R v Hollsten

Case [2015] SASCFC 178

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HOLLSTEN

[2015] SASCFC 178

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Nicholson)

30 November 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT

CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS

CRIMINAL LAW - PROCEDURE - WITNESSES - CROSS-EXAMINATION - OTHER CASES

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE

The appellant was convicted by jury of one count of persistent sexual exploitation of a child, alleged to have occurred between 1963 and 1974 when the complainant, A, was between the ages of about 6 and 17 years old. A was the daughter of the appellant, and was born in 1957. She was 58 years old at trial in 2015.

A gave evidence of two complaints she made about the alleged offending: first to her first serious boyfriend, Mr Rushby in about 1975 when she was 18 years old; and secondly to her husband Mr Hall in about 1980 when she was 22 or 23 years old. Mr Rushby died before trial. The appellant did not object to evidence being given of the complaint to Rushby but submitted that the later conversation with Mr Hall was not admissible under 34M of the Evidence Act 1929.

A gave evidence that she gave the same low level of detail to both Mr Rushby and Mr Hall and that she did not tell Mr Hall anything more than she told Mr Rushby. Mr Hall gave detailed evidence about the complaint made to him by A: that the appellant fondled her in her room at night; that more sexual abuse happened which led to A becoming pregnant and having an abortion; and that she did not report the offending earlier as she wanted to protect her mother.

The prosecutor argued that: the evidence of Mr Hall disclosed more than a low level of detail; the jury might prefer the evidence of Mr Hall to the evidence of A and might find that the level of detail in the complaint to Mr Hall was greater than that given to Mr Rushby. The Judge admitted the evidence of both statements pursuant to s 34M.

Further evidence was given by A’s brother, who gave evidence of an argument he heard between his parents when he was about 12 years old, apparently related to his mother having found the appellant examining A’s vagina. The mother was not called because she was elderly and had dementia. A’s brother gave evidence that the appellant had explained that he was picking a grass seed out of her vagina; in cross-examination, defence counsel suggested to him that A had been taken to the doctor subsequent to this incident, a suggestion which was…

Continue reading R v Hollsten

Sign in free to access the full text

Details
AGLC
R v Hollsten [2015] SASCFC 178
Case
[2015] SASCFC 178
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against a conviction for sexual offences. The appellant, Mr Hollsten, argued that a miscarriage of justice had occurred due to the admission of certain evidence relating to complaints made by the complainant, referred to as 'A', to two individuals, Mr Rushby and Mr Hall. The central dispute revolved around the admissibility of the details of these complaints under section 34M of the *Evidence Act 1929* (SA).

The legal issues before the Full Court of the Supreme Court of South Australia were whether the trial judge had erred in admitting evidence of complaints made by A to Mr Hall, and whether this admission constituted a miscarriage of justice. Specifically, the court had to determine if the evidence given by Mr Hall constituted an admissible "elaboration" of an earlier complaint made by A to Mr Rushby, as required by section 34M of the *Evidence Act 1929*.

The court found that the trial judge had erred in admitting the evidence of the complaint to Mr Hall. The reasoning was that A had consistently stated on the *voir dire* that she had provided the same, low level of detail to both Mr Rushby and Mr Hall. While Mr Hall's evidence did disclose more detail than A recalled telling Mr Rushby, this did not, in itself, constitute an elaboration of the initial complaint to Mr Rushby. The court held that the prosecution's argument, which persuaded the trial judge, contained a fallacy: it assumed that because Mr Hall's evidence showed A was mistaken about the *level* of detail she provided, it could also demonstrate that she provided *more* detail to Mr Hall than to Mr Rushby, thereby constituting an elaboration. However, A's firm evidence was that she gave the same level of detail to both. Therefore, the evidence of Mr Hall could not establish an elaboration of the complaint to Mr Rushby, and its admission was improper.

The court concluded that the admission of Mr Hall's evidence was a material error and that a miscarriage of justice had occurred. The appeal was allowed, and the conviction was quashed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Judge later asked A the following questions: QI just wonder if I could ask you if you like to compare what you told Mr Rushby, on the one hand, and your husband, on the other hand, so that I can determine what the difference between the information given to each was. In other words can you put your mind so as to compare what you said to one as against what you said to the other and approach it in this way if you could: did you tell your husband anything more than you told Mr Rushby?A No.QDid you tell your husband on more than one occasion what had happened or was it just the one occasion?A The one occasion.Q And was the matter then not further discussed between you?A No, it was too painful.A’s evidence on the trial of making complaint to Mr Rushby and Mr Hall A subsequently gave the following evidence on the trial proper of making complaint to Mr Rushby and Mr Hall:QWho was the first person that you complained with about what your father had done?A Alan Rushby.Q Who was Alan Rushby?A He was my first serious boyfriend.Q How old do you think you would have been?A 18, possibly 19.Q Had you moved out of home by that stage?A Yes, I had.Q Is it the case that Mr Rushby has since passed away?A That’s right.QDid you then subsequently tell somebody else at a later stage? Before we go there. What did you actually tell Mr Rushby or what do you recall telling Mr Rushby?A That my father had abused me sexually.Q Do you know if you went into any detail with him about that?A No, I didn’t.Q Did you then tell somebody else?A Yes, I did, my first husband.Q When did you get married?A In 1979.…Q How old were you when you got married in 1979?A 22.QHow long after you got married do you recall telling Mr Hall about what your father had done?A Within the first year of marriage.…Q Do you remember exactly what you told him?A Not the exact words but I just felt he needed to know.Q What did you say to him?AI don’t remember the exact words but that I had told him that my father had abused me sexually when I was a child.Q Do you know if you went into any detail with him about it?A No, I didn’t. I couldn’t.Q Is your mother still alive?A Yes, she is.Q What is the state of her health?A She is very, very frail and early or onset of dementia.Q Did at some point your parents separate?A Yes, they did.Q When was that?A In 2010. (Emphasis added)Mr Hall’s evidence at trial of A’s complaint to him Mr Hall did not give evidence on the voir dire. The ruling as to admissibility was made on the basis of his police statement which was consistent with the following evidence he gave at trial of A making complaint to him:Q When did you get married?A August ‘79.Q How old were you at the time?A 22, I believe.Q How old was A?A I think she was probably around the same age.…Q At some stage after your wedding did you move into a house at Glenalta?A Yes.Q Whereabouts in Glenalta was that?A Rosella Avenue.QFollowing that time or at any time did A ever have a discussion to you about her father?A Yes.Q What did she tell you?A She just told me initially that he came into her room and fondled her at night.Q Did she say when this was occurring, at what stage of her life it was occurring?A Early age of her life.QWhen she told you this how long after your wedding do you think that it would have been?A Not too sure, six or 12 months.Q Do you know where you were when she told you?A In the house at Rosella Avenue.QOther than telling you that her father had came in when she was younger and fondled her, what else did she tell you?AWell, it kind of went on to that - I think there was more that happened and eventually it led to A becoming pregnant.Q Did she say who the father was?A Her father, yes.Q What did she say to you relative to that pregnancy?A She just said she was taken away way for an abortion, that’s about all.Q Did she tell you where she was taken for an abortion?A No, not that I can remember.Q Do you remember if she told you how old she was at the time of the abortion?A Not exact age, no.Q Did she say anything to you about why she hadn’t reported the matter earlier?A Mainly to protect her mother.Q She told you that?A Yes.Section 34M of the Evidence Act 1929

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The decision of this Court in Place[5] dealt with the correct approach to s 34M generally, and with the first of the two above requirements above in particular. The Court there applied the decisions of this Court in The Queen v S, DD,[6] R v Maiolo (No 2),[7] R v Usher[8] and R v Maiolo (No 3)[9] and determined that the complaint in Place was sufficiently referrable to the charge before the Court to constitute an admissible “initial complaint”.[5] [2015] SASCFC 163.[6] (2010) 109 SASR 46.[7] (2013) 117 SASR 1.[8] (2014) 119 SASR 22.[9] [2014] SASCFC 89.Elaboration of an initial complaint In Place, no question arose as to the second requirement of “elaboration”, but it is to the same general approach and methodology that recourse should be had in discussing this second requirement. It is interesting to note that, immediately after hearing the evidence given by A on the voir dire (reproduced above), the trial Judge observed to the prosecutor arguendo:HIS HONOUR Mr Healey I think it is an irony of the legislation that unless there is an elaboration later evidence can't be given. Now I can’t presently see how what H said to her husband can be construed as an elaboration of what she told Mr Rushby. The Judge was correct in that initial observation. Unfortunately, the prosecutor persuaded his Honour to change his mind. The prosecutor’s submission appears to have consisted of the following steps. First, A stated that she gave the same low level of detail to both Mr Rushby and Mr Hall. Second, the evidence of Mr Hall discloses more than a low level of detail. Third, the jury might accept the evidence of Mr Hall and therefore find that A is wrong as to the level of detail that she gave to Mr Hall. Fourth (and critically), that the jury might find that this level of detail given to Hall was greater than that given to Rushby and therefore constituted “elaboration” of the complaint to Rushby. Mr Koehn attempted to draw his Honour’s attention to the fallacy of the above argument in essentially the following terms. The first three steps of the prosecution argument are correct. A did state that she gave the same low level of detail to both Mr Rushby and Mr Hall; the evidence of Mr Hall did disclose more than a low level of detail; and the jury could accept Halls evidence on the matter. However, the fourth step involves an error contrary to both logic and authority. The error is that although Hall’s evidence can demonstrate that A’s memory is faulty as to the level of detail that she had given when complaining some 40 and 35 years prior to trial, Hall’s evidence cannot affect the accuracy of A’s firm evidence that she gave the same level of detail to both Rushby and Hall. In other words, even accepting fully the first three stages of the prosecution argument, the following possibilities remain open:1A was correct in stating that she gave the same level of detail to both Rushby and Hall (even though she was incorrect about the low level of that detail).2A gave more detail to Rushby than Hall (perhaps because her memory was then fresher than when she later spoke to Hall).3A gave more detail to Hall than Rushby (for no reason to be seen on the transcript).