R v JSM - [2016] SASCFC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v JSM
[2016] SASCFC 120
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
4 November 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Appeal against conviction.
The appellant was charged with five counts of sexual offences against his daughter. At a trial in the District Court presided over by a Judge, the appellant was found guilty by a jury of all five counts. On appeal, the convictions were set aside and the matter remitted for retrial because the Judge had upheld a prosecution objection to a question asked in cross-examination of the complainant’s brother under the archaic and little known oath belief rule.
At the outset of the retrial, senior counsel for the appellant made an apprehended bias application to the trial Judge to disqualify himself because the Judge had presided over the original trial. The Judge declined to disqualify himself. The appellant was found guilty by the jury of three counts.
The appellant appeals against his convictions on the ground that the Judge ought to have disqualified himself from presiding over the retrial because the Judge had presided over the original trial or alternatively on a new ground advanced on appeal that the Judge had sentenced the appellant after the first trial to imprisonment for 12 years.
Held by the Court:
1   Consideration of the principles applicable in determining whether a reasonable apprehension of bias arises in respect of a judge presiding over a jury trial (at [32]-[38]).
2   No reasonable apprehension of bias arose because the Judge had presided over the original trial (at [58]).
3   No reasonable apprehension of bias arose because the Judge had previously sentenced the appellant or from the Judge's conduct at the second trial (at [72]).
4   Appeal dismissed (at [73]).
Criminal Law Consolidation Act 1935 (SA) s 49, s 58, s 72, s 353; Evidence Act 1929 (SA) s 34P, referred to.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488; R v Balic (No 2) (1994) 75 A Crim R 515; R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; R v George, Harris and Hilton (1987) 9 NSWLR 527; Re JRL; Ex parte CJL (1986) 161 CLR 342; R v Kearns [2003] NSWCCA 367; R v Papadopolous (2010) 108 SASR 124; Rendulic v Bevan [1971] SASR 340, discussed.
Braysich v R (2011) 243 CLR 434; R v J,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v JSM

Details

AGLC: R v JSM [2016] SASCFC 120
Case: [2016] SASCFC 120
Decision Date: 4 November 2016

CaseChat Overview and Summary

The appellant, R JSM, appealed against his convictions for sexual offences. The central ground of appeal was that the trial judge ought to have disqualified himself from presiding over the trial due to apprehended bias. The complainant's evidence detailed multiple instances of sexual abuse by the appellant, occurring between 2004 and 2008, when she was a minor. The appellant did not give evidence at trial and was convicted on all five counts, receiving a sentence of 12 years imprisonment with a non-parole period of six years.

The legal issue before the Full Court of the Supreme Court of South Australia was whether the trial judge was obliged to disqualify himself on the grounds of apprehended bias. This required the court to consider the test for apprehended bias, which involves determining whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was not impartial.

The court reasoned that the appellant's argument for apprehended bias was not made out. The judge's conduct, as presented in the appeal, did not give rise to a reasonable suspicion of bias. The court applied the established legal principles for assessing apprehended bias, finding that the circumstances did not meet the threshold for disqualification. Consequently, the appeal on this ground was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against his convictions on the single ground that the Judge ought to have disqualified himself at the outset of the trial from presiding over the trial on the ground of apprehended bias. Background The complainant was born in June 1990. When she was 13 years old, her family moved to a country town. The complainant gave evidence at the previous trial that when she was 14 years old (2004) and her mother had left for work one morning, the appellant summoned her to his bedroom and directed her to remove her clothing and stand naked before him. She complied out of fear. This was the subject of count 1. She gave evidence that this was repeated a few times over the next two weeks. The complainant gave evidence that a couple of weeks later, when her mother had left for work one morning, the appellant directed her to remove her clothing and get into bed with him. She again complied out of fear. The appellant began groping her. She resisted by clenching her legs together and attempting to move his hands away. In response, the appellant punched her in the groin, causing her to release her legs. He inserted his finger or fingers into her vagina. This continued for approximately ten to 15 minutes. The complainant cried throughout the ordeal. This was the subject of count 2. The complainant gave evidence that this was repeated about twice a week while they lived at the first country town while her mother was at work. The complainant gave evidence that when she was in year 10 (2005) the family moved to a second country town, where the conduct continued while her mother was at work. On one specific occasion, the appellant knocked on the wall between his and the complainant’s bedrooms and called out her name but she pretended that she could not hear him. The appellant came into her room, stood over her and said that if she did not come into his bedroom it would occur in her bedroom. She followed him into his bedroom. In the appellant’s bedroom, he groped her and inserted his fingers into her vagina. This was the subject of count 3. The complainant gave evidence that in 2005 the family moved to a third country town for three months. On one occasion, the appellant and the complainant returned to the family house in the second country town. The appellant directed the complainant to come into his bedroom and lie on the bed. He pulled off her clothes and had vaginal intercourse with her. This was the subject of count 4. The complainant gave evidence that sexual intercourse was repeated until March 2008. The complainant gave evidence that the last occasion on which the appellant had sexual intercourse with her was on a Friday night in March 2008. This was the subject of count 5. The following night, the appellant told her mother what had been going on. Evidence was also given by the complainant’s brother and mother. The appellant elected not to give evidence. The appellant was convicted of all five counts. In January 2013, the appellant was sentenced to imprisonment for 12 years with a non-parole period of six years.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the new grounds advanced on appeal, the Judge was not obliged to disqualify himself and the appeal on these grounds should be dismissed. Conclusion We dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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