R v Hurst
[2011] SASCFC 152
•16 December 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v HURST
[2011] SASCFC 152
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice Stanley)
16 December 2011
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISCONDUCT OF COUNSEL
Appeal against conviction - appellant convicted of three counts of unlawful sexual intercourse after a trial by judge alone - appellant submitted defence counsel failed to adduce certain evidence, failed to give the appellant opportunity to read record of interview before being cross-examined, failed to cross-examine the complainant on certain material in subpoenaed documents, failed to call available character evidence, was not familiar with s 34CB of the Evidence Act 1929 (SA), was not aware the appellant was required to be called before other witnesses, and did not understand the trial judge did not have regard to declarations - whether the defence counsel's alleged incompetence led to a miscarriage of justice.
Held: the defence counsel's failure to adduce available evidence in relation to the appellant's working hours, cross-examine the complainant on evidence inconsistent with certain subpoenaed material, and call character evidence which was available led to a miscarriage of justice - appeal allowed - set aside verdicts of guilty in respect of counts 2, 3 and 4 - re-trial ordered.
Evidence Act 1929 (SA) s 34CB; Criminal Law Consolidation Act 1935 (SA) s 353(4), s 359(b), s 359(c), s359(f), referred to.
Nudd v The Queen (2006) 162 A Crim R 301; TKWJ v The Queen (2002) 212 CLR 124, discussed.
C, TL v Police (2010) 269 LSJS 155, considered.
R v HURST
[2011] SASCFC 152Court of Criminal Appeal: Sulan, Anderson and Stanley JJ
SULAN J: I would allow the appeal and set aside the conviction. I agree with the reasons of Stanley J and the orders he proposes.
ANDERSON J: I have read the draft provided by Stanley J. I agree that the appeal should be allowed for the reasons given by His Honour.
I agree with the comments relating to the competence of counsel. I would simply add that I agree with the remarks as a reflection on the system. I commend counsel for his frank assessment of the situation when he reflected on the result and acknowledge the frank and helpful affidavit he provided.
STANLEY J:
Introduction
This is an appeal against conviction.
The appellant was convicted of three counts of unlawful sexual intercourse after a trial by judge alone. He was acquitted of one count.
He appeals on the ground that the convictions were based on a miscarriage of justice.
Facts
The appellant is the former brother in law of the complainant. The offences for which he was convicted were alleged to have occurred between September 1998 and October 2000. At the time the complainant was aged between 14 and 16 years. At the time the appellant was married to the complainant’s older sister. The nature of the offending involved penile vaginal intercourse.
At the time the complainant lived with her mother and stepfather, MC and RC. The appellant and his wife lived nearby. He was a regular visitor to the C family house. He worked in his family’s plumbing business.
The complainant alleged that from early in 1998 the appellant began waiting for her in his car at a car park near her home where she alighted from the school bus. He would prevail upon her to get into his car where he would touch her breasts through her clothing and make her fellate him. Eventually, he began having vaginal sexual intercourse with her at her mother and stepfather’s house. He continued to have sexual intercourse with her for some years, the last occasion being in a shed at his house on the complainant’s 16th birthday.
Nearly a year after the offending concluded the complainant told her mother that she had been groped by the appellant and, at her mother’s insistence, made a report to the police. Her statement to the police was similar to the complaint to her mother. However, the complainant decided not to pursue the matter further and wanted no action taken. In 2010 she changed her mind and again spoke to the police. This led to the charges, which were the subject of the trial, being laid.
The complainant was born on 2 September 1984. She began high school in 1998. At the time of the offences she lived at Salisbury North. At the time of the offences the complainant lived in the house with her mother and stepfather, their younger son, R, who was born in November 1987, and two foster children for whom MC was the full time carer.
The complainant’s stepfather worked on day shift at Holden’s plant at Elizabeth and generally arrived home each weekday between 3.30pm and 4.00pm.
The complainant would finish school at around 3.00pm and then catch a bus to a stop near to her home. From the bus stop she would walk across the soccer oval and then a short walk to her house. She would usually arrive home about 3.30pm. Her mother generally returned to the family home about half an hour to an hour later after picking up the complainant’s foster brother.
As I have mentioned, the complainant alleged that the appellant began waiting for her in his motor vehicle at the car park next to the soccer oval by the bus stop in the early part of 1998. He persuaded her to get into the car with threats that he would tell the complainant’s sister, his wife, that the complainant had “cracked onto him” if she did not get in. She alleged that he would touch her breasts through her clothing and force her to perform oral sex on him. She alleged that this occurred once or twice a week for more than two years. These allegations of multiple oral intercourse were uncharged acts.
The complainant alleged that after these occasions of sexual activity had occurred the appellant would drive her home. The relevance of this will become apparent shortly.
Count 1, in respect of which the appellant was acquitted, was alleged to have occurred in the lounge room of the family home. It was alleged to have occurred one day after school after the appellant had picked her up from the bus stop and driven her home. The complainant said it occurred shortly after 3.30pm. She was sitting in the lounge watching television with the appellant sitting next to her. He began groping her on the breast and crotch outside her clothing. He then knelt in front of her, held her arms so that she could not move, and pulled down her underwear. He prised her legs open, pulled his pants down to his knees and placed his penis into her vagina. She alleged that this act of sexual intercourse occurred around Easter 1998.
Part of the problem with this allegation, for the learned trial judge, was that this occasion of sexual intercourse was one of a number of similar incidents which were alleged to have occurred over an unspecified period of time up to her 16th birthday.
Count 2, in respect of which the appellant was convicted, was also alleged to have occurred around Easter 1998 after school. The appellant was alleged to have picked up the complainant from the bus stop and brought her home. Once at home she was lying on her bed in her bedroom when the appellant entered. She alleged he touched her breasts and crotch before inserting his fingers into her vagina for some time. He then had penile sexual intercourse with her until he ejaculated. This was alleged to be the first occasion on which the appellant had sexual intercourse with her in her bedroom.
Count 3, in respect of which the appellant was convicted, was an occasion of sexual intercourse in the bathroom of the family home. The complainant alleged that while she was in the shower one morning before school the appellant entered the bathroom and when she exited the shower alcove she saw the appellant who forced her to bend forward while he had penile sexual intercourse with her whilst standing behind her.
Count 4, in respect of which the appellant was convicted, was an act of sexual intercourse alleged to have occurred in a shed at the home of the appellant and his then wife on the occasion of the complainant’s 16th birthday party.
The appellant gave evidence that the party was to be held on the evening of her birthday, 2 September 2000. And, at that time the appellant and her sister, the appellant’s then wife, owned two dogs. The complainant was asked to put one of the dogs in the shed before the guests arrived. She did so. She was then asked to get something from the shed. She went to the shed, and while she was in there, she alleged the appellant came into the shed, pinned her up against the side of the shed, groped her breast and crotch, inserted his fingers into her vagina and then exposed his penis, prised her legs open and had sexual intercourse with her.
Subsequent to these events, the complainant has had a difficult life. She gave evidence at trial about her children. All three of them had been removed from her care. One now lives with the complainant’s mother and the other two live with her sister, the appellant’s former wife. The complainant told the learned trial judge that, owing to the abuse she suffered at the hands of the appellant, she suffers from depression. On account of her mental condition consequent upon that depression the children were taken from her. She told the Court that she reopened this matter and made a report to the police in 2010 because she was sick of “living with it”.
Reasons for decision
As the learned trial judge noted, the prosecution case depended almost solely upon the evidence of the complainant,[1] who was giving an account of events that she alleged occurred some 13 years earlier. There was little independent support for her allegations. She delayed for some 12 years making a comprehensive complaint.
[1] R v H, MA [2011] SADC 97 at [6].
The learned trial judge recognised the forensic disadvantage under which the appellant laboured.[2] He directed himself that he should not convict unless he was completely satisfied of the complainant’s truthfulness and accuracy.[3]
[2] R v H, MA [2011] SADC 97 at [6].
[3] R v H, MA [2011] SADC 97 at [6].
As I have said he found the appellant guilty of counts 2, 3 and 4. He did so on the basis that he was satisfied beyond reasonable doubt that the complainant’s evidence about sexual contact between her and the appellant was credible and reliable. He made an express finding that the complainant was a credible and reliable witness and gave her evidence in a forthright manner.[4] He found her account of the incident in the bathroom, which was count 3, to be compelling in its detail.
[4] R v H, MA [2011] SADC 97 at [55].
In this regard the learned trial judge was unconcerned that the complainant was unable to be definite about whether or not the appellant was circumcised, nor was his Honour troubled by the fact that she reported to the police that she thought he was when, in fact, that was not the case.
Further, the learned trial judge was not satisfied that there were dogs present on the occasion of her 16th birthday party. Nonetheless, that did not shake his confidence in the reliability of her evidence.[5] The learned trial judge did not think that she was mistaken about the occasion of sexual contact between her and the appellant in the shed on the occasion of her birthday celebration at his house. He accepted she might well have been confused or mistaken about the presence of dogs on that occasion given that it was not uncommon for family celebrations to be held at the appellant’s house. In the circumstances, this did not shake his Honour’s confidence in the reliability of the complainant’s evidence as to the critical allegations upon which he found the appellant guilty.
[5] R v H, MA [2011] SADC 97 at [59].
The learned trial judge acquitted the appellant in relation to count 1, but not because of any reservation he harboured about the reliability of the complainant’s evidence. On the contrary, he had no doubt that such an occasion occurred. The finding of not guilty was because the learned trial judge considered the evidence did not sufficiently identify and separate the occasion of count 1 from other similar occasions of sexual intercourse in the lounge of the family home.[6]
[6] R v H, MA [2011] SADC 97 at [75].
The complainant’s stepfather, RC, gave evidence at the trial. RC gave evidence that when the complainant was in first year high school, she once said to him that she wished the appellant would not come to the bus stop all the time and would leave her alone. RC went on to say that normally, the appellant “would pick her up and bring her home sort of thing”.[7] He told the Court he saw the appellant dropping the complainant off, as the appellant would normally come into the house when he did so. He said that such occasions of dropping off were not frequent but “off and on”. The learned trial judge accepted this evidence as corroborative of the complainant’s evidence in two ways. First, of the appellant picking her up after school and dropping her home. Secondly, the learned trial judge accepted the complaint made by the complainant to her stepfather about the appellant picking her up after school was evidence of her state of mind, namely, that she did not wish to be with the appellant.[8]
[7] T 116.
[8] R v H, MA [2011] SADC 97 at [64].
This was important because the appellant gave evidence that he did not ever pick up the complainant after school and bring her home. The learned trial judge rejected this evidence on the basis of the evidence of the complainant and RC.[9]
[9] R v H, MA [2011] SADC 97 at [65].
The learned trial judge also placed some considerable reliance upon evidence of the complainant’s mother of an occasion when she saw the appellant coming from the complainant’s bedroom with his trousers partly down. This was also denied by the appellant. The learned trial judge regarded MC’s evidence of this event as clear and compelling.[10] He considered the appellant lied about this incident and about the number of occasions when he picked up the complainant from the bus stop and brought her home, so as to distance himself from suggestions he took any opportunity to be alone with the complainant.
[10] R v H, MA [2011] SADC 97 at [62].
The appeal
The appellant complains that a miscarriage of justice occurred by reason of the incompetence of his counsel at trial.
The appellant submitted that due to the incompetence of his counsel at trial certain evidence was not adduced, which would have been led by competent counsel, and the failure to lead this evidence resulted in a material irregularity in the trial which gave rise to a significant possibility that the irregularity affected the verdicts.
The appellant submitted that his counsel at trial made the following errors:
1.He failed to adduce evidence that was available that the appellant could not have picked up the complainant from the bus stop after school with the regularity that she alleged because he was working;
2.Counsel failed to give the appellant the opportunity to read the record of interview with the police and to take instructions before he was cross-examined;
3.Counsel failed to cross-examine the complainant on certain material in records subpoenaed from Family and Youth Services (FAYS) which were relevant to important aspects of her evidence;
4.Counsel failed to call character evidence which was available;
5.Counsel was not familiar with s 34CB of the Evidence Act 1929 (SA) where there had been significant delay and there were a number of areas of forensic disadvantage suffered by the appellant;
6.Counsel did not understand that he was required to call the appellant before any other witness until he was advised by the trial judge; and
7.Counsel did not understand that although it was a trial by judge alone, the learned trial judge did not have regard to declarations.
Miscarriage of justice and incompetence of counsel - relevant principles
In Nudd v The Queen,[11] Gleeson CJ observed that “the concepts of justice, and miscarriage of justice, bear two aspects: outcome and process. They are different, but related”.[12]
[11] Nudd v The Queen (2006) 162 A Crim R 301.
[12] Nudd v The Queen (2006) 162 A Crim R 301 at [3].
The Chief Justice went on to observe:[13]
This emphasis upon outcome and process as requirements of justice according to law is fundamental and familiar. It informed the explanation of miscarriage of justice given by Barwick CJ in Ratten v The Queen:
“Miscarriage is not defined in the legislation but its significance is fairly worked out in the decided cases. There is a miscarriage if on the material before the court of criminal appeal, which where no new evidence is produced will consist of the evidence given at the trial, the appellant is shown to be innocent, or if the court is of the opinion that there exists such a doubt as to his guilt that the verdict of guilty should not be allowed to stand.
…
That is one instance of a miscarriage: another is where the appellant has not had a fair trial. There is no need here to refer to the various circumstances in which a trial may become unfair. Some of these are mentioned in the reasons of the Full Court. But it may be that even where there have been irregularities at the trial there may be no miscarriage of justice if the court forms the opinion that no jury of reasonable men, properly instructed and alive to their responsibilities, would fail on the evidence to convict the accused.”
[13] Nudd v The Queen (2006) 162 A Crim R 301 at [5].
Gleeson CJ noted that while it is impossible and undesirable to attempt to reduce miscarriages of justice to a single formula, nonetheless there is at least one circumstance in which a failure of process cannot be denied the character of a miscarriage of justice on the ground of the appellate court’s view of the strength of the prosecution case. That is where the consequence of a failure of process is to deprive the appellate court of the capacity justly to assess the strength of the case against the appellant. There may be other circumstances 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. An unjust conviction is one form of miscarriage. Another is a failure of process which departs from the essential requirements of a fair trial. Where this is alleged, the appeal court focuses on what happened at, or in relation to, the trial of the appellant. In these circumstances, it is unusual for the appellate court to embark on an enquiry into the conduct of counsel, because the issue is whether there has been a departure from the requirements of a fair trial, not why that may have occurred. However, in Nudd Gleeson CJ said:[14]
Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise.
[14] Nudd v The Queen (2006) 162 A Crim R 301 at [9].
In TKWJ v The Queen,[15] Gaudron J said:[16]
The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question “deprived the accused of a chance of acquittal that was fairly open”. The word “fairly” should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.
[15] TKWJ v The Queen (2002) 212 CLR 124.
[16] TKWJ v The Queen (2002) 212 CLR 124 at [26].
In the same case, McHugh J said:[17]
The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, “whether counsel has been negligent or otherwise remiss ... remains relevant as an intermediate or subsidiary issue”. That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel’s conduct result in a material irregularity in the trial? Secondly, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, “it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence”. The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.
In what circumstances then, will the appellant be able to discharge the heavy burden of establishing that counsel’s conduct constituted a material irregularity amounting to a miscarriage of justice? Where the appellant can show that counsel has conducted the trial with flagrant incompetence, it is likely that the appellant will have established a material irregularity in the conduct of the trial that will provide the stepping stone to a finding of a miscarriage of justice. In R v Birks the New South Wales Court of Criminal Appeal held that counsel’s conduct constituted “flagrant incompetence” and had brought about a miscarriage of justice. His conduct included failing to cross-examine the complainant on a material matter in accordance with his instructions and failing to take steps to minimise the damage flowing from that failure. As a result, the Crown cross-examined the accused to suggest that his evidence was inconsistent with his instructions to his counsel.
…
… where the alleged error of counsel does not concern a forensic choice, the appellant will usually be in a better position to prove that a miscarriage of justice has occurred than in cases of forensic choice. If counsel omits to call a material witness because of a memory lapse or a breakdown in communication and there is a significant possibility that the omission affected the outcome, the appellant will usually establish that a miscarriage of justice has occurred. In R v Scott(, the Court of Criminal Appeal of South Australia held that the failure to call two witnesses because of a misunderstanding between counsel and the accused had led to a miscarriage of justice. Doyle CJ said that he "might not have reached this conclusion if this point stood alone", but the "treatment in the summing up of [another witness'] evidence was all the more damaging because there was no answer to her evidence”.
[Footnotes omitted].
[17] TKWJ v The Queen (2002) 212 CLR 124 at [79] - [80] and [85].
Fresh evidence
Pursuant to s 353(4) and s 359(b), (c) and (f) of the Criminal Law Consolidation Act 1935 (SA) the Court received further evidence on appeal by way of affidavit.[18]
[18] C, TL v Police (2010) 269 LSJS 155 at [11] - [15].
The affidavit evidence received by the Court on appeal included an affidavit from the appellant’s trial counsel deposing to the fact that he was conducting his first trial in the District Court and admitting to the matters of which the appellant complains in relation to his conduct of the trial set out above.
An affidavit was also admitted from the appellant’s solicitor which exhibited a confidential assessment report from Karen Fitzgerald, Chief Clinical Psychologist, and Emma Cowan, Senior Social Worker with the Child Protection Service at the Flinders Medical Centre, dated 1 December 2009, which formed part of the records subpoenaed from FAYS at trial but not read by the appellant’s trial counsel.
Also contained within the affidavit evidence received by the Court on appeal was an affidavit of Gregory Hurst, the appellant’s uncle. He deposed to the fact that he worked on and off for his brother’s business in which the appellant was employed at the relevant time. He deposed to the fact that he worked with the appellant at Hurst Plumbers. In particular, he worked with the appellant on a job at the Ramsgate Hotel during the period 1998 to 2001. He remembered that the appellant was the site foreman and most of the tools for the job were in his ute. He worked on the site with the appellant. The hours of work on the site were from 7.00am to 3.30pm. These were standard industry hours. He deposed to the fact that he did not remember the appellant leaving work early on a regular basis at all. He deposed to the fact that if the appellant had left early once or twice a week he was sure he would have noticed and this would have been remarked upon by others at the workplace including the appellant’s father and brother who were also working at the site. He deposed to the fact that because the appellant’s ute was used to carry the power tools, if he had left early from the job, that would have been noticed because it would have restricted the work that could have been performed once the appellant had left the site.
An affidavit was also received from Richard Hurst, the brother of the appellant. He deposed to the fact that he also worked in the family plumbing business. He deposed to the fact that the practice of the business, at the time, was to work eight hour days which finished at 3.30pm. He thought that only about 10 per cent of the time did anyone ever leave the site before 3.30pm. He particularly recalled a job in late 1999 and early 2000 where he had a clear memory that the appellant did not regularly leave before the rest of the firm’s workforce at 3.30pm. Whilst he deposed to the fact that the appellant did leave early from jobs towards the end of his employment after 2005, before that date he had never observed the appellant leaving a site early. Moreover, he had never received any complaints from any of the foremen that the appellant was leaving a site early prior to 2005.
The Court also received an affidavit from Lenore Hurst, the mother of the appellant. She deposed to the fact that the plumbers employed by the business were paid for an eight hour day which meant that they worked until 3.30pm. She recalled in the period 1998 to 2001 there were many occasions when the appellant would drop his father home after a day’s work which occurred any time between 4.00pm and 4.30pm. It would never be earlier than that.
The Court also received an affidavit from Duane Reynolds. In 1998 he was working for Rela Constructions and they subcontracted with Hurst Plumbers on a job for about 12 months. The appellant had worked on this job. Mr Reynolds was the site supervisor. He recalls the appellant being onsite a lot of the time. The job finished in late 1998 or early 1999. He deposed to the fact that if the appellant had been leaving the worksite once or twice a week at around 2.30pm to 3.00pm he would have known about it. The job site was at the intersection of Bentham and Franklin Streets in the city. He was confident that the appellant did not leave the site earlier than 3.30pm to 4.00pm during the period that he was working on the site.
The Court also received an affidavit from Michael Locke. He worked with Hurst Plumbers from late 1999. He continues to be employed by Hurst Plumbers. During the period from 1999 to 2001 he deposed to the fact that the appellant worked five days a week for Hurst Plumbers. He was supervising the appellant. He did not remember him leaving early on a regular basis. He refers to a couple of jobs in the period 1999 to 2001 where he was supervising the appellant. He deposed to the fact that he was not leaving the job on a regular basis before 3.30pm.
The Court on appeal also received affidavits from Michael Lenarczyk and Kris Grant, both of whom deposed to the fact that they could have given character evidence on behalf of the appellant had they been asked.
Finally, the Court received an affidavit of the appellant which I will refer to later in these reasons.
Consideration
In my view, there was a miscarriage of justice in this matter. The miscarriage primarily resulted from the omission of the appellant’s counsel at trial to adduce evidence and to cross-examine the complainant in relation to matters disclosed in subpoenaed material not properly considered by him, which deprived the appellant of a chance of acquittal that was fairly open.
My conclusion in this regard is founded on the trial judge’s reasoning that the prosecution case depended almost solely upon the evidence of the complainant whom his Honour considered to be a credible and reliable witness.
There are two aspects in respect of which the conduct of the appellant’s counsel at trial constituted a material irregularity. First, the failure to adduce evidence in relation to the timing of the appellant’s departure from work. Secondly, the failure to cross-examine the complainant on aspects of her evidence which were inconsistent with certain material in the subpoenaed FAYS file.
The complainant testified that the appellant picked her up from the bus stop after school once or twice a week for nearly two years. She alleged that almost on every occasion this occurred, the appellant forced her to fellate him. The appellant denied these occasions occurred. He said it was not possible as he was at work at the time. The learned trial judge was satisfied beyond reasonable doubt that there were a number of occasions of oral intercourse between the appellant and the complainant in his car after school. Had the appellant’s counsel at trial adduced the evidence that was available from Gregory Hurst, Richard Hurst, Lenore Hurst, Duane Reynolds and Michael Locke referred to above, which, on any view, might have cast doubt on the credibility and reliability of the complainant’s evidence about these incidents, which constituted uncharged acts, the learned trial judge’s preparedness to rely upon the evidence of the complainant in order to find counts 2, 3 and 4 proven beyond reasonable doubt, may have been shaken.
Counsel for the DPP put the submission that this evidence was vague, of a general nature and of little, if any, probative value. Had the evidence been adduced, these submissions might have been accepted, however, the fact is, this evidence was not heard or tested, and it was not heard because of the incompetence of counsel. The possibility that the judge may have come to the same conclusion even had he heard this evidence does not gainsay the conclusion that the failure to call the evidence constituted a material irregularity in the course of the trial which gave rise to a significant possibility that the outcome was affected.
Furthermore, the preparedness of the learned trial judge to rely upon the evidence of the complainant for the purpose of reaching verdicts of guilty in respect of counts 2, 3 and 4, might have been further eroded had the appellant’s counsel at trial cross-examined the complainant on some of the material available in the subpoenaed FAYS file.
The learned trial judge made the following finding:[19]
[The complainant] gave evidence about her children. All three of them have been removed from her care. One now lives with [the complainant’s] mother and the other two live with her sister S. [The complainant] explained that, owing to the abuse she suffered at the hands of the accused, she suffers from depression. On account of her mental condition consequent upon that depression the children were taken from her. She re-opened this matter and made a report to police in 2010 because she was sick of “living with it”.
[19] R v H, MA [2011] SADC 97 at [33].
Material in the subpoenaed FAYS file presented a somewhat inconsistent picture from that apparently accepted by the learned trial judge. That material consisted of the confidential assessment report of 1 December 2009 prepared by the psychologist and social worker with the Child Protection Service. It recorded a history that the complainant’s two youngest children were referred to the Child Protection Service in February 2009 because of concerns that they were at significant risk of sexual abuse at the hands of their biological father and a friend of the father, both of whom had histories of sexually abusing children.
Information provided at the time of referral indicated that there had been an ongoing history of concerns for the family in relation to sexual abuse, neglect and the complainant’s capacity to protect her children from sexual abuse, dating back to 2004. The report concluded that the complainant’s two younger children be placed in the care of the complainant’s sister, the appellant’s former wife. It is apparent that this recommendation was contrary to the wish of the complainant who had placed the children in the care of their paternal grandmother, a situation which the Child Protection Service considered was neither appropriate nor consistent with the children’s physical and psychological needs. These events occurred shortly before her complaint to the police which resulted in the charges, the subject of the trial, being laid by police.
In addition, the report noted that the complainant had previously given a history to the Child Protection Service that her childhood was normal and that “nothing major stood out”. Later, she did report to the Child Protection Service ongoing rape by “her sister’s partner” between the ages of 13 to 16 years.
The failure of the appellant’s counsel to read this material and cross-examine on it means that a significant line of attack on the credit and reliability of the complainant was missed. When coupled with the evidence that was available, but not adduced, corroborating the appellant’s evidence that he could not have picked up the complainant after school with the regularity she alleged, because he was working at the time, these matters give rise to a significant possibility that the material irregularity in failing to pursue these matters at trial affected the outcome.
These matters may well have eroded the learned trial judge’s reliance upon the evidence of the complainant. In circumstances where, as the learned trial judge noted, the prosecution case depended almost solely upon her evidence, I consider that the appellant has demonstrated that the trial miscarried by reason of counsel’s failure to call available evidence and to probe the testimony of the complainant by reference to subpoenaed material which he failed to properly scrutinise.
I am further troubled by the failure to call character evidence.
The appellant’s trial counsel disclosed in his affidavit that he failed to cross‑examine Mr Lenarczyk, who was called by the prosecution, as to the appellant’s character because there was no point in adducing character evidence from Mr Lenarczyk because he was an associate and current employee of the defendant. This reflected a misunderstanding on the part of trial counsel. Obviously, character evidence can only be led from someone who knows an accused. In addition, the appellant’s trial counsel disclosed that he did not seek instructions from the appellant in relation to any other character evidence that may have been available. Neither did he advise the appellant of his right to call character evidence. As is plain from the affidavits of Mr Grant and the appellant other character evidence was available and could have been called at trial. In the circumstances the failure to call character evidence was not the consequence of a legitimate forensic decision on the part of trial counsel for the appellant.
The failure to call character evidence which was available is a further reason for concern. The learned trial judge rejected the appellant’s evidence on critical matters. If character evidence had been adduced in this case it may have affected the learned trial judge’s view of the appellant and his evidence. This, in turn, may have affected his Honour’s preparedness to rely on the complainant’s evidence. Trial counsel’s failure to consider the significance of such evidence and to advise the appellant accordingly deprived him of yet a further argument that could have been advanced on his behalf.
In my view, these matters are sufficient to allow the appeal and set aside the convictions. Nonetheless, I make the point that the other conduct of the appellant’s counsel at trial complained of on appeal, in my view, was not such as to constitute a miscarriage of justice. The failure to understand that the appellant was required to give evidence before any other witness, the lack of familiarity with the provisions of s 34CB of the Evidence Act 1929 (SA), counsel’s ignorance that the trial judge would not have regard to declarations, and the failure to give the appellant the opportunity to read his record of interview before cross-examination, are matters which, in my view, could not be said to have given rise to any significant possibility that the learned trial judge would have reached a different verdict in respect of any of counts 2, 3 and 4.
Counsel’s failure to understand that the appellant was required to give evidence before any other defence witness did not result in an irregularity in the trial. The learned trial judge informed him of this requirement and the appellant was duly called as the first witness. This could not have given rise to a miscarriage.
Counsel’s lack of familiarity with the provisions of s 34CB of the Evidence Act did not create a miscarriage of justice. The trial judge appropriately directed himself with respect to the provision as follows:[20]
The prosecution case depends almost completely upon the evidence of LH. There is little independent support for her allegations. Moreover, as I have said, she delayed for some 12 years before making a full complaint and another year has now passed between the time of the complaint and trial. Accordingly, I have directed myself as follows.
(i) The prosecution case stands almost completely upon her evidence alone.
(ii) Owing to the lapse of time, the accused has not been able to test her account in detail.
(iii) Human memory is frail and is liable to distortion as time passes.
(iv) There is a danger of distortion of memory of events which occurred in the past, and where the recollection is from early teenage years.
(v) The failure to make a prompt complaint and the delay in complaining may in themselves cast doubt upon the reliability of LH’s evidence.
(vi) The delay has forensically disadvantaged the accused in a number of ways. He cannot now be expected to remember relevant times and occasions as he would have been able to do had there been a prompt complaint. Had there been a prompt complaint, he would have been in a position to remember where he was and with whom and so may have been able to produce evidence to refute the allegations. For example, he may have had access to his employment records. The delay has meant that medical or scientific investigations such as DNA testing of LHs’ underwear cannot be undertaken. The accused has lost the opportunity to interview potential witnesses. I have taken those disadvantages into account in considering whether or not the prosecution has proved its case beyond reasonable doubt.
[20] R v H, MA [2011] SADC 97 at [5].
Counsel’s ignorance that the trial judge would not have regard to declarations did not result in a miscarriage of justice. The learned trial judge was not permitted to have regard to the declarations and he did not do so. In any event, the only declaration to which counsel for the appellant at trial referred to in the course of his closing submission was the complainant’s. He referred to a part of her statement where she proffered an explanation for why she did not disclose to her mother the full extent of the appellant’s offending when she made the initial complaint about one year after her 16th birthday. The explanation referred to a wish to protect her nieces. But that explanation could not have undermined her credibility, it could only have reinforced it. The learned trial judge accepted the complainant’s evidence.
Finally, counsel’s failure to give the appellant the opportunity to read his record of interview before cross-examination could not have resulted in a miscarriage of justice. Relevant passages from his statement were put to him in cross-examination. He denied they were true. It cannot have affected the verdict.
Conclusion
I would allow the appeal and set aside the verdicts of guilty in respect of counts 2, 3 and 4.
I would remit the matter to the District Court for re-trial on those counts.
Before leaving this matter, I make the following observations. These were serious charges. In my view it was unfortunate and inappropriate that the appellant’s trial counsel was briefed to appear in a matter of such seriousness on the occasion of his first District Court trial. Where a miscarriage of justice results from the incompetence of counsel, not only is there an obvious harm done to an accused, but other serious consequences result. Not infrequently, a complainant will be put to the anxiety and stress of a re-trial, as will likely be the case in this matter. Furthermore, there is an obvious waste of public resources and court time. In addition, not unusually, considerable legal costs will be expended to no good end. While every counsel must at some point undertake their first trial, it is important in the administration of justice and the proper disposition of public moneys that counsel should only be briefed in matters within their competence. While the Bar Association undertakes a rigorous process of advocacy training as part of the Bar Readers’ course, not every counsel briefed to appear in the most serious trials are members of the Bar Association. I consider it important that the profession generally, and the Legal Services Commission in particular, gives attention to ensuring that competent counsel is briefed in serious criminal trials. I say this, mindful of the fact that these days the Court of Criminal Appeal too often is seeing appeals brought on the basis of a miscarriage of justice due to the incompetence of counsel. In the past, experience suggests that this ground of appeal occurred less frequently, perhaps because counsel had the opportunity to instruct and junior more experienced counsel before assuming the responsibility of conducting a trial of a serious criminal matter on their own. Given fewer opportunities these days for this to occur, consideration should be given to other measures to ensure the counsel who are briefed in serious criminal trials are up to the task.
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