R v Helps - [2019] SASCFC 66

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HELPS
[2019] SASCFC 66
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Parker)
13 June 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Appeal against conviction.
After a trial by judge alone, the appellant was convicted of 3 counts of Unlawful Sexual Intercourse with a Person under 14, 4 counts of Indecent Assault, 1 count of Gross Indecency, 1 count of Unlawful Sexual Intercourse with a Person Under 17, and 1 count of Assault. All of the offences were committed against one child complainant.
The appellant appeals the convictions on two grounds: whether there was a miscarriage of justice occasioned by the Judge failing to direct herself with regard to, or failing to otherwise take into account, the difference in the manner by which certain evidence of both the complainant and the appellant was put before the court; whether the Judge erred by reversing the onus of proof.
Held, per Kelly J (Vanstone and Parker JJ agreeing), refusing permission on ground 1 and dismissing the appeal:
1. It is plain from the direction the trial Judge gave herself that she understood that, before convicting the appellant, she had to find that any account given by the appellant, whether in court of out of court, was not reasonably possibly true. This ground is unarguable and permission is refused (at [50-51]).
2. The Judge made no error of law in expressing herself in the way she did. It is plain from the Judge’s reasons that she well understood that, in order to be satisfied beyond reasonable doubt of the appellant’s guilt in respect of each charge, she had to reject beyond reasonable doubt any explanation proffered by the appellant. Plainly, that is what she did (at [42-43]).
Evidence Act 1921 (SA), referred to.
R v Corrigan (1998) 74 SASR 454; R v Rendell (2018) 131 SASR 201, applied.
R v H, CS [2016] SADC 23; R v Helps [2016] SASCFC 154; (2016) SASR 486, discussed.

R v HELPS
[2019] SASCFC 66
Court of Criminal Appeal: Vanstone, Kelly and Parker JJ

VANSTONE J: I agree with the orders proposed by Kelly J and with the reasons her Honour has prepared.
KELLY J:
Introduction
After a trial by judge alone, the appellant was convicted of three counts of Unlawful Sexual Intercourse with a Person Under 14, four counts of Indecent Assault, one count of Gross Indecency, one count of Unlawful Sexual Intercourse with a Person Under 17, and one count of Assault. All of the offences were committed against a child (CN) who is the daughter of the…

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 Helps

Details

AGLC: R v Helps [2019] SASCFC 66
Case: [2019] SASCFC 66
Decision Date: 13 June 2019

CaseChat Overview and Summary

The appeal concerned a retrial of the appellant, who had previously been convicted in 2016. Following an earlier appeal, all convictions were quashed and the matter remitted for retrial. At the retrial, the prosecution tendered an audio-visual recording of the complainant's evidence from the first trial, and the complainant also gave further oral evidence. The dispute before the Full Court of the Supreme Court of South Australia, constituted by Vanstone, Kelly, and Parker JJ, was whether the trial judge had erred in her directions to herself regarding the evidence and the onus of proof.

The legal issues before the court were whether the trial judge had misdirected herself concerning the standard of proof required for conviction, particularly in light of the complainant's evidence being the sole evidence supporting the charges. The appellant argued that the judge had effectively reversed the onus of proof by first accepting the complainant's account as credible and reliable, and then considering whether the defence evidence raised a doubt, rather than independently assessing all evidence to satisfy the prosecution's burden beyond reasonable doubt.

The court found that the trial judge had correctly understood and applied the onus and standard of proof. The judge's directions indicated an understanding that she had to be satisfied beyond reasonable doubt of the appellant's guilt, and that any account given by the appellant must not be reasonably possibly true. The court noted that the judge had carefully considered all evidence, including the appellant's statements and defence evidence, and had discriminated between the complainant's evidence and the defence case. The judge's detailed examination of the evidence, count by count, and her explicit reference to the appellant's denials and previous evidence, demonstrated that she had not reversed the onus of proof.

The Full Court dismissed the appeal, with Parker J agreeing with the reasons provided by Kelly J. Permission to appeal on the first ground was refused.

Orders

Orders of the court

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Background

Background to the litigation

A single Judge of this Court granted permission to appeal in respect of ground 2 and referred the first ground to this Court.Background The appellant was originally found guilty at a trial in 2016.[1] On appeal to this Court,[2] all the convictions were quashed and the matter was remitted to the District Court for a retrial. [1] R v H, CS [2016] SADC 23.[2] R v Helps [2016] SASCFC 154; (2016) SASR 486. At the retrial, without objection and pursuant to s 13D of the Evidence Act 1929 (SA), the prosecution as part of its case tendered an audio‑visual recording (together with transcript) of CN’s evidence taken at the first trial. CN also gave further oral evidence at the retrial. Permission to lead the further evidence on limited additional topics was granted by the Judge. In the first trial, CN gave evidence in respect of each of the 10 counts for which the appellant was convicted as follows:Count 1 – Unlawful Sexual Intercourse with a Person Under 14The appellant called CN into his bedroom where he was lying on the bed naked, pointed at his penis, which was under the sheet, and asked her to ‘kiss it’. CN kissed it through the sheet. The appellant moved the sheet, asked her to kiss it again and she did so for a couple of seconds. The appellant then asked CN to open her mouth and, when she did, he put his penis inside her mouth. Count 2 – Unlawful Sexual Intercourse with a Person Under 14The appellant had penile-vaginal sexual intercourse with CN on an octagonal table in the dining room at their house in Kurralta Park. This was the first occasion when the appellant had penile-vaginal intercourse with CN. At the time, she was 11 years old. Count 3 – Unlawful Sexual Intercourse with a Person Under 14The appellant had anal sexual intercourse with CN in a bus situated in the backyard at the Kurralta Park house. At the time, CN was either 11 or 12 years old. Count 4 – Indecent AssaultDuring a camping trip at Mannum, the appellant indecently assaulted CN by touching her on the vagina on the outside of her underwear while she was swimming in the river. CN was 11 or 12 at the time.Count 5 – Indecent AssaultThe appellant indecently assaulted CN on the day of her year seven graduation before a celebratory dinner, by rubbing his penis on her vagina at the Kurralta Park house. CN was 13 at the time.Count 6 – An Act of Gross Indecency The appellant touched his penis over his clothes in the presence of CN in the bathroom at the Kurralta Park house while CN was getting ready for school. CN was 13 or 14 at the time.Count 7 – Indecent Assault The appellant kissed CN with an open mouth in the garage of the Blanchetown house. CN was 14 or 15 at the time.Count 8 – Indecent Assault The appellant rubbed his penis against CN’s vagina while she was positioned on the bonnet of the appellant’s Suzuki car in the garage of the Blanchetown house. CN was 15 at the time.Count 9 – Unlawful Sexual Intercourse with a Person Under 17 The appellant had penile-vaginal sexual intercourse with CN in the appellant’s bedroom at the Blanchetown house when her mother was at work. CN was 14 or 15 at the time.Count 10 – Assault The appellant slapped CN on the face at a bus stop at Blanchetown because she wanted to wear a skirt. The appellant told CN she looked like a slut and slapped her face on each cheek.

Evidence

Evidence Before The Court

Later, in the context of considering CN’s evidence, her Honour gave herself the following direction:[42]There is no evidence independent of CN’s evidence to support any of the charged offences. Consequently, CN’s evidence must be carefully scrutinised before the Court can be satisfied beyond reasonable doubt of the truthfulness and accuracy of CN’s evidence, having particular regard to defence counsel’s criticisms of CN’s credibility and reliability, and taking into account the evidence called as part of the defence case contradicting features of CN’s account, the detail of which I outline below.[Emphasis added] Thereafter, her Honour went on to consider all of the evidence count by count. In respect of each count, the trial Judge specifically referred to the defence evidence led in respect of that count and to what the appellant had said in respect of the allegations in support of that particular count. Her Honour specifically, in each case, referred to what the appellant had said in his record of interview and what he had said in his evidence at the previous trial. Her Honour again returned to what the appellant had said in his police interview and in his evidence at the first trial when she came to discuss, in further detail, the defence case. It is evident that when dealing with the testimonial defence evidence before her in the retrial, as against the appellant’s out-of-court statements (the police interview and the appellant’s evidence on oath at the previous trial), that the Judge did discriminate. The Judge specifically rejected the oral evidence given in the defence case in respect of each count. She then referred to the appellant’s denials in the police interview, and to his evidence at the previous trial, stating that those did not cause her to have any doubt as to the truthfulness and reliability of CN’s evidence. Finally, she stated her conclusion that, on the whole of the evidence before her, she was satisfied beyond reasonable doubt of the appellant’s guilt. However, just because the Judge expressed her conclusion in that way, does not mean that she did not pay careful attention to everything which the appellant had said. It is evident from the Judge’s reasons as a whole, that she had careful regard to all of the evidence before her, irrespective of how it came before her, including what the appellant had previously said in respect of each and every allegation made against him. The appellant’s further argument in support of this ground is that, in expressing herself in the way she did in each of the impugned paragraphs, the Judge was in effect adopting a two-stage process – by first accepting the complainant’s account beyond reasonable doubt and then moving to consider whether anything emanating in the defence case had the effect of casting a doubt on the prosecution case. This, the appellant submits, combined with the fact that the trial Judge at no stage rejected the appellant’s interview and evidence from the first trial in unambiguous terms, demonstrates that the trial Judge in effect reversed the onus of proof. The appellant argues that the result of her Honour reasoning in that way is to effectively place a burden on the appellant to raise doubt about CN’s version, in circumstances where her Honour had already found CN to be credible and reliable.

Decision

Reasons for decision

It is plain from the directions which the trial Judge gave herself that she understood that, before convicting the appellant, she had to find that any account given by the appellant, whether in court or out of court, was not reasonably possibly true.Conclusion It is evident from the close and detailed examination which the Judge made of the evidence presented by both the prosecution and the defence, together with her clear and comprehensive directions of law which included directions as to the onus and standard of proof, that the Judge approached the verdicts in the correct manner. Neither of the complaints made by the appellant are made out. I would refuse permission to appeal on ground 1 and dismiss the appeal. PARKER J: I agree with the reasons of Kelly J and the orders she proposes.

Ratio Decidendi

Legal Principle Established

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