 2 being the application to admit fresh evidence. Consideration of Ground 1 – inappropriate comment by the trial Judge The first ground of appeal is a complaint that the trial Judge made an inappropriate comment on the evidence, thereby causing a miscarriage of justice. This complaint arises out of a question which the jury asked regarding two pieces of evidence. The question concerned aspects of the charged count of indecent assault. The complainant had given evidence that the charged indecent assault occurred at a time when her father was in Portugal. The facts relevant to the timing of that event had been agreed between the parties as follows: ·The complainant arrived in Australia on 9 December 1988. The appellant arrived in Australia on 27 September 1989.·Joaquim Da Silva, the complainant’s father, left Australia on 18 July 1991 and returned to Australia on 24 August 1991. There are no records of the complainant’s father leaving Australia from 24 August 1991 until 14 June 1995. ·The appellant departed Australia on 7 February 1991 and returned to Australia on 14 March 1991.·The complainant’s father entered Australia on 28 January 2014 and left on 22 March 2014. In summing up to the jury, at the request of counsel, the Judge read out portions of the transcript pertaining to the evidence of Sandra Vilches and to the complainant’s evidence about the timing of the charged incident. The jury then retired, returning some hours later to ask the following questions concerning the charged incident:Can we please see the transcript from Sandra Vilches referring to her statement and the reference to “uncle” Can we see the transcript referring to 91-92 incident timings from [the complainant], specifically time of the day the incident happened (time light/dark) etc After that note was received, there was a discussion between the Judge and counsel whether or not to provide the jury with a copy of the transcript. Eventually, all parties agreed that the transcript should be read out to the jury a second time. Accordingly, the trial Judge again read out the same (and some additional) portions of evidence relevant to both questions. At the conclusion of reading out the relevant evidence a second time, the trial Judge made the following comments:So that’s the evidence, members of the jury. It’s a matter for you. She seemed fairly clear it was warm and that there was light outside and presumably as she was preparing food it was some time prior to dinner. But beyond that, members of the jury, you might think she wasn’t sure about what time of year it was and indeed when she was specifically asked that in the question ‘So if it was a relatively warm day, there was still light outside around 6 or 7 pm, would you agree that would have occurred around October towards December 1991 or the early parts of 1992’ she said ‘I have, as I said, no idea, I’m sorry’.Very well, members of the jury that’s the evidence. You consider the evidence itself, rather than any comments from me, I just make these comments to stimulate some potential discussion. The decision about the facts and what you draw from them, as always, is entirely yours.