R v Kinnear

[2014] SASCFC 30

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v KINNEAR

[2014] SASCFC 30

Reasons for Decision of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Kelly and The Honourable Justice Stanley)

4 April 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED

Appeal against conviction.  The defendant and appellant was convicted following trial by Judge alone of the offence of rape.  A primary issue at trial was whether the Court could conclude that the complainant's evidence was reliable.  A number of factors were said to demonstrate that her evidence was unreliable, including the complainant’s mental health issues, evidence of distress, inconsistencies between evidence of the complainant and that of her father, the use of the alleged initial complaint, and prior inconsistent statements of the complainant.  The Judge found the complainant to be a credible and reliable witness. 

Whether the Court could conclude that the complainant’s evidence was reliable.

Held per Gray J (Kelly and Stanley JJ agreeing) (allowing the appeal):

(1)  While no oral expert evidence had been led by either party, the final separation report from the Glenside Campus Mental Health Hospital contained psychiatric opinion.  The Judge proceeded on a misunderstanding as to the effect of the medical evidence before the Court.  The Judge's conclusion that the complainant's mental illness did not affect her capacity to give reliable evidence was flawed.

(2)  The conclusion that the complainant's father's evidence supported the complainant's allegation cannot stand as the Judge was not prepared to reject the complainant’s evidence on the topic as unreliable.  The Judge's acceptance of the father's evidence was no more than a bare conclusion without reasons.

(3)  The conclusion that the suggested complaint buttressed the complainant's credibility cannot be sustained.  At best, the evidence was neutral on this topic.

(4)  The Judge's conclusion that the prior inconsistencies did not affect the complainant's reliability cannot be sustained.

(5)  The cumulative effect of the above renders the verdict unsafe.  The capacity of the complainant to be a reliable historian was affected by a number of matters.  Appeal allowed, finding of guilt set aside and matter remitted for retrial.

Bromley v The Queen (1986) 161 CLR 315, considered.

R v KINNEAR
[2014] SASCFC 30

Court of Criminal Appeal:       Gray, Kelly and Stanley JJ

GRAY J.

1. This is an appeal against conviction.

2. At the conclusion of the hearing of the appeal, the members of the Court indicated that they were unanimously of the view that the appeal should be allowed, the finding of guilt set aside and the matter remitted for a retrial.

3. The defendant and appellant, John Steven Kinnear, was charged with the offence of rape said to have occurred on 18 August 2011.  The particulars of the charge were: 

   [The defendant] on the 18th day of August 2011 at Hectorville, engaged or continued to engage in sexual intercourse with [the complainant] without her consent, by inserting his penis into her vagina, knowing that she was not consenting or being recklessly indifferent to the fact that [the complainant] was not consenting.

   Following the defendant’s election, the trial proceeded before a Judge of the District Court without a jury. 

4. The evidence and submissions extended over two days.  The prosecution led evidence from the complainant, her father and an investigating police officer.  A number of exhibits were tendered as a part of the prosecution case, including a floor plan and photographs of the premises at Hectorville, two statements of agreed facts and a discharge summary of the complainant from Glenside Campus Mental Health Hospital.  The defendant did not give evidence at the trial or lead any other evidence. 

5. Reasons for verdict were delivered on 20 December 2013.[1]  The Judge found that the prosecution had proved the elements of rape beyond reasonable doubt and found the defendant guilty as charged.

   [1]    R v K, JS [2013] SADC 177.

6. The complainant and the defendant met while inpatients at Glenside.  They became friends and a sexual relationship developed.  This continued following the complainant’s discharge from hospital.  The alleged offending occurred several months later.  As noted above, it was the defence case that consensual sexual intercourse had taken place.  A primary issue in the trial was whether the Court could conclude that the complainant’s evidence was reliable.  A number of factors were said to demonstrate that her evidence was unreliable.  One of those factors concerned the complainant’s mental health and, in particular, the significance of evidence that she suffered from a major depressive illness with psychotic features.  It was said that the psychotic features included hallucinations and delusions and that the complainant had experienced these matters at or about the time of the alleged offending.  As a consequence, it is convenient to summarise the evidence concerning the complainant’s mental state.

   Mental Illness

7. The complainant, aged 42 years at the time of the trial, had a history of recurrent depression and generalised anxiety.  She had for some time been treated with antidepressants.  She had been diagnosed with normal pressure hydrocephalus in 2005 and had received treatment from both a neurologist and a neurosurgeon.  Her condition in April 2011 was stable.  She was, at this time, unemployed.  On 6 May 2011, she had taken an overdose of medication and was taken by ambulance to the emergency department at the Royal Adelaide Hospital.  She gave a history that she wanted to end her life because she had had enough of her current situation.  She reported that during the previous two weeks, she had felt that her ex-partner was listening to her conversations and was keeping her under surveillance through a camera installed in her bathroom exhaust fan.  She thought that he was monitoring her activities through a computer and bugging her phone.  She also reported seeing two angels sitting on her shoulders at times when she was distressed.  Following admission, she was treated with medications, including anti-psychotic medication.  It was considered that on her release, medication alone would not be sufficient to manage her mental problems and that she would require the input of her psychologist following discharge.  She was discharged on 8 June 2011.  At that time, the principal diagnosis was that the complainant suffered from major depression with psychotic features with several complications, including a generalised anxiety disorder.  A number of secondary diagnoses were made, including the suffering of cognitive deficits secondary to the diagnosis of normal pressure hydrocephalus. 

8. On 4 July, medical reports indicate that the complainant was continuing to take anti-psychotic medication.  At that time, she reported to the consultant in charge of her treatment at Glenside that she had been hearing voices of women whispering to her for two days. 

9. On 15 September 2011, the complainant informed a medical practitioner that she had resumed drinking in recent months, consuming three to six drinks most days, the drinks being vodka and coke. 

10. On 18 August 2011, the complainant met with the defendant at his home.  In the evening, the two travelled to and were present at the residence of the complainant when the incident giving rise to the charge was said to have occurred.  That incident consisted of an act of penile vaginal intercourse, on the prosecution case, against the protestations of the complainant.

11. On 23 August 2011, the complainant was admitted to the Royal Adelaide Hospital and spoke to a senior psychiatric registrar.  The complainant stated that “there is a guy who is a drug abuser and mentally ill person who has recently raped her twice”.  The complainant had no recollection of this conversation.  On the same day, the complainant informed a social worker that she thought her ex-partner was listening to her conversations.  The complainant informed another social worker that she took 10 antidepressants with half a bottle of vodka as a response to feeling rejected by a male friend who had arranged to go on a holiday with her and had then gone without her and subsequently contacted her in the company of another woman. 

12. On 24 August 2011, the complainant told another social worker that for the last four weeks she had been having visual hallucinations of a small, black dog. 

13. There was material before the Court that the defendant suffered from a chronic schizoaffective disorder.  The Judge, in her reasons, noted:[2]

    The accused suffers chronic schizoaffective disorder. Prior to trial an issue arose regarding the mental competence of the accused to stand trial.

    A psychiatrist, Dr Craig Raeside, assessed the accused regarding his fitness to plead and stand trial.  In his report dated 3 July 2013, Dr Raeside reported that on the basis of his recent assessments of the accused, he believed the accused’s mental state had settled.  He stated that he continued to suffer from chronic schizoaffective disorder but the features of acute relapse were not present.  On the basis of his presentation at the time of Dr Raeside’s assessment, Dr Raeside considered he was fit to plead and to stand trial.  As there was no further concern raised regarding the accused’s mental competence, the trial proceeded.

    [2]    R v K, JS [2013] SADC 177, [3]-[4].

14. In her reasons for verdict, the Judge commenced with background observations in which she noted the principal diagnosis made in respect of the complainant of a major depressive state with psychotic features and that she had a history of depression and generalised anxiety.  The Judge noted that the complainant was being treated with antidepressant and antipsychotic medication. 

15. The Judge summarised the prosecution case of the rape in the following terms:[3]

    At about 9.00pm that night, the accused and M were at the back of her home.  The accused became verbally abusive towards M and proceeded to threaten her with a crowbar and a broken broom handle.  The accused told M that “he was going to fuck [her]”, took hold of her and pulled her into the bedroom in the house.  The accused directed M to undress and he then pushed her onto the bed.  The accused climbed on top of M and proceeded to have vaginal sexual intercourse with her.

    Prior to having intercourse, M told the accused that she did not want to have sex and repeatedly told the accused “Please stop this” and “can you please stop”.  The accused ejaculated and at the conclusion of intercourse M saw him wipe his genitals using a towel she kept on a heater in her bedroom.  Subsequent forensic analysis of the towel by an expert detected two complete DNA profiles which matched the accused’s DNA profile.

    [3]    R v K, JS [2013] SADC 177, [10]-[11].

16. At trial, the defence argued that the complainant suffered mental illness, in particular, a depressive illness with psychotic features, that this illness had the capacity to affect her reliability as a witness and that her evidence was, having regard to this factor and other matters arising in the trial, inherently unreliable. 

17. The Judge noted the observations of the High Court in Bromley[4] and then gave herself a direction in the following terms:[5]

    I direct myself that if I find M’s mental illness may affect her capacity to give reliable evidence, I must approach her evidence with considerable caution and scrutinise her evidence with special care. I bear in mind that I may act on her evidence if I am convinced of its accuracy and I warn myself of the possible danger of acting on her evidence if it is not confirmed by other evidence.

    In making the findings on this topic, the Judge said, “I do not find [the complainant’s] mental illness affects her capacity to give reliable evidence”.  Later in her reasons, her Honour said “I make it clear that I am satisfied beyond reasonable doubt, having scrutinised M’s evidence in accordance with the decision in Bromley, that M’s mental illness does not affect my assessment of her as a credible and reliable witness.”

    [4]    Bromley v The Queen (1986) 161 CLR 315.

    [5]    R v K, JS [2013] SADC 177, [21].

18. On the appeal, the defendant submitted that the Judge had failed to make any adequate or sufficient findings concerning the complainant’s mental illness.  It was pointed out that there was undisputed expert medical evidence concerning the complainant’s mental state, being a final separation summary from Glenside.  This summary noted that the complainant had been an “Acute Inpatient” under the care of a consultant, Dr Asokan, and provided a principal diagnosis, a statement of complications and a secondary diagnosis.  It also provided a detailed history under the heading “clinical synopsis” and set out a management plan for the complainant, together with a follow-up management plan.

19. The Judge, in her reasons, made reference to the Glenside separation discharge summary and noted the principal diagnosis as well as some of the contents of that summary.  However, it appears that the Judge took the view that no expert psychiatric opinion had been called in the proceeding.  It is to be accepted that no oral expert evidence had been led by either party, however the final separation report from Glenside contained psychiatric opinion and, in particular, a relevant primary and secondary diagnosis, together with a detailed history and management plan.  The effect of that evidence was that the complainant suffered from a major depressive illness with psychotic illness and also suffered cognitive impairment as a result of hydrocephalus. 

20. As noted above, the Judge also had, by way of agreed facts, the detail of reports made by the complainant to social workers of suffering hallucinations and delusions during the time of the alleged offending.  It appears that the Judge had a misunderstanding as to the effect of this evidence as she notes in the course of her reasons with apparent acceptance that “it was submitted that there is no suggestion of [the complainant] having experienced hallucinations or hearing voices in the weeks leading up to the date of the offending on 18 August 2011”.  This is incorrect.  It was an agreed fact that on 24 August 2011, the complainant reported to a social worker that for the last four weeks she had been having auditory hallucinations of two women talking in whispers but was unable to distinguish any words.  On the same date, she informed the social worker that for the last four weeks she had been having visual hallucinations of a small, black dog.  It is also to be noted that the evidence established that from the time of her admission as an inpatient to the time of the offending, she was taking anti-psychotic medication.

21. In my view, the Judge proceeded on a misunderstanding as to the effect of the medical evidence before the Court.  As a consequence, the Judge’s conclusion that the complainant’s mental illness did not affect her capacity to give reliable evidence was flawed.  At the relevant time, at the very least, it was probable that the complainant’s capacity to give reliable evidence was impaired as a consequence of her mental illness.  It would have been of assistance to the Judge to have expert evidence on the question of the effect of the mental illness on the reliability of the complainant as an historian.  However, the Glenside material was tendered by the prosecution.  The Judge’s understanding concerning the ongoing nature of the hallucinations and delusions is another important misunderstanding. 

22. There were several other matters, which it was submitted were relevant to the question of the complainant’s reliability on which it was said the Judge was in error. 

    Distress

23. It was the complainant’s evidence that for some time following the complainant’s discharge from Glenside the defendant would, by agreement, come to her home and stay over.  On these occasions, consensual sexual intercourse would often take place.  The defendant would wish to stay for several days and the complainant would want him to leave, but she would be unable to persuade him to go.  When this problem arose, it was her evidence that telephone contact would be made with her father.  She described her father as having a good rapport with the defendant and he would speak to the defendant who would then agree to leave.  Often the complainant’s father would then drive the defendant to a bus stop.  This occurred, according to the complainant, on about five occasions prior to the alleged offending.  In substance, on each occasion, she would tell the defendant that he had to go, he would not and her father would then attend and the problem would be resolved. 

24. The complainant’s evidence was that on the morning following the alleged offending, the complainant’s father was telephoned and on his arrival the complainant said that the defendant has “got to go”.  Following some discussion between the defendant and the father, the defendant left.  On the complainant’s evidence, when the father arrived, she was in the hallway.

25. The father’s evidence stood in stark contrast.  He spoke of his attendance as being an isolated event.  He said that he had asked the accused to leave on another occasion a couple of months after the alleged offending.  On his account, when he arrived, the complainant was lying in a foetal position on the bed and said the defendant had to go.

26. The Judge, in the course of her reasons, summarised the father’s evidence, noted that he had denied in cross-examination that he had asked the accused to leave on five earlier occasions, and then simply concluded that she accepted the father’s evidence.  The Judge did not discuss the stark contrast between the evidence of the complainant and that of her father.  Elsewhere the Judge expressed the view that the complainant was a reliable witness.

27. This is an important matter as an acceptance of the father’s evidence would demonstrate a significant lack of reliability in the complainant’s evidence.  Further, on the complainant’s account, the reference to the defendant having to go is entirely consistent with conduct on other occasions when there had been consensual sexual intercourse.  There is also the other significant difference that the complainant said she was in the hallway when her father arrived, whereas the father’s evidence was that she was in a foetal position on the bed.

28. In her conclusions, the Judge observed that the father’s evidence about being concerned about the complainant when the defendant rang him, finding the complainant in the foetal position and that the complainant said “he’s got to go” supported her allegation.  In my view, this conclusion cannot stand unless the Judge was prepared to reject the complainant’s evidence on the topic as completely unreliable.  The Judge did not do this.  The Judge’s acceptance of the father’s evidence was no more than a bare conclusion without reasons. 

    Complaint

29. It was the prosecution case that the complainant made a complaint about the incident when she spoke to a psychiatrist on her admission to the Royal Adelaide Hospital on 23 August 2011.  The complainant had no memory of making any complaint, however, it was common ground that she spoke to a psychiatrist, saying that “there is a guy who is a drug abuser and a mentally ill person who has recently raped her twice”.  It is to be accepted that the initial complaint showed some consistency on the topic of the complainant having been raped.  However, it is difficult to relate the complaint to the incident the subject of the charge.  The charge referred to one act of rape and the complainant was firm in her evidence that there was just the one incident.  In these circumstances, it was difficult to understand what weight could be given to the complaint.  Was she speaking of the defendant and what was to be made of the allegation of being raped twice? 

1. In the course of submissions, counsel for the prosecution put to the Judge that the statement about being raped twice was made “in circumstances where [the complainant is] full of drugs and in circumstances where the complainant doesn't even remember making that complaint”.  The assertion by the prosecution that the complainant was full of drugs was supported by the evidence.  On 15 September 2011, the complainant had told a doctor that she had resumed drinking in recent months, that she drank most days and that she had three to six drinks a day, being vodka and coke.  On 23 August 2011, the complainant told a social worker that she had taken 10 zolpidem with half a bottle of vodka in response to feelings of rejection by a male friend, not the defendant, who had arranged to go on a holiday with her and then went without her and contacted her while in the company of another woman.  Further, it is apparent that throughout the relevant period, the complainant was reporting hallucinations and delusions, notwithstanding that she was continuing to take anti-psychotic drugs. 

2. The Judge concluded that the suggested complaint buttressed the complainant’s credibility.  In my view, when regard is had to the foregoing, this conclusion cannot be sustained.  At best, the evidence was neutral on this topic.

   Prior Inconsistent Statements

3. A further matter for complaint raised on the appeal concerned what were said to be marked inconsistencies between the complainant’s evidence and her out of court statements.  A number of prior inconsistent statements had been made to the police.  The Judge, without any particularity, concluded that there were apparent inconsistencies but that they were not of such significance to affect her reliability.  It is to be pointed out that there were prior inconsistent statements made to persons other than the police.  The Judge did not appear to address these inconsistencies at all. 

4. One prior inconsistent statement made to the police is of particular significance as it relates to circumstances occurring at the time of the alleged offending.  On 24 December 2011, the complainant told the police that as a prelude to the offending, the defendant had been swinging a crowbar and broom at her but then went inside and went to sleep.  In her evidence, the complainant, when speaking of the incident, spoke of the defendant threatening her with the crowbar and broom, followed by the alleged rape.  She denied telling the police that he then went inside and went to sleep.  The Judge’s conclusion that this was a prior inconsistent statement of not such significance to affect the complainant’s reliability, in my view, cannot be sustained.

5. Counsel for the defendant drew attention to six inconsistencies between the complainant’s evidence and the agreed facts.  When viewed individually, these matters may not have been of significance, but collectively it was said materially supported the submission that the complainant was not a reliable witness.  These inconsistencies involved the complainant not recalling the matters that were agreed.  Counsel drew attention to the marked difference between the manner in which the complainant gave evidence in chief and when under cross-examination.  Counsel pointed out that the complainant experienced minimal difficulty in memory in evidence in chief, whereas in cross-examination a different presentation developed. 

6. Counsel also drew attention to five inconsistencies between the complainant’s evidence and prior statements.  Two of those concerned the allegation of the complainant being raped twice and the issue concerning the crowbar and broom.  Two concerned statements she made in August and September about her drinking practices.  The final matter related to her delusion that her ex-partner was bugging her phone.  I have already dealt with the matters of the complaint of two rapes and of the crowbar and broom incident.  The inconsistency concerning where the complainant was found the following morning by her father adds support to the submission that the complainant could not be treated as a reliable historian. 

7. The above analysis, in my view, demonstrates that the Judge’s conclusion that the proven inconsistencies did not affect the complainant’s reliability cannot be sustained.

   Conclusion

8. The cumulative effect of all of the above renders the verdict unsafe.  Together, an overwhelming case is made for setting aside the finding of guilt.

9. A proper consideration of the materials before the Court demonstrates that the capacity of the complainant to be a reliable historian was affected by a number of matters.  There was no suggestion before this Court that the complainant was untruthful, but that rather, given her mental illnesses, she was unreliable.  This was demonstrated in part by the significant prior inconsistent statements.  It is to be further noted that the Judge placed inappropriate weight on the suggested complaint and the complainant’s father’s evidence.  However, it does not follow that the evidence of the mentally ill complainant could not be accepted.  A trier of fact, properly considering all matters, might still conclude that notwithstanding the above, the complainant was a truthful and materially accurate historian.  For these reasons, it was appropriate to remit the matter for retrial.

   KELLY J.

10. I agree that the conviction should be set aside and that this matter should be remitted to the District Court for retrial.  I agree with the reasons of Gray J.

11. I would however add the following comments.  The prosecution’s tendering of hospital records and agreed facts as evidence relevant to the complainant’s mental state at crucial times was, without more, not particularly helpful to the trier of fact.  This is because no witness was called to explain any of this material, or how the complainant’s mental state may have impacted on her perception and recollection of relevant events. 

12. I agree with Gray J that, at the very least, this material raised a real issue as to the complainant’s reliability and accuracy as an historian of relevant events which called for a very careful examination of her evidence. 

13. It is not apparent from the trial Judge’s reasons how her Honour reconciled the many inconsistencies in the complainant’s evidence and reached the conclusion that none of them were important. 

14. Some of the inconsistencies went to the heart of the allegations made by the complainant.  In a trial which raised very sensitive issues in relation to the mental state of both the appellant and the complainant, I consider more was required from the trial Judge.

15. STANLEY J:         I would allow the appeal, set aside the conviction and remit the matter to the District Court for retrial.  I agree with the reasons of Gray J and the further reasons of Kelly J. 

16. I merely wish to add that the issues raised on appeal concerning the reliability of the complainant should not be construed as an indication that the evidence of a complainant or witness suffering from a psychiatric illness necessarily is unreliable.  On the contrary, depending on the condition of the individual at the relevant time there is no reason why a court should not be satisfied as to the reliability of such a witness and act upon such evidence.  Indeed on the retrial of this matter the trial judge might be persuaded beyond reasonable doubt of the offence alleged on the basis of the complainant’s evidence.  This case merely demonstrates that each case must be considered on its own facts and circumstances.