R v Dhir

Case [2019] SASCFC 55

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DHIR

[2019] SASCFC 55

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Doyle)

22 May 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - MISDIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION

Appeal against the convictions of the appellant, Mr Dhir, of one count of digital rape, two counts of aggravated assault causing harm, and two alternative counts of aggravated assault. The complainant, S, was the appellant’s wife.

It was alleged that Mr Dhir committed the rape (count 2) by putting his hand under S’s jeans whilst at a train station, and committed the aggravated assault causing harm (count 3) by putting his arm around S’s neck whilst walking away from another train station shortly after the alleged rape. The counts of aggravated assault causing harm were committed in the matrimonial home in the course of an abusive and domineering relationship.

The appellant appeals on the following grounds:

1. The Judge failed to adequately direct the jury in accordance with s 34R of the Evidence Act (SA) as to the permissible and impermissible uses of certain evidence.

2.  The Judge failed to adequately direct the jury as to the permissible and impermissible use of evidence of admissions said to have been made by the appellant.

3.  The Judge failed to direct the jury as to the permissible and impermissible use of evidence of the complainant’s interaction with two witnesses.

4.  The Judge failed to direct the jury as to the permissible and impermissible use of evidence of the complainant’s distress given by four witnesses.

5.  The Judge erred in directing the jury to ignore the submission of the appellant at trial to the effect that the complainant had an opportunity to report the allegation of rape after the alleged event, but did not do so.

6.  The verdicts on counts 2 and 3 were unsupported by the evidence.

7.  The trial miscarried as a result of the wrongful admission of certain evidence.

Held per Kourakis CJ (Stanley and Doyle JJ agreeing), allowing the appeal on grounds 3, 4, 5 and 7, and dismissing the appeal on grounds 1, 2 and 6:

1. Section 34M(2) of the Evidence Act 1929 (SA) does not prohibit the making of a submission that, in scrutinising the plausibility of a complainant’s account, a jury is entitled to have regard to the riskiness of the behaviour or the opportunity that the complainant would have had to immediately complain of an accused’s behaviour, irrespective of whether a complaint was or was not made.

2.  By directing the jury to…

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AGLC
R v Dhir [2019] SASCFC 55
Case
[2019] SASCFC 55
Decision Date

CaseChat Overview and Summary

The appeal concerned Mr. Dhir, who was convicted in the District Court on multiple counts, including assault and rape, stemming from allegations made by his wife, S. The dispute centred on the admissibility and use of certain evidence, and whether the trial judge had adequately directed the jury on the relevant legal principles.

The court was required to determine several legal issues, including whether the trial judge had erred in withdrawing a factual issue from the jury concerning the alleged conduct at the Showgrounds train station, and whether the jury might have given undue weight to evidence of the complainant's distress. The court also considered whether the verdicts on counts 2 and 3 were unreasonable and unsupported by the evidence.

The Chief Justice, with whom Stanley and Doyle JJ agreed, upheld the contention that the judge ought to have directed the jury on the limited use of the evidence of distress. Furthermore, the appeal was allowed on the grounds that the judge wrongly withdrew the factual issue concerning the improbability of Mr. Dhir acting as described by S at the Showgrounds train station. The court rejected the contention that the verdicts on counts 2 and 3 were unreasonable. Consequently, all convictions were quashed, and the matter was remitted for a new trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I would reject the contentions underlying issues 1, 2 and 3 and therefore dismiss grounds 1 and 2. I uphold the contention on issue 4 that the Judge ought to have directed the jury on the limited use of the evidence of distress. I would also uphold the contention on issue 5 and therefore allow the appeal on grounds 3, 4, 5 and 7 and order a new trial. I would reject the contention that the verdicts on counts 2 and 3 were unreasonable and therefore dismiss ground 6.The evidence The appellant and S are of Indian ethnicity. They married in February 2016 in India. The marriage was arranged through their parents. Mr Dhir returned to Australia after the wedding, but S remained in India until December 2016. S testified that Mr Dhir verbally abused her from shortly after her arrival. She testified that the abuse occurred on a daily basis and became progressively worse. On New Year’s Eve 2016, Mr Dhir assaulted her for the first time. According to S, Mr Dhir frequently slapped and bit her, and controlled every aspect of her life after that time. Mr Dhir did not give evidence, but the defence case as established in cross‑examination and closing addresses was that S had manufactured the allegations because of their failing relationship and because she realised that by claiming to be a victim of domestic violence she might obtain permanent residency status in Australia. Count 1 alleged that Mr Dhir had assaulted S by slapping her on 25 February 2017. S testified that Mr Dhir returned from the gym at about 10.00am. S said she could sense that Mr Dhir had consumed alcohol and asked him if he had been drinking. Mr Dhir shouted at her and forced her onto the dining table. Mr Dhir licked, kissed and poured water on her face, and slapped her more than 50 times over the course of several hours. Later that day, S and Mr Dhir went shopping in the city centre. They then travelled to the Showgrounds to catch a train to their home in Ascot Park. They arrived at the Showgrounds train station between 3.00pm and 4.00pm. S cried whilst waiting on a bench at the train station because Mr Dhir had forced her ‘to come with him’. S testified that whilst seated on the bench, Mr Dhir aggressively held her tightly around her neck and pushed her, hurting her ribs. He again slapped and licked her face and tried to kiss her on the lips. Mr Dhir also put his hand into S’s pants, telling her that he was ‘making love’. S complained that what he was doing was ‘not love-making’ and that they were in a public place. Mr Dhir was angry and did not listen to her. He touched S very roughly and he inserted his fingers into her vagina. S told him to stop and tried to get away but Mr Dhir pulled her back onto the bench. That conduct is the subject of count 2, the charge of rape. S testified that, after digitally raping her, Mr Dhir tried to force her to accompany him home. S refused and remained at the train station as he walked away. Mr Dhir returned a short time later. He shouted at her and ‘tried to push me with his feet’. Mr Dhir grabbed and pulled her, demanding that she ‘go home with me’. He dragged S onto the next train to Ascot Park.

Decision

Reasons for decision

Finally, I observe that the photographs showed bruising on S which was consistent with the offence charged in count 5 and for which there is no obvious explanation consistent with the innocence of Mr Dhir.Conclusion For the above reasons I would dismiss Mr Dhir’s appeal against the verdicts on counts 2 and 3 on the grounds that they are unreasonable and not supported by the evidence. However, I allow his appeal against his convictions on all counts on the grounds that the Judge wrongly withdrew the factual issue concerning the improbability of Mr Dhir acting as described by S at the Showgrounds train station and on the ground that the jury may have given undue weight to the evidence of distress.Orders The appeal is allowed. All convictions ordered on the District Court information are quashed and the matter is to be remitted for a new trial. STANLEY J: I would allow the appeal and remit the matter for a new trial. I agree with the reasons of Kourakis CJ. DOYLE J: I agree with the reasons and orders of the Chief Justice.

Ratio Decidendi

Legal Principle Established

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