R v J, SM

Case [2013] SASCFC 96

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v J, SM

[2013] SASCFC 96

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice White and The Honourable Justice Blue)

20 September 2013

CRIMINAL LAW - EVIDENCE - CREDIBILITY - REPUTATION FOR UNTRUTH

CRIMINAL LAW - EVIDENCE - CREDIBILITY - EVIDENCE IN CONTRADICTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE

The defendant was convicted by a jury of sexual offences againt his daughter S.  The complainant’s brother A gave evidence of complaint and to a limited extent by way of corroboration.  The trial Judge disallowed a question in his cross-examination as to whether the complainant should be believed on her testimony.  The Judge also ruled that the defendant’s counsel could not cross-examine A about a document, said to have been authored by him and containing an adverse comment about the complainant’s credibility.

The defendant contends that the trial Judge erred in law in precluding his counsel from:

1.       questioning A as to whether the complainant should be believed on her oath; and

2.       cross-examining A on the document.

The Director of Prosecutions contends that the oath-belief rule on which the defendant relies for these contentions should no longer be recognised as part of the common law of Australia.

Held per Blue J (Kourakis CJ and White J agreeing):

1.       The oath-belief rule has been recognised by other intermediate courts of appeal.  Accordingly, the question of whether it continues as part of the common law of Australia is a matter to be determined by the High Court (at [77]-[78]).

2.       The oath-belief rule does not require the witness’s opinion to be based only on general reputation and not upon personal knowledge (at [87]).

3.       The form of question asked by defence counsel was not in accordance with the oath-belief rule.  However, the Judge ruled against defence counsel’s line of questioning rather than the specific question (at [91]).

4. Section 23 of the Evidence Act 1929 (SA) has no application because it addresses the credibility of the witness being questioned and not the credibility of another witness (at [98]).

5.       The Judge erred in upholding the prosecutor’s objection to the document on the grounds that its provenance had not been proved.  However, the defendant was not permitted by the oath-belief rule to adduce specific evidence concerning the complainant’s credibility beyond the question whether she was to be believed on her oath (at [112]-[115]).

Held per Blue J (White J agreeing):

6.       The proviso should not be applied.

The defendant was deprived of the opportunity of obtaining a favourable answer to the disallowed line of questioning.  It is difficult for this Court to determine the effect of such an answer on the jury’s assessment of S’s credibility.  It is not possible for this Court to be satisfied that the jury would inevitably have convicted the defendant (at [101]-[107]).

Per Kourakis CJ (dissenting):

It is unlikely that A would have answered the question…

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R v J, SM [2013] SASCFC 96
Case
[2013] SASCFC 96
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CaseChat Overview and Summary

This case concerned an appeal against convictions for sexual offences. The prosecution's case relied heavily on the evidence of the complainant, S, who alleged various sexual acts by the defendant, her father, between 2004 and 2008. Evidence of complaint was given by S's brother, A, and her mother, M. A also provided corroborative evidence by testifying to hearing S crying and knocking sounds from the defendant's bedroom. The appeal arose from two rulings made by the trial judge during the cross-examination of A.

The central legal issues before the court were whether the trial judge erred in disallowing a question put to A asking whether S should be believed on her testimony, and whether the judge wrongly prevented counsel from cross-examining A about a document containing adverse comments about S's credibility. These rulings were argued to be contrary to an ancient common law rule, the "oath-belief rule," which permits a witness to be asked whether another witness should be believed on their oath. The Director contended that this rule was an anachronistic relic inconsistent with modern evidence principles.

The court considered the historical origins of the oath-belief rule, tracing it back to ancient forms of trial like ordeal and compurgation, where the concept of being "oath-worthy" was paramount. While acknowledging that individual justices in higher courts had referred to the rule as an exception to the credit rule, the court found considerable force in the Director's submissions that the rule is difficult to justify in the context of modern evidence law, particularly its potential conflict with the opinion and hearsay rules. The court noted that the Uniform Evidence Acts do not permit such questioning, suggesting the rule would not be incorporated if the matter were approached afresh. Despite this, the court ultimately found that the second ground of appeal, relating to the document, should be rejected.

However, the court allowed the appeal on the first ground, setting aside the convictions. The court ordered a retrial and remitted the matter to the District Court for that purpose.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This Court reserved the question of permission to amend and heard substantive argument on both grounds.Background The prosecution case at trial depended upon acceptance by the jury of the evidence of S. S gave evidence that in 2004, when she was 14, the defendant called her into his bedroom and told her to take off her pyjamas. This was the subject of the gross indecency count. S gave evidence that, a few weeks later, the defendant began inserting his finger into her vagina about twice a week. Two occasions were the subject of counts 2 and 3 alleging unlawful sexual intercourse. The other acts were uncharged. S gave evidence that in 2005 the defendant commenced penile penetration, which continued until March 2008. The first and last occasions were the subject of count 4, unlawful sexual intercourse, and count 5, incest (by which time S had turned 17). The remaining acts were uncharged acts. A and M gave evidence under section 34M of the Evidence Act 1929 (SA) of complaint by S. M gave evidence of one complaint in 2004 (of the defendant telling S to take off her clothes) and another complaint in March 2008 (that the defendant had been having sex with her since she was 14). A gave evidence that in about 2006 S told him that the defendant was “doing stuff to her”. A also gave evidence that, from time to time, he heard a knocking on the wall from his father’s bedroom and he heard S crying in her bedroom. The prosecution relied upon this evidence as corroboration of S’s evidence of sexual abuse. In the course of cross-examination, counsel for the defendant asked A:QKnowing [S] as well as you do, do you regard her as a person who should be believed before this jury?The prosecutor objected. During argument on the objection, by way of explanation for the line of questioning, counsel for the defendant tendered on the voir dire a one page document signed by A which was generally supportive of the defendant. It included the following passages:My sister [S] she has been a lie since 12 years old. I [A] say that my sister [S] is a liar. She has always lied to get wat she wants. It is hard to say, but she is. Counsel for the defendant argued that his question was justified by the propositions stated in R v Richardson.[6]The prosecutor did not accept that those propositions are still good law in South Australia. Alternatively, she contended that the question itself was objectionable because no foundation had been laid as to the source of A’s knowledge from which he could answer the question. [6] [1969] 1 QB 299 at 304-305. The Judge upheld the prosecutor’s objection. This ruling is the subject of ground one. Later in cross-examination, counsel for the defendant asked A whether he had a memory of a Facebook conversation on 18 September 2011 in which he participated. A initially said that he did not remember and then recalled making a specific statement when it was put to him. When, after further questions, counsel asked A if he would like to look at a document, the prosecutor objected.

Evidence

Evidence Before The Court

The defendant contends that this ancient common law rule of evidence continues to exist into the twenty first century and that the Judge’s two rulings were contrary to the rule. The Director contends that the rule is inconsistent with fundamental principles of the modern law of evidence, is an anachronistic relic of the ancient law of evidence and should be declared no longer to exist at common law.Evolution of the law of evidence Before turning to consider the opposing contentions of the defendant and the Director, it is desirable to consider the context of the rule in the law of evidence generally. It appears that the oath-belief rule originated in or arose out of the context of the ancient law of evidence as it existed in England a millennium ago.The Dark Ages to the 13th Century In the Dark Ages, the forms of “trial” for civil and criminal disputes were ordeal and compurgation.[12] They were derived from the Barbarian tribes who overran the Roman Empire.[13] [12] JF Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) Vol 1, pg 70; WS Holdsworth, A History of English Law (Methuen & Co Ltd, 5th ed, 1931) Vol 1, pg 299-312.[13] Holdsworth, A History of English Law (Methuen & Co Ltd, 5th ed, 1931) Vol 1, pg 305. The first step in the procedure was accusation. Accusations were generally made by a private accuser (the modern complainant), although they were sometimes made by non-professional officials (depending on the nature of the matter and the jurisdiction).[14] The accuser initiated the proceeding by swearing an oath that he or she believed the defendant to be guilty. The belief did not need to be of personal knowledge and could be based on hearsay. The fact of swearing belief of guilt was the important thing as opposed to giving evidence of specific facts. The defendant was required to swear an oath that he or she was not guilty in order to defend the proceedings.[15][14] Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) Vol 1, pp 64-70; Holdsworth, A History of English of English Law (Methuen & Co Ltd, 5th ed, 1931) Vol ,1 pp 299-302.[15] Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) Vol 1, pp 68-70; Holdsworth, A History of English Law (Methuen & Co Ltd, 5th ed, 1931) Vol 1, pp 299-302. Trial by ordeal involved testing the defendant by enduring an ordeal such as holding a red hot iron for a fixed time. If the defendant endured the ordeal, he or she was successful, otherwise he or she failed. The rationale for trial by ordeal was that God (or deities) would intervene to determine the question at issue.[16] [16] Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) Vol 1, pp 73-74; Holdsworth, A History of English Law (Methuen & Co Ltd, 5th ed, 1931) Vol 1, pp 310-311. Trial by compurgation (or wager of law) was heavily focussed on the oath as oath. A defendant was only entitled to trial by compurgation (as opposed to ordeal) if he or she first established good character, ie that he or she was “oath-worthy”. To be oath-worthy, he or she had to obtain oaths from sureties that he or she had not failed in ordeal or oath over a certain period. If this could not be obtained, the accused was required to undergo trial by ordeal.[17][17] Stephen, A History of the Criminal Law of England (Macmillan and Co, 1883) Vol 1, pp 70-73.

Decision

Reasons for decision

The second ground of appeal should be rejected.Conclusion I would allow the appeal and set aside the convictions. I would order a retrial and remit the matter to the District Court for that purpose.

Ratio Decidendi

Legal Principle Established

The continuing existence of the oath-belief rule as part of the common law of Australia has not arisen for decision in the High Court. However, in a number of cases, individual Justices have referred to the rule as one of the exceptions to the credit rule. For example, in Goldsmith v Sandilands,[76] McHugh J referred to the rule and cited Richardson in a footnote when listing exceptions to the credit rule[77] and in Nicholls, Hayne and Heydon JJ referred to “evidence of reputation for untruthfulness” as one of the exception to the credit rule.[78][76] (2002) 76 ALJR 1024.[77] (2002) 76 ALJR 1024 at [35].[78] (2005) 219 CLR 196 at [248].Consideration At the level of principle, there is considerable force in the Director’s submissions. It is difficult to justify, in the context of the modern law of evidence, the continuing subsistence of the rule. It is difficult to reconcile the existence of the rule with the opinion rule and the hearsay rule. The approach of the Uniform Evidence Acts, which do not permit a witness to be asked, either as a matter of bald personal opinion or hearsay reputation, whether another witness should be believed upon their oath, suggests that the oath-belief rule would not be incorporated in the modern law of evidence if the matter were approached afresh today.[79] In a trial before a jury, admission of conclusionary and hearsay evidence under the rule may well confuse the jury in those cases in which the jury is directed that other instances of hearsay are not evidence of the truth of the facts asserted and other conclusions have no weight absent identification and establishment of the underlying facts giving rise to the conclusion.[79] Although the law of evidence would not necessarily prevent the adducing of evidence of specific conduct by another witness relevant to the credit of that witness if it was of strong probative value: see [60] above. The defendant does not seek to justify the continuing existence of the rule by reference to contemporary principles, but rather relies upon the existence of the authorities referred to above which he contends preclude this Court from denying its continuing existence. If the matter were approached solely by reference to the principles of the modern law of evidence, there would be much to be said in favour of the inadmissibility of one witness being asked to express a bald opinion, based either on general reputation or personal knowledge, as to whether another witness should be believed upon his or her oath. By contrast, while there are good reasons for the general principle that evidence cannot be adduced from one witness of specific acts or conduct of another witness relevant only to the credit of that other witness, there are also good reasons to permit a discretionary exception to that principle where the credit of that other witness is particularly important to the case and the evidence of the first witness is particularly probative as to the second witness’s credit, in accordance with the decisions of other intermediate courts of appeal referred to at [58] above.