R v Durdin-Blake No. Sccrm-02-335
[2003] SASC 235
•23 July 2003
R v DURDIN-BLAKE
[2003] SASC 235
Court of Criminal Appeal: Debelle, Gray and Sulan JJ
DEBELLE J On 16 August 2002, the appellant was convicted, after trial by jury, of six sexual offences against his foster daughter.
The first count was a charge of indecent assault alleged to have been committed on 20 August 1997. The second count charged unlawful sexual intercourse alleged to have been committed between 20 April 1997 and 31 December 1997 by the applicant causing the victim to perform an act the fellatio upon him. The remaining four counts were unlawful vaginal sexual intercourse alleged to have occurred between 24 December 1998 and 8 June 2001.
The applicant applied for leave to appeal against the conviction. On 8 May 2003, Lander J refused leave. The applicant now applies to this Court for leave to appeal.
It is first necessary to deal with the delay between the conviction and the refusal of leave to appeal by Lander J. The initial application for leave to appeal was signed by the applicant on 17 September 2002 and lodged on 20 September 2002. The application was listed for hearing on nine occasions between 28 October 2002 and 28 April 2003. The applicant’s counsel was not ready to proceed until 28 April when the application was heard. On 8 May 2003, leave to appeal was refused. There is no point in listing the reasons for the delay. It is sufficient to say that no fault can ascribed either to the respondent or to the court.
The applicant filed a fresh application after Lander J had refused leave. When that application is reduced to essentials, the applicant relies on three grounds.
The first ground is that the first count of indecent assault alleges that the offending occurred on 20 August 1997. This was said to have been on the day of the first AFL football match played between Adelaide and Port Power, the so-called “Showdown”.
When the application for leave to appeal was first called on before him, Lander J pointed out that the first “Showdown” was played on 20 April 1997 and not on 20 August 1997. It was conceded by the prosecution that the date stated in the information was incorrect. In 1997, 20 August was a Wednesday when an AFL match would not normally be played. The applicant now asserts that the error as to date is material and has given rise to a miscarriage of justice. The applicant also relies on the fact that, on the first day of the trial before the jury, the date of the commencement of the offending charged in the second count was altered from 20 April 1997 to 20 August 1997.
The applicant says that this confusion as to the dates of those two offences has tainted the whole of the trial and prevented him from leading evidence as to his whereabouts on either 20 April 1997 or 20 August 1997. The applicant further asserts that, from January 1997 to 14 June 1997, he was working with a team in the south-east of South Australia. There was no affidavit evidence to that effect, nor is there any evidence as to whether he returned home on occasions during that period of almost six months.
More significantly, as the information alleged in relation to the first two counts that they occurred on either 20 April or 20 August 1997, the applicant had ample opportunity before the trial to ascertain his whereabouts and to lead such evidence as he wished concerning his whereabouts on those dates and to file an alibi notice if that were appropriate. The fact of the matter is that he did not instruct his counsel that he was away from home in either April or in August 1997. He did not mention that he was also away in August 1997 until giving evidence and, when doing so, took his counsel by surprise. It only remains to be added that the applicant’s counsel had drawn his attention to the need to file an alibi notice. The issue of his whereabouts in both April and August in 1997 were clearly drawn to the applicant’s attention before the trial. Yet he did not instruct his counsel that he was employed at a place distant from the place of the alleged offending in either April or August 1997.
It should be added that the question as to whether the error as to the date of the offence was material depends on the manner in which the trial was conducted and the use to which the date was put in evidence. The case for both the prosecution and the defence is concerned with the first game between Adelaide and Port Power rather than with the date 20 August 1997. The incorrect date did not, therefore, mean that the parties did not direct their attention to the same issues and did not mean that the applicant was treated unfairly: The Queen v Pfitzner (1976) 15 SASR 171 at 192.
For all of these reasons, the incorrect dates on the information in respect to the first count did not lead to any injustice nor did the amendment of the date on the second count lead to any injustice. The contrary position is plainly not arguable. The emphasis upon these dates smacks of opportunism, having regard to the fact that Lander J had drawn attention to the incorrect date.
As for the other five counts, the applicant denies the allegations. He asserts that the incorrect date permeated through to the other counts. That plainly is not arguable. The allegations on each of the other counts are quite separate and independent from the first count.
The second ground of his application is founded on an alleged medical condition suffered by him. In his written application, the applicant asserts that he could not have acted in the manner alleged by the complainant because he had suffered a number of medical conditions which had caused penile dysfunction. He asserts that he was unable to maintain an erection.
There were at least two difficulties with this ground. The first is that the applicant and his counsel spent a considerable amount of time considering whether the applicant should lead evidence concerning his problem with maintaining an erection. In the result, it was decided that no evidence would be led on this issue. Thus no evidence was given on this topic by the applicant, his wife, Dr Birdsey, who was his general practitioner, and Dr Elder, a urologist who had been consulted by the applicant.
The applicant had given clear written instructions not to lead this evidence. He gave signed written instructions not to call Dr Birdsey or Dr Elder. He had earlier given written instructions not to call another urologist and another general practitioner who had treated him before Dr Birdsey. At least one of the sets of written instructions signed by the applicant notes that the applicant had not been telling a consistent story as to his difficulties, and this was a further reason why it was decided that no evidence would be led on this topic.
The second difficulty is that the applicant’s assertions as to the alleged dysfunction are not consistent. I have already said that was mentioned in the signed instructions. Furthermore, in this application, the applicant says that he has suffered from this condition since 1994. However, he was not prepared to call the medical advisors whom he consulted in 1994 and 1995. Furthermore, he had told Dr Elder that his condition had existed from some time in 1999. His instructions to Dr Elder point up the inconsistencies in his evidence.
Furthermore, at the trial, evidence in rebuttal was led from a psychologist who had interviewed the applicant on 19 July 2001. In that interview, the applicant had told him that he enjoyed a good sexual relationship with his wife until two and a half years before the interview, when he had the prostate and other problems, and had lost interest in sexual relations. This only further underlines the inconsistencies to which I have already referred.
The question of the failure to call evidence on this issue is plainly not arguable.
The final ground of appeal alleges that his counsel did not act according to his instructions. The particulars of this allegation are that his counsel failed to call a urologist and refused to call his wife. However, the evidence of his counsel entirely belies these assertions. His counsel obviously became concerned with the nature of his instructions. He kept tape recordings of his interviews with the appellant immediately before, and during, the trial. Those recordings have been transcribed. It is clear that the appellant, after receiving advice, decided not to call any medical evidence or to call his wife. This ground is plainly not arguable.
The prosecution case against the applicant was strong. In relation to the evidence from the complainant, there was one particular item of evidence which was damming for the applicant. The complainant had left home shortly after the last incident which is alleged to have occurred in June 2001. One night she stayed with a woman who was called to give evidence. While staying at the woman’s house, the complainant rang the applicant. The woman at whose house the complainant was staying listened to part of that conversation and made notes of it. She was able to listen to the conversation on another phone in the house. The conversation had clear sexual overtones. In the course of that conversation, the applicant made statements which had sexual overtones. He differentiated between his daughter and the complainant, whom he described as his girlfriend. This evidence was clearly adverse to the applicant. The applicant now complains that an appropriate warning was not given in relation to this evidence. That is not a ground of appeal listed in the application. It arises too late for consideration, and in any event, it cannot be said that the issue is at all arguable.
For all of these reasons, I do not think there are any arguable grounds which warrant the granting of leave to appeal. I would, therefore, refuse the application.
GRAY J I agree.
SULAN J I agree.
DEBELLE J The order of the court will, therefore, be application refused.