R v De Sousa Leal

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 54; [2018] HCA 44; R v Keogh (No 2) (2014) 121 SASR 307; McKell v The Queen (2019) 93 ALJR 309, applied.
Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259, considered.

R v DE SOUSA LEAL
[2019] SASCFC 57
Court of Criminal Appeal: Kelly, Peek and Hinton JJ
KELLY J.
Introduction

The appellant was convicted after a trial by jury of one count of indecent assault committed against the complainant when she was aged 17 years old. The complainant was the daughter of a family friend of the appellant. At trial, the prosecution led evidence of a number of uncharged acts committed against the complainant which started when she was about 10 years old when the two families were both living in Portugal. At that time, the appellant and his family lived in the same block of apartments as the complainant and her family.
Both families later migrated to Australia and the sole charged act, in respect of which the appellant was convicted, was alleged to have occurred at some time in 1991 or 1992 when the complainant was 17 years old. On 12 September 2017, the appellant was sentenced to a period of imprisonment for two years, nine months and 29 days. A non-parole period of 20 months was imposed. The sentence was ordered to be served on home detention.
The appellant now appeals both the conviction and sentence.
There are two grounds of appeal in respect of conviction. The first ground is a complaint that the trial Judge erred by directing the jury inappropriately by commenting on the evidence in such a way as to place undue emphasis on a particular piece of evidence, thereby causing a miscarriage of justice.
The second ground of appeal is an application to admit fresh evidence which was not available at the time of trial. The appellant alleges that the evidence is of substantial importance and there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had that evidence been before it at trial.
The appellant also argues two grounds of appeal in respect of sentence. The first of these is a complaint that the sentence is manifestly excessive. The second is a complaint that the learned sentencing Judge erred in refusing to wholly suspend the sentence, instead suspending the sentence under section 33BB of the then operative Criminal Law (Sentencing) Act 1988 and ordering that the sentence be served on home detention. Permission was conceded by the respondent on ground 1. Ground 2 on the sentence appeal was referred to this Court for permission.
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.
The appellant’s son, Vitor Leal, who was approximately 10 or 11 at the time when his father went to Russia, said that his father was there for some months and the complainant’s father went as well. He thought that both the appellant and Mr Da Silva left for Russia at about the same time and he did not know who returned first.
The fourth category of evidence of uncharged discreditable conduct led by the prosecution was said to have occurred after the families migrated to Australia. The complainant said that the families continued to socialise together and often the appellant would make sexual comments towards the complainant when others were not about.
The appellant was found guilty by the jury on 28 November 2016. His bail was revoked following counsel submissions on sentence on 17 July 2017 and he was taken into custody on that date to await sentencing.
Two days later, on 19 July 2017, the appellant’s wife and step-son, Antonio Leal, travelled to Portugal. While in Portugal they made contact with a man named Carlos Nogueira Da Rocha. An affidavit from Mr Da Rocha was sworn on 2 November 2017 and filed in this Court upon the hearing of the appeal.
On 10 November 2017, the appellant filed a Notice of Appeal Against Conviction raising for the first time the possibility of fresh evidence in relation to the conviction based on Mr Da Rocha’s affidavit.
In that affidavit, Mr Da Rocha asserted that the appellant had travelled to Russia before the complainant’s father, Mr Da Silva, and that he had returned to Portugal after the complainant’s father. In short, that evidence tended to support what the appellant and his wife had maintained at the trial: that it was the appellant and not the complainant’s father who travelled first to Russia, and that there was no stage when the appellant was in Portugal when the complainant’s father was in Russia.
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.
After the jury left, counsel then acting for the appellant, complained about the Judge’s comment made at the end of reading out the transcript and that he again drew the jury’s attention to the question and answer at page 227 of the transcript:
QSo if it was a relatively warm day where there was still light outside around 6 or 7 pm, would you agree that that would have occurred around October towards December of 1991 or the earlier parts of 1992?
AI have, as I said, no idea, I’m sorry.
QYou wouldn’t be wearing a singlet in the middle of winter of 1991, would you.
APerhaps not.
After considering the complaint made by counsel the trial Judge then called the jury back in and said the following:
I’ve just been discussing with counsel the transcript I read out and any comment I might have made, and I want to emphasise to you it’s your view about the transcript that matters. Please have regard to the transcripts and form your own views about it, disregard any comments that I might have made. It’s important that you form your own views about it. That’s going to be fairest to all concerned. I’m sure you’ll do that anyway but disregard any comment I might have made about it just in case that was emphasising the transcript in a particular way more than it should have been in that way, or vice versa.
I haven’t got the transcript of what I’ve said so I can’t read it back. I think the safest thing is disregard what I said and you go on your analysis of the transcript.
The appellant’s complaint on appeal was that the evidence was read out to the jury in response to a specific question which had been raised by the jury hours after they had retired. The appellant submitted that it was therefore likely that the particular issue about which the question was asked had assumed a level of importance in the deliberations. It therefore follows that any misstatement of the evidence or an undue emphasis on one piece of evidence over another at this point in their deliberations, increased the likelihood of prejudice to the defence case.
The appellant complains that the attempt by the Judge to remedy the situation by recalling the jury and giving a subsequent general direction not to take account of his comment, could not have alleviated the specific prejudice occasioned by that comment.
In my view, there is no substance in this complaint. The jury had just had the whole of the evidence on the relevant topic read back to them.
The Judge correctly summarised the effect of the transcript and, at the same time, reminded the jury that it was a matter for them. There was nothing said by the Judge which had the effect of misstating the evidence.
In my view, there was no need for the Judge to have called the jury back in and to have said anything more. However, the fact that he did so, by directing them specifically to ignore any comments which he had just made about the evidence, can hardly have prejudiced the appellant.
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.

With these principles in mind, I turn now to consider the evidence sought to be admitted as fresh evidence.
The fresh evidence sought to be led by the appellant came from the appellant’s wife, Maria Leal, and step-son, Antonio Leal, and a Portuguese resident named Carlos Nogueira Da Rocha.
There is a distinct lack of evidence as to why the appellant and his family did not make enquiries in Portugal before the trial.
It is apparent from their evidence that family members still live in Portugal and it is also apparent from the evidence of Mrs Leal and Antonio Leal that after they did travel to Portugal it was not particularly difficult to locate Mr Da Rocha.
The issue of whether the appellant or Mr Da Silva, the complainant’s father, went to Russia first was a live issue at the trial. Both the appellant and Mrs Leal maintained that the appellant left first and that the complainant’s father, Mr Da Silva, came home first. There seems to be no explanation as to why the enquiries were not commenced until after the appellant was convicted and remanded in custody.
The appellant’s counsel submitted that although the evidence may have been available at the time of trial, this Court should make allowance for the fact that the witness was on the other side of the world and the appellant had not been in touch with him for many years. It was not until the appellant’s wife and step-son actually arrived in Portugal and made contact with Mr Da Rocha that the evidence, in effect, became available.
My impression of the evidence heard on appeal from Mrs Leal and the appellant and his step-son as a whole, is that the gravity of the situation facing the appellant was not apparent to them until he was actually incarcerated after his bail was revoked in July 2017. Thereafter, things seemed to have moved relatively quickly.
I consider that the absence of evidence from anyone concerned about why the trip to Portugal was not made sooner is of high importance. I would find that, in all of the circumstances, the appellant has not satisfied the requirements for the admission of fresh evidence. However, should I be incorrect in that finding and since the Court has heard the evidence in full, taking into account the obvious language difficulties which the appellant has, I am prepared to assess the cogency of the evidence on the basis that the appellant has satisfied the requirements for its admission.
A miscarriage of justice will be established where the evidence, 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 appellant had that fresh evidence been before the jury.
The salient features of the evidence of Mr Da Rocha were contained in an affidavit sworn by him on 2 November 2017.
Mr Da Rocha said that he knew the appellant and Mr Da Silva from meeting at cafés in the Paredes district in Portugal in the mid-1980s.
Also contained in Mr Da Rocha’s affidavit were the following statements:
13.     I remember that I went to Russia for work in 1987.
14.     I am not sure of the exact date that I left but I am certain that it was 1987.
…
20.     Victor and Joaquim also went to Russia for work.
21.     We were all employed by a company called Qovoolsi.
22.     From memory, Vitor went to Russia first then Joaquim and then myself.
23.There was not a significant gap in time however between each of us going to Russia.
24.     I believe it would have only been a few days.
…
33.     When I worked in Russia, I worked in the one location.
34.     I recall that I was in Russia for 6 months and 2 days.
35.     I returned from Russia back to my home in Portugal.
36.     I did not return with Vitor and Joaquim.
37.     I cannot say exactly when Joaquim and Vitor returned home.
38.From memory, I think Joaquim came back first of the three of us because of his back problem.
39.I think Vitor must have returned around the same time as me and I remember that we caught up after my return to Portugal and our friendship continued.
40.     I maintained a good friendship with Vitor up until he moved to Australia.
…
42.     I only had contact with Vitor again in around August of this year.
Mr Da Rocha was presented for cross-examination on the hearing of the appeal and expanded to some degree on his affidavit. He explained that Antonio, the appellant’s step-son, contacted him by phone and arranged to meet him a few days later in Paredes. Mr Da Rocha testified that, at that meeting, Antonio told him that they were accusing his father, the appellant, and saying that he was never in Russia and that they wanted to talk to him about it. He was then asked about the circumstances that he was asked to recall:
QCan you remember as best you can what you were asked about.
AYes, I was asked if I could be a witness to confirm who had gone first to Russia and after.
QWhat is your memory now of who went first to Russia between –
INTERPRETER: So he said that ‘I still remember, yes, it was a long time ago, but I still remember’. And then I asked him the question, the rest of the question you were asking.
AWent first to Russia, was Vitor Leal, and who came first, who came back first was Vitor Da Silva – no, was Joaquim Da Silva, sorry. Joaquim Da Silva.
XXN
QDid you go to Russia at the same time as Vitor Leal.
ANo. I went one or two weeks after Victor Leal.
QDid you travel to Russia at the same time as Joaquim Da Silva.
ANo.
QWhen did Joaquim Da Silva go to Russia.
AI’m not really sure, I don’t – but I think it was two or three weeks after Vitor.
QBut you’re not really sure.
ANo, I’m not really sure.
QWhat year was it that you all went to Russia.
A1987.
QIt is possible that Joaquim Da Silva went to Russia before Vitor Leal.
AI don’t think so.
Mr Da Rocha said the reason he remembered that Vitor went first to Russia was because he recalled a conversation between them in a café in Paredes:
QAfter 29 years is it possible that you don’t know which of those men left to work in Russia first, that is between Vitor Leal and Joaquim Da Silva, it’s possible?
AI remember, I remember, that I remember that Vitor went first and I clearly remember the conversation in the café between them, that they were saying that Vitor was lucky because he was going first and they had to wait a little bit more.
QBut that conversation in the café is your only knowledge of who went first?
AYes.
I note that Mr Da Rocha, in his original affidavit tendered, did not purport to state definitively when the appellant and the complainant’s father, Mr Da Silva travelled to Russia. At that time, his memory was that the appellant left a few days before the complainant’s father. Later, when giving oral evidence, Mr Da Rocha conceded that he did not actually travel to Russia with either the appellant or the complainant’s father.
After evidence was given by Mr Da Rocha from Portugal, the respondent sought permission to call evidence in reply. Evidence was received from four other witnesses residing in Portugal. Those witnesses were Joaquim Soares Da Silva, Antonio Domingos Da Silva Monteiro, Antonio Agostino De Sousa Correia and Antonio Nunes Moreira. With the exception of Antonio Domingos Da Silva Monteiro, each of the affidavits of the other three witnesses was tendered on the appeal. All of the witnesses gave oral evidence.
Mr Da Rocha’s evidence is to be contrasted with the evidence of the four witnesses called by the respondent. Each of these four subsequent witnesses contradicted the evidence of the appellant and Mr Da Rocha that the appellant had gone to Russia before Mr Da Silva, the complainant’s father.
Even allowing for the possibility that each of these four witnesses’ memories were, to some extent, refreshed by being asked to recall the specific timing of these events, overall, their evidence casts doubt on the accuracy of Mr Da Rocha’s recollection as to the timing of the departures of the appellant and Mr Da Silva for Russia. Of the four witnesses called by the respondent, two witnesses in particular provided cogent reasons for why they remembered the relevant dates so well. The first, Antonio Agostine De Sousa Correia, said he recalled the date he left for Russia was on 9 March 1987. He said the reason he remembers the date was because his mother was quite ill at the time and she died a week later, on 16 March, a date which he has never forgotten. This witness was very confident in his evidence that the appellant went to Russia after Mr Da Silva. Unlike Mr Da Rocha, this witness actually travelled to Russia with Mr Da Silva.
The second witness, Antonio Nunes Moreira, travelled to Russia months before Mr Da Silva. He too had a cogent reason for why he recalled the arrival of Mr Da Silva around Easter time in 1987. He said that was because he and Mr Da Silva were neighbours in Portugal and that his mother had asked Mr Da Silva to bring some things to Russia for him when he came at Easter time. This witness also, significantly, did not recall the appellant being in Russia at all at the same time as him. He said he knew about the comings and goings of all of the workers because his job was to work in the canteen and he saw people as they arrived. He left Russia on 13 May 1987. If, as the other witnesses asserted, the appellant did not arrive in Russia until June 1987, that is an obvious explanation for why Mr Moreira did not recall his presence.
The totality of the evidence of each of the four witnesses called by the respondent, casts even more doubt on the accuracy of the recollection of Mr Da Rocha as to the timing of the departure of both the appellant and Mr Da Silva for Russia.
I add that the cogency of the evidence of Mr Da Rocha is further diminished by the fact that, on any view of the evidence, there was a time when both the appellant and his family resided in Portugal while the complainant, her mother and brother were still living in Portugal after the complainant’s father departed ahead of the rest of the family for Australia. There was never any dispute at trial that there was a lengthy period when the complainant’s father was absent from Portugal at the time when he travelled ahead of his family to Australia. During that time, the complainant and her mother and brother resided in Portugal at a time well before the appellant and his family emigrated to Australia, approximately a year after the complainant and her family.
The effect of that evidence is, irrespective of whether the complainant was accurate about the timing of her father’s departure for Russia, there was opportunity for the appellant to have committed the uncharged act complained of during a time when her father was absent from Portugal.
After careful evaluation of the evidence proposed to be led from Mr Da Rocha, I have reached the conclusion that, at its highest, it might tend to show that the complainant might have been mistaken as to the accuracy of her recollection of the timing of her father’s departure to Russia. It does not, however, tend to undermine the credibility of the complainant’s account of the uncharged act as there was no dispute that there was an opportunity for these acts to have occurred during a period of time when her father was absent from Portugal.
It must also be borne in mind that the proposed fresh evidence relates to only one aspect of a body of uncharged discreditable conduct evidence which was led at the trial. For these reasons, after careful evaluation of the evidence, I am satisfied that there is no significant possibility the jury would have acquitted the appellant had Mr Da Rocha’s evidence been available at the trial. I am satisfied that there has been no miscarriage of justice by the absence of this evidence at trial. In reaching this conclusion, I am mindful of the fact that the prosecution case in relation to the charged act of indecent assault was a strong one. The complainant’s brother, Paolo Silva, corroborated the complainant’s evidence that he was sent out to the shed on two occasions during the afternoon by the appellant. He also observed the complainant’s distress when he returned to the house. The complainant made a complaint to her school friend, Sandra Vilches, the very next day. Ms Vilches gave evidence that she witnessed the appellant within days of the offence wearing a bandaid to his face and asked him, somewhat cheekily, what had happened to him, to which he replied, “it was from a bad kiss.”
For all these reasons, I would refuse permission to the appellant to adduce fresh evidence and I would dismiss this ground of appeal.
The appeal against sentence
The sentencing Judge started with a sentence of three years imprisonment which he reduced by eight weeks and one day to reflect time spent in custody. The resulting head sentence being two years, nine months and 29 days. He imposed a non-parole period of 20 months. After finding there was no good reason to wholly suspend the sentence of imprisonment, the Judge considered and determined to order that the sentence of imprisonment be suspended and served on home detention, as the state of the legislation then was. As the sentence commenced on 12 September 2017, the non-parole period has now been completed.
On appeal, the appellant complains that the sentence is manifestly excessive. There is a further complaint that the sentence ought to have been wholly suspended.
The maximum penalty for the offence of indecent assault is a term not exceeding eight years. The appellant submitted that having regard to the nature of the offending, the age of the complainant at the relevant time and the short duration of the incident itself, that a starting point of three years was manifestly excessive. The appellant also submitted that factors such as the appellant’s age (66 at the date of sentencing), his health, his lack of criminal antecedents and the fact that he had been a hard-working man all his life, should have led the Court to conclude that the offending by the appellant was out of character and warranted a wholly suspended sentence.
The appellant pointed to a number of other sentences handed down in the District Court in recent years for offenders found guilty of indecent assault of young children. In all of those cases the offenders received sentences of two years’ imprisonment or less. Taking into account all of these circumstances, the appellant submitted that the starting point of three years, which represented over 40 per cent of the maximum available sentence, was manifestly excessive.
While a starting point of three years for one isolated instance of indecent assault might be said to be at the higher end of the sentencing range for this offence, I cannot agree that in all of the particular circumstances of this appellant, it is outside the range which was available to the sentencing Judge.
Although the appellant did not have any prior antecedents, and 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. That included a history of uncharged conduct both in Australia and in Portugal. This is not to say that the appellant was to be sentenced on the basis of other offences committed for which he was not charged. However, it does mean that he was not entitled to have the Judge treat the charged act as either out of character or as one isolated event.
Moreover, the two families were close friends and had been for some years. It was for that very reason the appellant was able to have such ready access to the complainant. The appellant’s offending therefore involved a gross breach of trust and I further note that the appellant has never exhibited any remorse.
In these circumstances, I am not prepared to say that a starting point of three years was outside the sentencing range available to the Judge. The Judge properly considered and determined that there was no good reason to wholly suspend the sentence as the factors referred to above did not outweigh the seriousness of the offending. I would dismiss ground 1 on the sentence appeal and refuse permission on ground 2.
For these reasons, I would dismiss the appeal against conviction and sentence.
PEEK J: I would dismiss the appeal. I agree with the reasons of Kelly J.
HINTON J: I have had the benefit of reading the judgment of Kelly J in draft for which I am grateful. I agree with Kelly J that both the appeal against conviction and the appeal against sentence should be dismissed.
With respect to the appeal against conviction and the first ground of appeal, counsel for the appellant cross-examined the complainant such that she was committed to the offence having occurred as she was preparing the evening meal, at a time when it was still daylight and between 6 and 7 pm, and during the summers months, she thought, because she was wearing jeans and a singlet, although she could not commit to it having occurred “around October towards December of 1991, or the earlier parts of 1992”. Respectfully, I do not think the Judge’s comment, set out in Kelly J’s reasons,[3] was entirely accurate. It was open to the jury to conclude that the complainant was not unsure about the time of year when the offence occurred. Her evidence of it being daylight, dinner time, between 6 and 7 pm and warm enough for her to be wearing a singlet very much suggested a particular time of year. The jury might have thought that what the complainant could not do was commit to a particular month within the range to which her description of when the offence occurred applied. Her description, of course, excluded the winter months which was the point that counsel for the appellant was concerned to make because the complainant said that the offence occurred whilst her father was in Portugal and the agreed facts proved that he was in Portugal between July and August 1991.
[3] At [28].
The trial Judge made the impugned comment “to stimulate some potential discussion”. In McKell v The Queen Bell, Keane, Gordon and Edelman JJ opened their joint judgment with the following statement of principle:[4]
In RPS v The Queen, Gaudron A-CJ, Gummow, Kirby and Hayne JJ, while discussing “the difficult task trial judges have in giving juries proper instructions”, adverted to the view that “has long been held that a trial judge may comment (and comment strongly) on factual issues”. Their Honours went on to say that:
although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.
(Emphasis in original.)
This statement in favour of judicial circumspection was made after their Honours had acknowledged that “[t]he fundamental task of a trial judge is ... to ensure a fair trial of the accused”. This fundamental task falls to be performed within a framework in which it is “for the jury, and the jury alone, to decide the facts”.
A trial judge’s “broad discretion” to comment on the facts of the case in a criminal trial is an aspect of the power by which a trial judge discharges the fundamental task of ensuring a fair trial of the accused. The discretion is to be exercised judicially as part of ensuring that the facts of the case are put “accurately and fairly” to the jury. It is not exercisable, at large, independently of the fundamental task described above. A fortiori, the trial judge’s summing-up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment.
[footnotes omitted]
[4] (2019) 93 ALJR 309 at [1]-[3].

The comment was unnecessary to the discharge of the Judge’s function.
The appellant’s submission is to the effect that the trial Judge’s comment negated the point that counsel for the appellant made in the course of her address resulting in a miscarriage of justice. I do not accept the submission. Counsel for the appellant’s cross-examination clearly exposed the inconsistency between the complainant’s evidence as to when the offence occurred and the indisputable fact of when her father was in Portugal. The jury heard that cross-examination three times, twice in short succession and with the benefit of counsel for the appellant having made her point abundantly clear in address. Whilst the Judge’s comment was not entirely accurate, I do not think the jury could have misunderstood or missed counsel’s point, nor do I think, in the light of the Judge’s further direction to ignore his comment, that the jury would not have had regard to counsel for the appellant’s argument.
Turning to the second ground of appeal, at trial there was a direct clash between the evidence of the complainant on the one hand and the evidence of the appellant and his wife on the other as to which of the appellant and the complainant’s father first travelled to and first returned from Russia. If the appellant left first for Russia and returned last as he and his wife said he did, the uncharged act said by the complainant to have occurred whilst her father was working in Russia could not have occurred as and when she said it did. In my view the fresh evidence summarised in Kelly J’s reasons, 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.[5] I agree with Kelly J’s analysis of the cogency of the evidence of each of Messrs Da Rocha, Da Silva, Correia, Monteiro and Moreira. In my view, the fresh evidence (by which I mean the evidence called on the hearing of the appeal by both the appellant and the respondent) was more likely to harm than help the appellant’s case.
[5] Rodi v Western Australia (2018) 92 ALJR 960 at [28] (The Court).
With respect to the appeal against sentence, I have nothing to add to Kelly J’s reasons.

[2019] SASCFC 57

24 May 2019

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Appeal

Fresh Evidence

Miscarriage of Justice

Sentencing

Conduct of Trial Judge