R v FRANCO - [2010] SASC 132

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FRANCO
[2010] SASC 132
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice Kelly)
7 May 2010
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - COMMENCEMENT OF ACTION
Appellant charged on an information filed in District Court - trial proceeded on a second information, which replicated three of the four charges on first information - trial proceeded on the basis that the common law in relation to evidence of recent complaint was applicable - whether s 34M Evidence Act 1929 (SA) applied - s 34M Evidence Act commenced after the filing of the first information but before filing of the second information - application of transitional provision - when proceeding are taken to have commenced - whether filing of a fresh information constituted the commencement of proceedings thereby attracting the application of s 34M Evidence Act.
Held: filing of fresh information did not mark the commencement of new proceedings, but was a step in the existing proceedings - s 34M Evidence Act did not apply.

CRIMINAL LAW - EVIDENCE - COMPLAINTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Appellant charged with two counts of aggravated indecent assault and one count of unlawful sexual intercourse against a child complainant - evidence of recent complaint - whether trial judge's directions confused the proper use of the evidence as going to credibility of complainant and consistency of conduct with an impermissible hearsay use - whether directions created risk that the jury would misuse the evidence.
Held: trial judge properly directed as to appropriate use of recent complaint evidence - appeal dismissed.
Evidence Act 1929 (SA), s 34M; Statutes Amendment (Evidence and Procedure) Act 2008 s 18, s 22, referred to.
R v Seigneur (2009) 103 SASR 207, applied.
Application for Reservation of Question of Law to the Court of Criminal Appeal (1997) 69 SASR 550, distinguished.

R v FRANCO
[2010] SASC 132
Court of Criminal Appeal: Vanstone, White and Kelly JJ

VANSTONE J: The appellant was convicted in the District Court by verdicts of a jury for two counts of aggravated indecent assault and one count of unlawful sexual intercourse with a person under 14 years. His appeal challenges the correctness of jury directions given by the trial judge concerning the use of evidence of complaint. The appellant argues that the judge applied common law principles relevant to directions upon recent complaint whereas the new statutory regime dealing with evidence of complaint, contained within s 34M of the Evidence Act 1929, was applicable.
The applicable law
During the course of this matter the Director of Public Prosecutions filed two informations in the District Court. The original information was dated 29 September 2008. It contained the three charges upon which the appellant ultimately went to trial, as well as a charge of rape. It appears from materials handed to the Court upon the hearing of the appeal that on 27 October 2009, being six days prior to the scheduled commencement of the appellant’s trial, a fresh information dated 2 November 2009 was forwarded to the Registry, under cover of a letter of the Director. When the trial commenced on 2 November 2009, the appellant was arraigned on the new information. No nolle prosequi was entered on the rape charge.
The law in relation to jury directions on evidence of complaint was altered by s 18 of the Statutes Amendment (Evidence and Procedure) Act 2008. The commencement of the new section 34M of the Evidence Act 1929 was to be regulated by a provision contained within the same Act, to this effect:
22. Transitional Provision
The amendments made by Part 4 of this Act to the Evidence Act 1929 apply to proceedings commenced after the commencement of that Part.
Part 4 of the amending Act commenced on 23 November 2008.
In R v Seigneur (2009) 103 SASR 207, this Court held that, for the purpose of s 22, proceedings in a superior court should be taken to have commenced on the date upon which an information was presented or filed in that court.
In this case, the appellant argues that the proceedings should be taken to have commenced upon the filing of the second information on 27 October 2009 (or at least upon the appellant’s arraignment upon that information on 2 November 2009) rendering the new provisions applicable.
The critical question is whether the presentation of the second information marked the end of the extant proceedings and the commencement of new proceedings in the District Court, for the purposes of the transitional provision, thereby attracting the new provisions.
In my mind the answer to that question is readily apparent. As I mentioned, the three charges on the second information replicated three of the four charges on the first information. The second information proceeded to trial on the basis of the statements already filed in the court. The trial on the second information was heard at the time appointed for what would have been the trial on the first information. The file number appearing on each information was identical. The presentation of the second information could be viewed as an amendment of the original one. Indeed, the Director could have effected the same change by simply amending the first information to strike out the rape charge. The fact that a court document entitled “Report of Prisoner Tried at the Criminal Sessions of the District Court of South Australia Held at Adelaide” dated 25 October 2009 (apparently signed by a clerk) erroneously records the words “Not proceeded with” against each of the original four counts is not to the point. The same document also bears the endorsement “DPP file Information dated 2/11/09 replacing Information dated 29/09/08”. I do not consider that this document speaks to the question of whether the second information was, or was not, a continuation of the original proceedings.
A finding that there was only one proceeding in the District Court is consistent with the reasoning of the majority judgments in Seigneur. In that case the Director had filed one information only. However, in determining the way in which the transitional provision s 22 was to be interpreted, members of the Court made obiter statements which fortify the view I have just expressed. In the course of reaching the conclusion that “proceedings” did not mean merely any step in the process of proceedings, Gray J made this observation at [37]:
Once a proceeding has been initiated by the filing of an information in a court of trial it is readily apparent that that information may be amended, may be substituted by another information, or may be the subject of a retrial order. I would understand each step to be properly viewed as being within the initiating proceeding or process.
Like Gray J, Kourakis J concluded that while “proceedings” was capable of referring to both an action and a step taken in an action, “proceedings commenced”, as used here, should be taken to refer to the institution of civil and criminal actions: [122]-[123].
Mr Vadasz, for the appellant, sought to fortify his argument by reference to Application for Reservation of Question of Law to the Court of Criminal Appeal (1997) 69 SASR 550. There, this Court held that a provision entitling the Director of Public Prosecutions to have reserved to the Full Court questions of law arising from a preliminary ruling was available, even though the amendment facilitating such a course came into effect after the first information was filed by the Director. However, the transitional provision governing the operation of that amending Act was in terms distinguishable from s 22. It used the word “proceedings” in a different sense, making a link to a specific information. It provided:
11(1) If an information was laid in the Supreme Court or the District Court before the commencement of this Act, the amendments effected by this Act do not apply to the proceedings founded on that information or any related proceedings and the provisions of the principal Act affected by the amendments continue to apply as if the amendments had not been made.
(2)If an information is laid in the Supreme Court or the District Court on or after the commencement of this Act, the amendments effected by this Act apply to the proceedings founded on the information and any related proceedings.
I do not consider that this decision is of assistance in the instant case.
In my view it is clear that the provisions relating to complaint evidence in s 34M Evidence Act were not applicable to the trial and the judge was correct in applying common law rules to the evidence of complaint.
Directions on complaint evidence
Counsel for the appellant submitted that even if the common law rules relating to recent complaint evidence were applicable, the directions given were inadequate. It was put that in her directions the trial judge had confused two concepts, namely, that the evidence of complaint could not prove the truth of the allegations and that it could show consistency of conduct. It was put that the judge “should have explained the distinction between using the evidence to show consistency of conduct and using the evidence as confirmatory proof of what was stated”. Counsel pointed to two separate passages in the summing up. I set them out.
Another factor which you may use when considering credibility and reliability of witnesses is what is called in law ‘complaint evidence’. In this case, the prosecution has submitted to you that the fact that [the complainant] complained to her mother about two of the alleged incidents shortly after she returned home, makes it more likely that she is telling the truth here in court.
The judge then went on to describe the defence position in respect of the complaint. Counsel further pointed to a direction given a little later, to this effect:
I said that such evidence is only allowed for a very limited purpose. If you find that [the complainant] did make a complaint then you may use that evidence on the basis that it shows how the allegations came to light and it shows whether [the complainant] behaved in a manner which is consistent with her allegations. It is not admitted as evidence of the truth of what [the complainant] said to her mother.
I do not find anything confusing in the directions. The first one was not strictly a direction, as it only set out a summary of the prosecution submission on the use to which the complaint evidence might be put. The prosecution submission was not incorrect. Anyway, this was no more than an introduction to the directions of law which the judge went on to give. Although the first passage does not refer to consistency of conduct, which is the common expression of the way in which recent complaint evidence can bear upon the credibility of a complainant, the second passage did, and the effect of both is much the same. The later direction is strictly correct. Here the judge incorporated reference to consistency of conduct and the question whether any such consistency could fortify the allegations made by the child.
In my view there was no danger that the jury might have misused the evidence.
Conclusion
Amended grounds of appeal were forwarded to the Court by facsimile during the morning upon which the matter was to be argued, along with an amended outline of argument. Counsel for the Director of Public Prosecutions, Mr A Kimber, did not object to the Notice of Appeal being amended to incorporate the recast grounds. An order to that effect was made. The appeal notice in this matter was filed well over two months after the conclusion of the appellant’s trial. Although an application for an extension was foreshadowed in the papers and an affidavit filed, the matter was not raised at the time of the hearing upon permission to appeal. Notwithstanding that fact, Mr Kimber indicated that no objection was taken to the extension of time.
I would make the following orders:
1.time within which to file a Notice of Appeal extended to 3 February 2010;
2.appeal dismissed.
WHITE J: I agree with the orders proposed by Vanstone J and with her reasons.
KELLY J I agree with the orders proposed by Vanstone J and with her reasons.