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 appellant’s partner.
The appellant appeals on two grounds. First, that 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 (CN) and the appellant was put before the Court. Second, that the Judge erred by reversing the onus of proof.
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 14
The 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 14
The 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 14
The 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 Assault
During 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 Assault
The 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.
In addition to the charged acts listed above, CN also gave evidence about a number of uncharged incidents of sexual activity between herself and the appellant which occurred when she was in grades five and six. These other incidents of sexual activity were described by CN as follows.
CN said that, while the family were living at the house in Kurralta Park, passionate kissing between herself and the appellant occurred almost daily in either the appellant’s bedroom, the lounge, the dining room, or in the bus in the backyard. CN said that passionate kissing also occurred on more than one occasion whilst the family were living at the Blanchetown house. She said these incidents occurred in the appellant’s Suzuki while she and the appellant were out collecting firewood.
CN further gave evidence of occasions when, while they were home alone together, the appellant would wear a purple sheet like a cape and walk around naked. She said that, on other occasions, he also wore a black dressing gown, undone, with no clothing underneath. CN said the appellant touched his penis in front of her at Kurralta Park and walked around naked with either the sheet or the dressing gown at the Blanchetown house.
CN also gave evidence of occasions when CN and the appellant had what she referred to as “big hugs” at both Kurralta Park and Blanchetown. Sometimes the appellant was clothed, sometimes unclothed. During these episodes, CN sat on top of him, facing him with her vagina touching his penis and the appellant held her hips and got her to move up and down along his penis. CN continued to do this until the appellant told her he was “close” and then she got off him and he masturbated until he ejaculated.
Finally, CN gave evidence that the appellant, on occasions, kissed her on the breasts and once on the vagina.
The appellant was interviewed by police on 31 August 2014. In the interview, he denied the allegations.
The appellant gave evidence at the first trial. He elected not to give evidence at the retrial. The prosecution tendered the appellant’s record of interview and transcript of the appellant’s evidence from the first trial as part of its case on the retrial.
On the retrial, the appellant called evidence from his de facto partner (CN’s mother), CN’s siblings, and his mother.
The defence case was that the appellant did not commit any of the alleged sexual and violent acts upon CN, and that CN’s evidence on each of the charged counts was inherently unlikely and contradicted by other evidence called by the appellant.
Ground 2 – Did the trial Judge err in law by reversing the onus of proof?
Counsel for the appellant decided to argue ground 2 first, no doubt because he had received permission to appeal on that ground.
The thrust of the appellant’s complaint in respect of ground 2 arises out of a particular passage of the trial Judge’s reasons where her Honour said (at [266]):
The accused’s denials in his record of interview, and in his evidence at the previous trial, and the evidence of [CN’s mother] and Hilda Helps did not cause me any doubt as to the truthfulness and reliability of CN’s evidence on this charge. I am satisfied beyond reasonable doubt on the whole of the evidence that the accused placed his penis inside CN’s mouth.
The appellant complains that the first sentence in this passage, which has an equivalent in her Honour’s analysis of every other count, is suggestive of error.
The appellant submitted that her Honour’s statement of the position in the next sentence, which is unimpeachable, does not do away with the apprehension that an incorrection approach has been taken. It is said that there are four other aspects of the Judge’s reasons which demonstrate that she reversed the onus of proof.
The appellant complained that nowhere in the direction as a whole, did the trial Judge explicitly say, “In order for me to convict the appellant I must reject the evidence of the appellant and his denials in the police interview beyond reasonable doubt”. Furthermore, nowhere in the Judge’s reasons did she reject beyond reasonable doubt what the appellant said in the police interview. Nowhere in the reasons did she reject what the appellant said in evidence at the previous trial beyond reasonable doubt.
That, in the appellant’s submission, is to be contrasted with the Judge’s reasoning in respect of the witnesses called for the defence, whose evidence she did explicitly reject beyond reasonable doubt.
The appellant submits that, having failed to reject the out-of-court statements beyond reasonable doubt, the trial Judge could not proceed to convict the appellant. The appellant argues that the difference in treatment of the evidence of the appellant’s out-of-court statements, compared with her treatment of the oral evidence before her, leads to the inescapable conclusion that she applied a different burden of proof to the two different bodies of evidence. Therein lies the error.
It is instructive to consider the direction which was impugned in R v Corrigan, and which was held not to be in error: [3]
[3] (1998) 74 SASR 454, 463.
The judge said (summing up p 2):
"This accused elected not to give evidence in this trial. That was his legal right. No inference about his guilt is to be drawn against him because he did not give evidence. You must decide the case only on the evidence which has been placed before you in this trial. You have not heard evidence from the accused in this trial in the same way as you heard evidence from the witnesses who were called in this trial as witnesses who got into the witness box and whom you actually saw and heard give their evidence.
However, as part of the evidence you do have the record of interview between Detective Frick and the accused. The accused did not have to answer the questions put to him. But he chose to do so. Those answers were not given by him on oath.
You also had as part of the evidence in this trial, that which was read out which the accused gave as evidence in chief and in cross-examination at a previous hearing in January this year. That evidence was given in another hearing upon oath, but you did not see the accused give it. In the record of interview, and through the evidence in the previous hearing which was read out to you, you have heard what the accused had to say about the events in question.
It is for you to give such weight to his statements in the record of interview and in his evidence in the previous trial as you see fit, but bearing in mind that it is not evidence given to you on oath in your presence.”
Doyle CJ, with whom Millhouse and Nyland JJ agreed, then recorded the appellant’s argument:
The appellant complains that the judge should have explained to the jury that the evidence read to them was given on oath, and attracted the same sanction as would have been attracted by evidence given at the trial. Complaint was made that the direction also implied that the evidence read had a lesser status that other evidence.
Doyle CJ said that the passage was the appropriate jury direction in relation to a transcript of evidence from a previous trial:
I disagree. In my opinion the judge's direction was appropriate. It was correct to tell the jury that in considering what was in the record of interview, and the evidence from the previous trial, the jury should bear in mind that they had not seen the appellant give evidence, and had not had the chance to assess him in the same way as they could assess witnesses who gave evidence before them. The statement made by the judge in the last of the paragraphs set out is a statement that has been made in a number of such cases in this State. In my opinion it was right to tell the jury that they should give the evidence such weight as they saw fit, bearing in mind the manner in which it came before them: see R v Machin (No 2) (1997) 69 SASR 403 at 405.
It follows that, in any jury trial, a judge is entitled to point out to the jury that certain evidence was not taken on oath before them, was not cross-examined upon, and that they can give it such weight as they see fit. The same applies to a trial by judge alone.
Before evaluating the appellant’s complaint, and determining whether the trial Judge did approach the two bodies of evidence differently, it is helpful to look carefully at the whole of the Judge’s approach to the evidence.
It is plain, from the directions which her Honour gave herself at [36-39], that she understood that if she considered there remained a reasonable doubt about the appellant’s guilt in respect of any of the counts, then the Judge could not convict on that count:
[36]The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving the charges lies wholly upon the prosecution. The accused is not obliged to prove anything.
[37]Nothing short of proof beyond reasonable doubt will suffice. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of any offence, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of that charge. In these reasons, if I use the words ‘proved’, ‘established’, or ‘satisfied’, I mean to a standard of beyond reasonable doubt. If I am satisfied that there is an explanation consistent with the innocence of the accused, or I am unsure of where the truth lies, then I must find that charge has not been proven beyond reasonable doubt.
[38]In this trial, the accused elected not to give evidence. No adverse inference can be drawn against the accused for his legitimate election not to give evidence. It is for the prosecution to prove beyond reasonable doubt the case against the accused.
[39]The accused gave evidence at a previous trial on 22 and 23 February 2016. A transcript of that evidence was tendered to the Court. The accused’s previous evidence is to be assessed like the evidence of any other witness in this trial. However, it is not for the accused to prove his innocence but for the prosecution to prove beyond reasonable doubt his guilt. Even if I were to reject the accused’s previous evidence as a reasonable possibility, I still need to be satisfied beyond reasonable doubt of the prosecution case before the accused could be convicted of any offence.
[Footnotes omitted]
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.

I do not accept the appellant’s submission.
The argument of the appellant appears to be predicated on an assumption that any denial by the appellant, whether in court or out of it, was of equal weight and had to be specifically rejected before the prosecution could prove the appellant’s guilt beyond reasonable doubt.
The police interview and the appellant’s evidence in the previous trial were tendered by the prosecution primarily for the admissions they contained. Although the Judge was entitled to use the exculpatory statements in that material to assist the appellant, she was not obliged to. She was entitled to give to all the statements such weight as she chose and to discriminate between the various statements within those bodies of evidence.
Before finding the appellant guilty of each count, what the Judge needed to be satisfied of was whether, on the whole of the evidence relevant to that count, the prosecution had proved the elements of the offence beyond reasonable doubt.
It is apparent from the Judge’s reasons read as a whole, that she chose not to give weight to the exculpatory statements made out of court by the appellant and in the earlier trial. At one part of her reasons, her Honour went into specific criticisms of some of the appellant’s prior statements. It is plain that she considered all of them because she set out the thrust of the appellant’s statements, both when dealing with each specific charge and in the context of dealing with the defence case as a whole.
In addition, it is important to remember, as the Chief Justice pointed out in R v Rendell,[4] that reasons for verdict are not given in real time. The initial paragraph in which the Judge announced her findings in respect of each count, can be viewed as a heading, which the Judge then moved to support in greater detail. It should not be assumed that the order in which discussion and conclusions appear in the reasons for verdict represents the route by which the Judge arrived at the conclusion.
[4] (2018) 131 SASR 201.
In any event, the sentence which immediately followed the impugned statement in each paragraph, concluded with a statement by the Judge that she was satisfied beyond reasonable doubt, on the whole of the evidence, that the appellant was guilty of that particular count. This tends to show that the matter was approached by the Judge globally rather than in a sequential manner, as submitted by the appellant.
I have considered how else the Judge might have phrased her conclusion. Perhaps she might have said, “Notwithstanding the defence case, I am satisfied beyond reasonable doubt…” However, ultimately, this is a semantic difference only. It is my view that the Judge made no error of law in expressing herself in the way she did.
I consider 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.
I would dismiss this ground of appeal.
Ground 1 – Failure to take into account the different ways in which the evidence of the complainant and the appellant was adduced.
The appellant requires permission to appeal on this ground. As drafted, it is a complaint that the Judge failed to direct herself with regard to the differences in manner by which the earlier evidence of CN and the appellant was presented to the Court.
In argument, counsel for the appellant departed somewhat from the ground. He acknowledged that the prior evidence of CN came before the Court via the statutory mechanisms set out in s 13D of the Evidence Act 1929 (SA); whereas the appellant’s previous evidence was tendered by the prosecution relying on common law principles. The appellant’s argument on appeal, as I understood it, became that the Judge erred in failing to give herself a warning that she should not depreciate the evidence of the appellant at the previous trial too readily, since she had not had the benefit of seeing his demeanour in delivering it. Counsel for the appellant did not put forward any authority for the proposition that such a direction was required.
In fact, the Judge did give herself a relevant direction. At [39], she said:
A transcript of that evidence was tendered to the Court. The accused’s previous evidence is to be assessed like the evidence of any other witness in this trial.
This is a direction regularly given as a reminder that the trier of fact should not depreciate an accused’s evidence merely because it is given by a man under suspicion or charge. I do not understand her Honour to be doing anything other than giving herself a parallel direction.
The appellant submits that, when evidence of an accused from an earlier trial is read, the authorities support a requirement that the judge bring to the attention of the jury the fact that it must bear in mind the manner in which evidence is presented to it. This is because the jury might be slower to accept apparently compelling evidence when they have not seen it, but equally, might be slower to reject apparently unpersuasive evidence without having observed the demeanour that accompanied it.
It is apparent from the sentences which precede and succeed the direction set out above, that the Judge properly understood the onus and burden of proof was upon the prosecution and that the mere rejection of the appellant’s prior evidence would not inevitably lead to convictions. I do not consider that her Honour was required to give any further direction. In my view, this ground is unarguable and I would refuse permission.
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.