R v H, GJ - [2014] SASCFC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Case Stated)
R v H, GJ
[2014] SASCFC 34
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Bampton)
10 April 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
Following the refusal of a stay of proceedings application, an application was made to the Full Court for an order requiring the District Court to refer certain questions to it for consideration and determination pursuant to s 350(5) of the Criminal Law Consolidation Act 1935 (SA). The applicant was awaiting trial in the District Court at the time of making this application.
Held (the Court):
It is important that the criminal trial process is not fragmented. This principle weighs heavily against referring a question on an issue antecedent to trial to this Court. It is also as important to the community, as it is to an accused, that allegations are resolved in open court so that evidence on which an offender is either convicted or acquitted is a manner of public record (at [27]).
The District Court Judge provided extensive reasons which, on their face, correctly refer to applicable legal principles and relate those principles to the applicant’s particular circumstances. These reasons do not appear to suffer any gross error (at [28]).
The application to require the District Court to refer the questions of the correctness of the Judge’s ruling to this Court is dismissed (at [29]).
Criminal Law Consolidation Act 1935 (SA) s 50, s 56, s 348, s 350, s 353, referred to.
Jago v District Court (NSW) (1989) 168 CLR 23, discussed.
Hoch v The Queen (1988) 165 CLR 292; R v H,GJ [2014] SADC 20, considered.

R v H, GJ
[2014] SASCFC 34
Court of Criminal Appeal: Kourakis CJ, Vanstone and Bampton JJ

THE COURT: The applicant, GJH, applied to the Full Court of this Court for an order requiring the District Court to refer certain questions to it for consideration and determination pursuant to s 350(5) of the Criminal Law Consolidation Act 1935 (SA) (the Act). The application was heard on 21 February 2014, on which day the Court dismissed the application. We now publish our reasons.
The History of the Prosecution
At the time of making his application, the applicant was awaiting trial in the District Court on two indictments. The first dated 25 February 2013 (the February Information), which was listed for trial on 24 February 2014, charged the applicant with five counts as follows:
1.Persistent sexual exploitation of a child (s 50(1) of the Act) against DC the applicant’s daughter committed between 19 May 1975 and 28 February 1989.
2.Indecent assault (s 56(1) of the Act) against SC, another daughter of his domestic partner, committed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v H, GJ

Details

AGLC: R v H, GJ [2014] SASCFC 34
Case: [2014] SASCFC 34
Decision Date: 10 April 2014

CaseChat Overview and Summary

This matter came before the Supreme Court of South Australia on a case stated by a District Court judge. The applicant, R v H, GJ, was charged with indecent assault, with the alleged offending occurring between 16 October 1984 and 1 June 1985. The charges stemmed from an earlier information laid in the Magistrates Court in 2011, which also included charges of rape and unlawful sexual intercourse alleged to have occurred between 1983 and 1985. The central dispute concerned the admissibility and weight of evidence relating to the applicant's defence, particularly in light of the theft of documents prepared by the applicant for his defence.

The legal issues before the court were whether the District Court judge erred in admitting certain evidence and in his findings regarding the applicant's defence. Specifically, the court was required to consider the implications of the applicant's assertion that crucial defence documents, including his own notes, correspondence with legal representatives, and medical records, were stolen. The court also had to determine the significance of the fact that witness declarations were prepared by "cutting and pasting" from earlier statements, without re-interviewing the witnesses to ascertain the extent of their present memory.

The court's reasoning focused on the principles of fairness and the right to a proper defence. It was noted that the applicant claimed to have retained medical records from his general practitioner, which he believed would assist in establishing his whereabouts and the ages of the complainants. The court considered the applicant's evidence that these records, along with other defence materials, were stolen. The court also addressed the practice of using "cut and paste" witness statements, highlighting the importance of ensuring that witnesses are testifying from their current recollection, not merely verifying past statements. The judge's findings on these matters were central to the determination of the case.

The case was remitted to the District Court for further consideration in light of the Supreme Court's determination on the questions of law raised in the case stated.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

An Information was first filed in the Magistrates Court charging the applicant with offences against KD on 16 November 2011. It charged one offence of rape and another of unlawful sexual intercourse alleged to have occurred between 1983 and 1985. On 25 January 2013 another information was laid in the Magistrates Court charging one count of indecent assault alleged to have been committed between 16 October 1984 and 1 June 1985. It is that charge which is the subject of the March Information in the District Court.Evidence and Findings on the Application The committal declarations sworn for the purposes of the 2011 charges were prepared by a police officer who “cut and pasted” them from the 1987 statements. The Judge found that the police investigators did not interview SC and JC in order to establish the extent of their present memory of the events unaided by their earlier statement. JC and SC simply swore supplementary witness declarations on 26 July 2011 deposing that they had read their earlier statements and verifying that the statements were a true and accurate record of the events. The Judge also received three affidavits from GJH in which he deposed to the theft in August 2012 of documents prepared by him for the purposes of defending the charges brought against him. The documents include a briefcase (briefcase 1) containing:•all court documents including all statements of complainants ‘as marked up by me’;•emails between himself, his solicitor and barrister;•‘homework’, including ‘documentation identifying dates places and times that assisted me in ascertaining my whereabouts at relevant times of my alleged [sic]offending;•medical evidence including ‘doctors letters, and medical records that assisted me in ascertaining dates, times and places including where I was residing, and the ages of the complainants at particular times’. The medical evidence, to which GJH referred, was summarised in the reasons of the Judge as follows:[3]In his affidavit sworn on 1 October 2013, GJH gave further particulars of the ‘medical evidence’ referred to. He deposes that after his general practitioner’s death in ‘2008 or 2009’, he collected all his medical records in original form from the doctor’s surgery and stored them in briefcase 1. He says that no copies were made. He was advised that corresponding records at the Queen Elizabeth Hospital, about which he enquired after the theft, have been destroyed.[3] R v H, GJ [2014] SADC 20, [82]. In his affidavit sworn on 2 October 2013, GJH deposed that after entry of ‘nolle prosequi’ in 1989, he retained all the documents in his possession until about 1999 when he threw the material out. GJH described that material as follows:[4]3.… It included notes I made on statements, an extremely detailed statement taken by Mr Redford over a series of appointments and a tape of a conversation between [SH], [DC] and [SC].4.There were other documents but I cannot remember them in detail at this stage. They included letters from my lawyers setting out and confirming the instructions that I had given them at the time. I also have a recollection that there was a signed statement from [DC] provided to my lawyers supporting my denial of the allegations.5.The tape contained a statement to the effect that “nothing ever happened to me” by [SC] in the context of allegations that were being made about me at that time.6.I kept this material until sometime in 1998 or 1999. I was cleaning out my filing cabinet at the time and I thought that I would have no further use for that material.[4] R v H, GJ [2014] SADC 20, [83].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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