R v Durdin-Blake No. Sccrm-02-335
[2003] SASC 133
•8 May 2003
R V DURDIN-BLAKE
[2003] SASC 133
Criminal
LANDER J. This is an application for leave to appeal against conviction.
The appellant was charged on information in the District Court with six counts of sexual offences against his foster child.
The first count was a charge of indecent assault alleged to have been committed on 20 August 1997.
The second count was unlawful sexual intercourse alleged to have been committed between 20 August 1997 and 31 December 1997, by the applicant causing the victim to perform an act of fellatio upon him.
The remaining four counts were unlawful vaginal sexual intercourse, which offences were alleged to have occurred between 24 December 1998 and 8 June 2001.
The applicant pleaded not guilty to all charges, but after a trial by jury, on 16 August 2002, he was convicted on all counts.
On 18 December 2002 he was sentenced to be imprisoned for ten years and a non-parole period of six years and six months was fixed, the sentence to date from 16 August 2002.
A separate application for leave to appeal against sentence was refused by me on 28 April 2003.
The application for leave to appeal was signed by the applicant on 17 September 2002 and filed on 20 September 2002.
The matter has been called on on a number of occasions since that time but it was not until last month that the applicant’s counsel was in a position to present any submissions on the application, and not until 28 April 2003 that the application for leave to appeal could be heard out.
It would be a fruitless exercise to inquire into the reasons for the delay but it is enough to say that no fault can be ascribed to the respondent or to the Court.
The application for leave to appeal, in its original form, sought leave upon the basis that the decision was wrong, and the applicant relied upon s 352(1)(c)(ii) of the Criminal Law Consolidation Act 1935. That section has no relevance to this matter or to the grounds of appeal.
It is clear that the applicant was purporting to proceed under s 353 of the Act.
Eventually, after a number of hearings, the applicant sought and was granted leave to amend the proposed grounds of appeal which, in essence, were these:
1.The trial on all counts miscarried in that the information regarding the first count contained an incorrect allegation; i.e. that the alleged offence occurred on the 20th day of August 1997 when it should have been the 20th day of April 1997;
2.The appellant’s counsel at trial failed in his duty to his client;
and
3.The verdicts of guilty on the six counts were, in all the circumstances, unsafe and unsatisfactory.
The first two grounds have been particularised although I doubt that the particulars are accurate or adequate.
The prosecution case was that the complainant was the foster child of the applicant and when she was ten years old the applicant began to interfere with her sexually.
It was the prosecution case that the applicant’s conduct commenced with relatively minor touching but proceeded to a “full sexual relationship”. The sexual relationship started when the complainant was ten and finished when she was fourteen.
The complainant and her younger sister were removed from their biological parents when the complainant was two and they were placed in the care of the applicant’s family.
It was the prosecution case that the first time the accused ever sexually touched his foster daughter was on the day of the first Australian Rules Football game between Port Power and the Adelaide Crows (the first Showdown). It was the prosecution case that at that time the family was living in a town in the mid North and, whilst the complainant’s foster mother and her sister were out, the applicant reached across and with his hand grabbed the child on the breast.
It is the prosecution case that after that time the applicant’s conduct became more brazen and he committed the further acts alleged in the different counts. It was the prosecution case that the relationship developed to the extent that the applicant had vaginal sexual intercourse with the victim between one and three times a week.
The matter proceeded upon the basis that the first sexual act, which was the subject matter of count one, occurred on the day on which the first AFL football match took place between Port Power and the Adelaide Crows.
When this matter was first called on before me I pointed out to the applicant’s counsel that the first Showdown did not occur in August 1997 but much earlier in the year. I pointed out that there were two Showdowns each year, one at the start of the football season and one near the end.
Inquiries were made by counsel and he ascertained that the first Showdown occurred on 20 April.
It is conceded by the respondent that the date of the alleged offence contained in the particulars on count one of the information is incorrect and it should read 20 April 1997.
The applicant asserts that the error in the information is material and as such has given rise to a miscarriage of justice.
In my opinion, whether or not the error in the information is material in this case depends upon a consideration of the manner in which the trial was conducted and the use to which the date was put in the evidence.
It is clear, from the evidence, that both the prosecution and the defence case directed itself to the first Showdown, rather than to the date of the 20th of August.
The incorrect date, in my opinion, in this case did not mean that the parties did not direct their attention to the same issues and did not mean that the accused was not treated fairly: R v Pfitzner (1976) 15 SASR 171 at 192.
In my opinion, the incorrect date in the information did not cause the applicant any injustice and any contrary argument is not arguable.
In any event although the notice of appeal claims that the incorrect date permeated the rest of the counts that is simply not so. The date of the first count was not relevant in any way to a consideration of the other counts.
At the very best the applicant’s argument is restricted to the first count but, in any event, as I have already said, in my opinion, is not arguable.
Next it is complained that counsel failed to carry out his instructions in the conduct of the applicant’s defence. It is submitted that counsel should have called evidence from the applicant’s wife, child and foster child.
After this allegation was first made I allowed the matter to be adjourned to enable trial counsel to put any facts and material before me in answer to the assertions made in the notice of appeal.
Counsel swore an affidavit addressing the matters raised in the grounds of appeal.
I need not recite all of the matters in the affidavit. I am satisfied from the contents of the affidavit, and the exhibits to it, that counsel applied himself appropriately to the conduct of this defence.
There is no doubt that counsel was concerned about his relationship with his client because, with the knowledge of his client, he taped a number of conversations between him and his client, in which he received his instructions in relation to the applicant’s defence. Those tapes have been transcribed and are exhibited to counsel’s affidavit.
I am satisfied that counsel gave proper advice to his client in the conduct of his defence. I am also satisfied that counsel complied with his client’s instructions in all respects.
It was said that counsel’s advice not to call various witnesses was wrong. For example, it was said that counsel should have called the applicant’s wife who could have given evidence on a number of topics. I do not agree with that.
I am not sure that she could have given any admissible evidence in relation to the topics upon which it is now claimed that she should have been called. However there were real risks in calling the applicant’s wife on the matters which the applicant now says she could have deposed. The evidence that she would have given would have been inconsistent with statements she had made prior to the trial.
Lastly, and even more importantly, if she had been called on these topics and other witnesses had been called on those same topics it is probable that the applicant’s character would have been put in issue. As Ms Davison, who appeared for the DPP on this application, said that would have been a catastrophe for the applicant.
I am not satisfied that any arguable case has been put forward concerning the conduct of the applicant’s counsel at trial.
The case against the applicant was very strong. Apart from the complainant’s evidence there was one item of evidence which was damning.
The complainant left home shortly after the last incident is alleged to have occurred in June 2001 and for one night stayed with a woman who was called to give evidence.
Whilst the complainant was at that woman’s house she rang her father and, during the telephone conversation, the woman at whose house she was staying, listened to part of that conversation. That woman made notes.
She said that she recognised the applicant’s voice. The complainant also referred to the applicant as “Dad”. She said that during the conversation the applicant was crying. She made notes of the conversation. She recounted the conversation in the following terms.
I set out her evidence in that regard:
“A‘Can anyone else hear us on the phone. No. If you go with Jasmin, I won’t see you. Crying, crying. Yes, you will. Not just now. Cry cry. But I thought you were my girlfriend. I am, but I need a break. More crying. Stop crying. I just need a break. Where are you. I can’t say. Are you at Rebecca’s. No. Where are you. I can’t say. Is anyone else listening on the phone. No. My family is coming apart. Rebecca won’t talk to me. It’s only you I do things with and that I love you, you know that, don’t you. Yeah dad, I know, but I just need a break, a holiday. If you don’t let me go, you won’t see me again. He started to cry again. Stop crying. You still have Theresa.’ He said ‘That’s not the same. She’s my daughter you’re my girlfriend and I love you. We can leave again if you want to. No, mum needs you now. I am sick of getting the blame for everything. You know mum goes to hospital on Monday. Yes. And I go to court on Wednesday in Adelaide. Yes. I thought you could come with me. No dad, I need a break. I’m a big girl now. You don’t have to be with me all the time. I know but I love you. Cry again’.”
The conversation has clear sexual connotations. The applicant’s statement: “It’s only you I do things with and that I love you, you know that, don’t you” has a clear sexual connotation. The applicant’s differentiation between his daughter and the complainant, as his girlfriend, again suggests an illicit relationship.
In my opinion, the prosecution case was a strong one. I do not think that it is arguable that the verdicts were unsafe or unsatisfactory.
For those reasons I would refuse leave to appeal.