R v HEADING

[2011] SASCFC 107

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HEADING

[2011] SASCFC 107

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice David and The Honourable Justice Stanley)

14 October 2011

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

Appellant charged with two counts of unlawful sexual intercourse - trial by jury - appellant convicted on both counts - appeal against conviction - whether evidence given by the complainant at trial was prejudicial to the appellant and caused a miscarriage of justice - whether trial judge should have declared a mistrial - whether trial judge's directions were adequate - whether miscarriage of justice.

Held:  appeal allowed - appellant suffered impermissible prejudice by reason of admission of evidence - prejudice could not be rectified by directions - trial judge's directions were inadequate in any event - the only appropriate action to cure prejudice was a mistrial - appeal allowed - convictions quashed - retrial ordered.

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE

Application for permission to appeal on a particular ground - the verdicts were unreasonable or against the weight of evidence - appellant criticised inconsistencies in the complainant's evidence - open to the jury to prefer the complainant's evidence where inconsistent with other evidence - not sufficient to demonstrate a verdict is unreasonable - ground is not reasonably arguable - permission to appeal on this ground is refused.

Criminal Law Consolidation Act 1935 (SA) s 49(3), s 352, s 353, s 353(1); Evidence Act 1929 (SA) s 71A(4), s 34M, referred to.
Nudd v The Queen (2006) 80 ALJR 614; Davies & Cody v The King (1937) 57 CLR 170; Weiss v The Queen (2005) 224 CLR 300; Cesan v The Queen (2008) 236 CLR 358, discussed.
R v Weetra (2004) 236 LSJS 328; R v Shueard (1972) 4 SASR 36; M v The Queen (1994) 181 CLR 487, considered.

R v HEADING
[2011] SASCFC 107

Court of Criminal Appeal:  Sulan, David and Stanley JJ

1. SULAN J:             I would allow the appeal.  I agree with the reasons of Stanley J and the orders that he proposes.

2. DAVID J:              I would allow the appeal.  I agree with the reasons of Stanley J and the orders he proposes.

   STANLEY J:

   Background

3. Following a trial before a judge and jury in the District Court, the appellant was convicted on two counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA).

4. The appellant appeals against conviction.

5. Both counts concern the same complainant. 

6. The complainant did not disclose the alleged offending for some 23 years or more.

7. In relation to count 1 the appellant was alleged to have committed fellatio on the complainant between 1 January 1978 and 31 December 1978 at Mitcham.  During the course of the trial the particulars were amended to extend the end date from 31 December 1978 to 31 December 1979.  As a result, the allegation was that the offence was alleged to have occurred when the complainant was somewhere in the range of 12 to 14 years of age. 

8. The appellant’s defence to the charge was that intercourse did occur by way of fellatio but the complainant was at least 16 years old at the time and he reasonably believed the complainant was at least 17 years old.  The appellant also denied the time period alleged in the particulars.  The prosecution case was that count 1 occurred at the appellant’s address at a unit at Waverley Street.  The appellant denied that the complainant ever visited that address. 

9. The jury were directed that unless they found that this act occurred at Waverley Street, then the appellant was entitled to an acquittal. 

10. The appellant was convicted by majority verdict on count 1.

11. Count 2 concerned an act of anal intercourse which was alleged to have occurred at the appellant’s subsequent place of residence at Princes Road, Mitcham, between 1 January 1978 and 10 May 1980.  These dates were amended at trial to extend the end date to 31 December 1980.  As a result the allegation was that the offence was alleged to have occurred when the complainant was somewhere in the range of 12 to 15 years of age.

12. The appellant’s defence to this charge was that anal intercourse had not occurred as alleged, but he admitted that an act of fellatio had occurred between the appellant and the complainant at the Princes Road address at a time when the complainant was at least 17 years old or the appellant had a reasonable basis to think this was the case.

13. The appellant was convicted by majority verdict on count 2.

14. At trial the appellant conducted his defence on the basis that the issue to be determined was not whether sex occurred between the appellant and the complainant, but when it occurred.  In other words, the issue was the age of the complainant when the appellant admitted to having sex with him.

15. During the course of giving his evidence the complainant told the court that some time around 2003 or 2004 he first mentioned, to his then partner, matters concerning the events that resulted in the charges laid against the appellant.  The complainant’s partner at the time was working for the Inquiry into Children in State Care conducted by the Hon. E. P. Mullighan QC (“the Mullighan Inquiry”).  She told the complainant that in her work with the Mullighan Inquiry, similar names to those he had referred to in his conversation with her, had been mentioned.  Further, the complainant told the court that he had given evidence to the Mullighan Inquiry.  This evidence concerned his complaints about the conduct of the appellant which was the subject of the charges before the court.

16. In addition, the complainant gave evidence that after giving evidence to the Mullighan Inquiry he went to the police and provided a statement in relation to these matters some time around July 2006.

17. The Director of Public Prosecutions’ (the DPP) case in relation to count 1 alleged that the appellant had taken the complainant to his unit at Waverley Street, Mitcham.  There, they watched television on the couch while drinking beer provided by the appellant.  After some time the appellant extracted the complainant’s penis from his pants and performed fellatio on him.  At the same time the appellant extracted his penis from his own pants and masturbated.

18. The DPP case in relation to count 2 alleged that the appellant had taken the complainant, a person L,[1] and a man I refer to as Mr W on an outing. This involved a visit to the Norwood Bowls Centre followed by dinner and a visit to the Mars Bar. After this, the party repaired to the appellant’s residence at Princes Road, Mitcham. There the complainant consumed alcoholic beverages and smoked marijuana which were provided by the appellant.

    [1] Name suppressed pursuant to s 71A(4) of the Evidence Act 1929 (SA) as L was a child at the relevant time.

19. Following this it was alleged the appellant committed mutual acts of fellatio with L in the presence of the complainant and Mr W.  At the same time Mr W was alleged to have fellated the complainant.  Mr W was alleged to have left the residence shortly thereafter with the complainant.  The complainant told the court that Mr W caught a bus, following which the complainant returned to the appellant’s residence.  Upon his return he alleged that the appellant directed him to join him and L in the appellant’s bed.  L was apparently asleep in the bed.  The complainant did so.  The second count of unlawful anal intercourse is alleged to have then occurred.  The next morning the complainant alleged that someone called Paul arrived at the appellant’s house.  The complainant alleges Paul had sex with the appellant shortly thereafter. 

20. It was the complainant’s evidence that L was of a similar age to himself at that time.[2]  He came to believe that L was a “ward of the State… a runaway”.[3]  His evidence in relation to Paul was that he was a “kid”.[4]

    [2]    T45.5-6.

    [3]    T47.11-14.

    [4]    T57.13.

    The grounds of appeal

21. Permission to appeal to the Full Court pursuant to s 352 of the Criminal Law Consolidation Act 1935 (SA) was granted in this matter by a judge of this Court. His Honour referred to the Full Court the question of whether permission to appeal should be granted in relation to the following ground:

    The verdicts were unreasonable or against the weight of the evidence. 

22. The Court received written submissions in relation to this application.  Having considered those submissions, I would refuse permission. 

23. The ground in respect of which permission is sought concerns criticisms of the complainant’s evidence regarding details of his recollection of incidental details of places and events pertinent to the two occasions forming the subject matter of counts 1 and 2.  In my view, the alleged inconsistencies did not in fact exist or were inconsequential in the circumstances of the case.   The jury were entitled to prefer the complainant’s evidence where it was inconsistent with other evidence.  The mere fact that evidence may be open to criticism is insufficient to demonstrate that a verdict is unreasonable or that it cannot be supported by the evidence.[5]

    [5]   R v Weetra (2004) 236 LSJS 328 at [28]; R v Shueard (1972) 4 SASR 36 at 39; M v The Queen (1994) 181 CLR 487 at 493.

24. In my view, this ground is not reasonably arguable.  I would refuse permission to appeal on this ground.

25. The appellant argued a number of grounds of appeal.  One of these grounds concerned a miscarriage of justice which the appellant submitted resulted from the admission of certain evidence given by the complainant at trial.  In the end result, I am of the opinion that the appeal should be allowed on this ground, and, accordingly, it is unnecessary to address the other grounds of appeal argued by the appellant. 

    The impugned evidence and the trial judge’s direction

26. At trial the complainant gave the following evidence-in-chief:[6]

    [6]    T62.12-62.3.

    Q.     Did you eventually at some stage, as an adult, tell someone about what had happened to you.

    A.     I did.

    Q.     Who did you tell and about when did that happen.

    A.     That was my partner at the time and I related that to her around about 2003-4, somewhere there.

    Q.     What was her name.

    A.     Her name was Gabrielle.

    Q.     Did you go into detail in describing to her what had happened or did you just tell her in general terms about something that had happened to you.

    A.     I didn't go into too much detail at the time but, basically, we were both sharing elements of our past, if you like and, you know, she had been subjected to a vicious rape when she was a young person and I was telling her about what happened to me as a young person.

    Q.     Okay, so she was the first person you told.

    A.     Correct.

    Q.     Did you, sometime after then, decide eventually to go to the police.

    A.     No, not directly to the police. What was happening at the time was the Mullighan commission into children in State care had been established and my partner at the time was actually working for the commission and I had told her some names in our previous conversation and, in her capacity there, she noticed the similar names coming up.

    Q.      Did you eventually give some evidence at the commission -

    OBJECTION: MS SPENCE OBJECTS

27. Following this objection, counsel for the appellant applied to the learned trial judge for a mistrial, the basis of the application being that the complainant had given prejudicial evidence in relation to the appellant and the Mullighan Inquiry.  Counsel complained to the learned trial judge that the evidence set out above, in combination with the complainant’s evidence that L was about his age, permitted an inference to be drawn that the Mullighan Inquiry had heard evidence of the appellant abusing another child quite separately from the charges before the jury.  Counsel complained that the evidence of the Mullighan Inquiry tainted the appellant irreparably in the eyes of the jury.  

28. It was evident that the last answer given by the complainant was not evidence counsel for the DPP had intended to lead.  Nonetheless, counsel for the DPP opposed the jury being discharged and submitted the difficulty could be addressed by an appropriate direction.

29. While the basis upon which the learned trial judge rejected the application to discharge the jury is not entirely clear from the transcript, that is what occurred.  Instead, the learned trial judge gave a direction to the jury after the complainant gave further brief evidence in answer to the question to which objection had been taken.  That was a direction that had been agreed with counsel beforehand.  It was in the following terms:[7]

    Just before we resume with [the complainant’s] evidence there is something I wanted to say about a small part of the evidence that was given yesterday. The evidence of [the complainant] as to his appearance before the Mullighan Inquiry is not evidence in this matter. That inquiry, as you may know, was set up simply to hear allegations of abuse, including sexual abuse, and did not determine guilt or innocence. All it did was refer complaints off and they were investigated. The two charges before this court must be decided on the evidence that you receive, that you see and hear in this court. I'll just remind you of the evidence of [the complainant] on that topic yesterday. He was asked:

    Q. At the Mullighan Inquiry did you give information about the activities that happened between you and the accused, Mr Heading.’

    A.Correct, yes.

    Q.Was it sometime after that that you went to the police and provided a statement.

    A.Correct, yes.

    So that is simply an example of how the relevant authority commenced the investigation, the relevant authority in this case being the police. Thank you.

    [7]    T76.16-38.

30. The learned trial judge returned to this topic in the course of his summing up.  He directed the jury as follows:

    I want to say something about the way in which this matter came to Court.  As you know it was a very long period of time between when the first sexual offence is said to have occurred, that is 1978 or 1979, and the time at which the complainant, Mr …, made a report to anyone else, including police.  Mr … told you that the first time he mentioned this matter was during discussion with his then partner who told him about an experience she had undergone and he then told her something about his experiences.  You will recall that he told the Mullighan Inquiry about what he says happened with Mr Heading.  I remind you that that was merely a forum for the making of allegations, and no findings were or could be made by that inquiry. 

    The evidence of the initial discussion and of the allegations are statements made out of Court and are not evidence of the truth of what was reported.  That evidence is not before you to demonstrate the truth of what was reported, and you are to have regard to the complainant’s evidence given to Court for that purpose.  That evidence, as I have said, is before you to inform you of the way in which the allegations came to light.

31. On appeal, counsel for the DPP submitted that there was no error on the part of the learned trial judge in the directions he gave to the jury which were given with the approval of counsel for the appellant at trial.  In any event, counsel for the DPP submitted that even if the judge’s directions were wrong in law, as no substantial miscarriage of justice arose, the proviso should be applied and the appeal dismissed.

32. At issue in the trial was whether the appellant had sex with the complainant at a time when the complainant was under age or was obviously under age.  It was crucial that in reaching its verdict the jury decide the matter solely on evidence relevant to the conduct alleged against the appellant.

    Miscarriage of justice

33. In Nudd v The Queen[8] Gleeson CJ said there are two aspects to the concept of justice, and miscarriage of justice: outcome and process.[9]  Further, his Honour observed:[10]

    The concept of miscarriage of justice is as wide as the potential for error.  Indeed it is wider; for not all miscarriages involve error.  Process is related to outcome, in that the object of due process is to secure a just result.  Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose.  An unjust conviction is one form of miscarriage.  Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just.  Another is a failure of process which departs from the essential requirements of a fair trial.

    [8] (2006) 80 ALJR 614.

    [9] (2006) 80 ALJR 614 at 617 [3].

    [10] (2006) 80 ALJR 614 at 618 [7].

34. Addressing the topic of due process, the High Court in Davies & Cody v The King said a court:[11]

    … will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court’s view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.

    [11] (1937) 57 CLR 170 at 180.

    Has a miscarriage of justice occurred?

35. The principal issue at the trial of the appellant on two counts of unlawful sexual intercourse was when sex had taken place between the appellant and the complainant, or, in other words, how old was the complainant at the time the appellant conceded he had sex with him. 

36. In this context, the evidence the jury heard from the complainant that his partner, who was working for the Mullighan Inquiry, had noticed names before the inquiry similar to the names the complainant had mentioned to her in discussions about his sexual experiences with the appellant, and the involvement of L, was irrelevant, inadmissible and prejudicial.

37. That evidence[12] was irrelevant because it could not have been admitted on any view of the proper application of s 34M of the Evidence Act 1929 (SA). It was not evidence of a complaint. It was prejudicial because by the time of the trial, in July 2011, the work of the Mullighan Inquiry into the sexual abuse of children in State care was a matter of public notoriety. It was the subject of widespread reporting in the media throughout the State of South Australia.[13]

    [12]  That the complainant’s partner had noticed names coming before the Mullighan Inquiry similar to the names mentioned by the complainant in the context of his sexual encounters with the appellant.

    [13]   The announcement of the establishment of the inquiry was made in July 2004.  Interim reports were released in May 2005 and October 2005.  The final report was released in April 2008.  All of these matters were extensively reported.

38. In my view it was reasonably open to the jury to infer from the impugned evidence[14] that the appellant had been the subject of evidence before the Mullighan Inquiry in the context of allegations of the sexual abuse of children in State care.

    [14]  That the complainant’s partner had noticed names coming before the Mullighan Inquiry similar to the names mentioned by the complainant in the context of his sexual encounters with the appellant.

1. On appeal, counsel for the DPP conceded that such an interpretation was open in relation to this evidence.  In my view that concession was properly made.  That inference, in the context of the principal issue at trial, was toxic.  It exposed the appellant to the serious risk that jurors, in evaluating the evidence against him in relation to the counts with which he was charged, would be influenced in determining his guilt by the suspicion that he had been the subject of adverse reference before the Mullighan Inquiry.  Where the issue at trial was the age of the complainant at the time the appellant had sex with him, the suspicion that the appellant had been mentioned in evidence before the Mullighan Inquiry, of which a principal term of reference was to inquire into allegations of sexual abuse of children in State care, gave rise to a grave risk that a juror’s mind would be prejudiced in determining the charges in respect of which the appellant was being tried.

   The trial judge’s directions and s 353 of the Criminal Law Consolidation Act 1935 (SA)

2. Counsel for the DPP, on appeal, submitted that the admission of the evidence did not result in a miscarriage of justice on the basis that if the evidence admitted was irrelevant and prejudicial, it was adequately dealt with by the learned trial judge’s direction and, in any event, the proviso in s 353(1) of the Criminal Law Consolidation Act 1935 (SA) applied,[15] as no substantial miscarriage of justice had actually occurred.

   [15]   Criminal Law Consolidation Act 1935 (SA) s 353(1) provides:

   (1)The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

3. I do not accept that submission.

4. In my view, the evidence of the terms of the discussion between the complainant and his then partner concerning names which had come before the Mullighan Inquiry was irrelevant and prejudicial for the reasons set out above.  Further, in my view, the directions given by the learned trial judge were inadequate to address the prejudice suffered by the appellant resulting from the admission of that evidence.  The directions did not directly address that evidence.  Rather, the instructions to the jury were directed to the subsequent evidence of the complainant that he had given evidence to the Mullighan Inquiry.  The directions failed to focus on the earlier evidence concerning the statements made by the complainant’s then partner that she had heard similar names referred to in the Mullighan Inquiry as those mentioned by the complainant as having been involved in the events which were subsequently the subject matter of the charges before the court.  At the very least, the jury should have been directed to disregard totally that evidence.  That was the very least required to redress the prejudice suffered by the appellant resulting from the admission of that evidence.  In any event, I remain in considerable doubt as to whether any direction could have been adequate to cure the prejudice suffered by the appellant from the admission of that evidence. 

5. In Weiss v The Queen,[16] the High Court had to consider a case involving the admission of irrelevant and prejudicial evidence.  In that context the court in Weiss defined the task of criminal appeal courts applying the proviso.  Weiss is authority for the proposition that the question whether an appellant may have lost a fair chance of acquittal is one to be considered under the proviso.  The court is required to give consideration to the whole of the record of the trial to reach an independent conclusion on whether the appellant was guilty beyond reasonable doubt of the offence on which the impugned verdict had been reached.  Nonetheless, there are circumstances where the admission of prejudicial evidence occurs in circumstances where the prejudicial effect would probably not be overcome by any direction on the part of the trial judge.  In Cesan v The Queen,[17] French CJ considered the effect of Weiss in the context of an allegation of a failure of process in a criminal trial.  He said:[18]

   There may be cases … in which there is a process failure of such significance that, whatever the apparent weight of the evidence against the accused person, it cannot be said that there has not been a substantial miscarriage of justice.  That may be because the process failure has deprived the appeal court of the capacity to assess whether the appellant may have lost a fair chance of an acquittal.

   [16] (2005) 224 CLR 300.

   [17] (2008) 236 CLR 358.

   [18] (2008) 236 CLR 358 at 383-384 [81].

6. In Nudd Gleeson CJ said that there may be circumstances:[19]

   … in which a departure from the requirements of a fair trial according to law is such that an appellate court will identify what occurred as a miscarriage of justice, without undertaking an assessment of the strength of the prosecution case.  If there has been a failure to observe the conditions which are essential to a satisfactory trial and, as a result, it appears unjust or unsafe to allow a conviction to stand, then the appeal will be allowed.

   [19] (2006) 80 ALJR 614 at 618 [6].

7. In my view this is such a case.  This Court is left in a position where it cannot be certain the jury’s deliberations in arriving at verdicts of guilty on both counts were not infected by the irrelevant and prejudicial evidence concerning the Mullighan Inquiry.  It could not be said that no substantial miscarriage of justice actually occurred.  In my view, the admission of the evidence which was irrelevant and prejudicial, and the absence of a satisfactory direction to the jury from the learned trial judge to disregard that particular aspect of the evidence concerning the Mullighan Inquiry, renders it unsafe and unjust to allow the convictions to stand. 

8. In my view it is not to the point that the direction that was given by the learned trial judge to the jury in relation to the evidence concerning the Mullighan Inquiry was given with the acquiescence, if not the agreement, of the appellant’s counsel at trial.  That direction failed to touch upon the particular aspect of the evidence concerning the Mullighan Inquiry, namely, the reference to the complainant’s partner telling him that during the course of her work with the Mullighan Inquiry she had come across names similar to the names he had mentioned to her in describing his experiences which formed the basis of the charges for which the appellant was on trial.  The issue is not why a trial judge failed to properly instruct a jury, but whether that constituted a miscarriage of justice such as to render the convictions unsafe or unsound.[20]

   [20]   Judd v The Queen (2006) 80 ALJR 614 at 618 [8].

9. For the reasons set out above I consider that there was a substantial miscarriage of justice by reason of the admission of the impugned evidence and the failure properly to direct the jury in relation to that evidence. 

   Conclusion

10. I would allow the appeal and remit the proceedings for retrial in the District Court.