R v H, ML

Case [2006] SASC 240

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v H, ML

[2006] SASC 240

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice Vanstone and The Honourable Justice White)

18 August 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION

Appellant convicted by jury of two counts of unlawful sexual intercourse with a person under the age of 12 years - evidence led at trial disclosed an investigation by Victorian police into claims of similar offences in Victoria - no charges ever laid in Victoria - trial judge did not permit defence counsel to adduce evidence indicating that no charges were laid in Victoria - trial judge directed jury as to permissible use of uncharged acts said to have occurred in Victoria - trial judge directed jury not to specuate as to the outcome of the Victorian investigation - no prejudice to appellant resulted.

Whether defence case adequately put - whether inconsistencies in complainant's evidence sufficiently detailed - directions adequate.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

Appellant interviewed by police - appellant questioned as to complainant's possible motives for fabrication of allegations - these parts of interviews excluded from evidence by trial judge - whether interviews constituted "mixed statements" - whether interviews should have been admitted into evidence in their entirety - excluded portions of interview held to be inadmissible.

Evidence led of refusal by complainant to undergo medical examination - question by defence counsel as to possible findings on such examination queried by trial judge - potential significance of answers limited in any event - no prejudice to appellant - appeal dismissed.

Palmer v The Queen (1998) 193 CLR 1; Jack v Smail (1905) 2 CLR 684; Mule v The Queen (2005) 79 ALJR 1573; Spence v Demasi (1988) 48 SASR 536; R v Collie (2005) 91 SASR 339; R v Duncan (1981) 763 Cr App R 359; Callaghan v The Queen [1994] 2 Qd R 300; R v Pearce (1979) 69 Cr App R 365; R v Newsome (1980) 71 Cr App R 325, considered.

R v H, ML
[2006] SASC 240

Court of Criminal Appeal:  Nyland, Vanstone and White JJ

  1. NYLAND J:          I agree that the appeal should be dismissed for the reasons expressed by Vanstone J.

    VANSTONE J:

    Introduction

  2. The appellant was convicted after a trial by jury of two counts of unlawful sexual intercourse with a person under the age of 12 years committed upon his nine year old daughter in 1999.  He appeals against those convictions on grounds concerning rulings on admissibility and directions to the jury.

    Background

  3. On the prosecution case the offences were part of a long course of similar conduct by the appellant, starting when the complainant was about 7 seven years of…

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AGLC
R v H, ML [2006] SASC 240
Case
[2006] SASC 240
Decision Date

CaseChat Overview and Summary

The appellant was convicted by a jury of two counts of unlawful sexual intercourse with a person under the age of 12 years, specifically his nine-year-old daughter. He appeals against these convictions, raising issues concerning the admissibility of evidence and the directions given to the jury. The central issues in this case revolve around the admissibility of certain evidence and the adequacy of the jury directions. The appellant argues that the trial judge should have allowed evidence that no charges were laid in Victoria, where similar offences were alleged to have occurred, and that the judge's directions to the jury were inadequate. Additionally, the appellant challenges the exclusion of parts of his police interview and the refusal to allow cross-examination on the significance of the complainant's refusal to undergo a medical examination.

The court examined the admissibility of evidence concerning the Victorian investigation and the direction given to the jury. The court found that the trial judge's decision not to permit evidence that no charges were laid in Victoria was not prejudicial to the appellant. The court held that the jury's direction to not speculate on the outcome of the Victorian investigation was sufficient and did not leave room for the jury to speculate that the appellant had been charged and convicted of Victorian offences. Furthermore, the court concluded that the exclusion of parts of the police interview and the refusal to allow further cross-examination on the significance of the complainant's refusal to undergo a medical examination did not prejudice the appellant. The court found that the directions given to the jury were adequate and that the potential significance of the complainant's refusal to undergo a medical examination was limited.

The appeal was dismissed by the court. The court found that none of the grounds of appeal were made out and that the trial judge's rulings on admissibility and directions to the jury were appropriate. The court upheld the convictions, and the appellant's appeal was unsuccessful.

Orders

Orders of the court

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Background

Background to the litigation

The appellant was convicted after a trial by jury of two counts of unlawful sexual intercourse with a person under the age of 12 years committed upon his nine year old daughter in 1999. He appeals against those convictions on grounds concerning rulings on admissibility and directions to the jury.Background On the prosecution case the offences were part of a long course of similar conduct by the appellant, starting when the complainant was about 7 seven years of age and finishing when she was 12 years. The child’s parents were separated from the time she was a baby. For the later part of that period the appellant lived in Drik Drik in Victoria and occasionally his daughter would visit him there. When the girl’s allegations came to light, in 2003, they included claims that sexual offences had been committed upon her not only in South Australia, but also in Drik Drik. As a result, police in both states conducted an investigation. Apparently the two investigations ran in a parallel manner. However, it seems that no charges were ever laid in Victoria. It was inevitable that the jury would understand that there had been an investigation in Victoria, because the prosecution wished to lead part of an interview which occurred between a Victorian police officer and the appellant. Upon the trial, that was relevant to uncharged acts which the prosecution was permitted to lead. Instruction to jury about fate of Victorian investigation Prior to the jury being empanelled, the Judge heard submissions as to how the fact of the Victorian investigation might be presented to the jury and in particular, to what extent, if any, it would learn of the result of the Victorian investigation. The Judge ruled that defence counsel would not be permitted to adduce evidence to the effect that no charges were ever laid in Victoria, holding that fact irrelevant. The Victorian allegations were referred to before the jury as “uncharged acts”. The appellant complains that he should have been allowed to elicit the fact that no charges were laid in Victoria. It is contended that the way in which the matter was left could have given rise to speculation that the appellant had been both charged and convicted of Victorian offences. That was particularly said to be a risk because of the time lag between the interviews by both Victorian and South Australian detectives in August 2003 and the trial in the Mount Gambier Circuit Court in March 2006. It is said that such a risk was further exacerbated by two references in the summing up to the Victorian “offences”. These complaints were particularised in the first three grounds of appeal. Leave was granted on only the second of those. However, since they are interrelated, I think it appropriate to grant leave on grounds 1 and 3 and to deal with the three grounds collectively. As I understand the contention put by Ms Powell QC for the appellant, it is not now suggested that the decision not to lay charges in Victoria was relevant to the jury’s task. Rather, the submission on appeal was that in the absence of the jury being told of the true position, it might impermissibly speculate in a way prejudicial to the appellant’s interests.

Evidence

Evidence Before The Court

This was a short trial in which the issues were clear. On my reading of the evidence the directions were adequate. I would refuse leave to appeal on this ground.Evidence of medical opinion disallowed The evidence disclosed that on 12 June 2003 the complainant saw her family doctor, Dr Mackle, in company with, and perhaps at the suggestion of, her mother. He was informed of the allegations against the appellant. Dr Mackle said in evidence that he asked but was refused the complainant’s permission to do a genital examination “to try and see if there was any evidence of the genital penetration in the young girl”. In cross-examination he said he explained to the complainant that an examination might provide evidence to support or refute her allegations. In re-examination he was asked to explain that further. He said he “supposed” that evidence of the loss of the “vaginal hymen” would suggest that penetration had occurred. He said that any evidence of anal damage would have informed him – he supposed – of sexual interference or activity. When re-examination concluded defence counsel sought and was granted leave to further cross-examine. The witness was then asked about whether he might have expected “residual injury” if there had been penetration of the complainant from about age six years onwards. He replied he would “imagine so” but could not give a qualified opinion, having not seen “the effects of child and sexual trauma”. The following question was then asked:Q.Whilst the loss of the hymen might not be conclusive of sexual activity, the fact that there was an intact hymen may be conclusive of no penetration, is that right, of the fact that there wasn’t penetration, is that correct.The trial judge queried the utility of the question inasmuch as vaginal penetration was not required in proof of vaginal intercourse. It does not appear from the transcript that the question was actually ruled upon, but there was no further evidence from the doctor. I consider that the question, if addressed to a properly qualified expert, was allowable. But I do not think that the ruling – assuming it was one – was of much moment in terms of prejudice to the appellant. It appears that the doctor was at the limits of his expertise in giving these answers. This Court has no way of knowing what answer would have been given in any event. Medical examinations of this type are notorious for their equivocality. In any event there was no right to further cross-examine after re-examination was concluded. The appellant points further to a passage in the summing up on the topic of the significance of the complainant declining the examination. His Honour said: Similarly, reference was made to the accused losing the possible chance of exoneration by [V] not consenting to an examination by Dr Mackle in June 2003, about six months after she stopped going to Drik Drik. You must decide whether you think this is so or whether, again, the evidence is equivocal, given the time which has passed since both the commencement of and the end of this alleged behaviour.His Honour reminded the jury of the doctor’s reticence about expressing an opinion. Then he said: Remember also what I said to you about what constitutes the first element of sexual intercourse at law. The slightest penetration is sufficient. There is no requirement for full penetration. Consider whether, in your experience, it is likely that slight penetration may leave telltale signs when the evidence is that there was no bleeding and no ongoing discomfort.

Decision

Reasons for decision

In my view the argument on this ground fails.Conclusion My conclusion is that leave should be granted on grounds 1 and 3 (Victorian investigation), but refused on ground 7 (concerning putting the defence case). I consider that none of the grounds of appeal is made out. I would dismiss the appeal. WHITE J: I agree with the orders proposed by Vanstone J. I also agree generally with her reasons. There is nothing which I wish to add.

Ratio Decidendi

Legal Principle Established

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