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.

This is an appeal against conviction.
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.
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…

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 Kinnear

Details

AGLC: R v Kinnear [2014] SASCFC 30
Case: [2014] SASCFC 30
Decision Date: 4 April 2014

CaseChat Overview and Summary

In R v Kinnear, the appellant appealed against a conviction for an offence. The appeal concerned the reliability of the complainant's evidence, particularly in light of her mental illnesses and prior inconsistent statements. The appeal was heard by Gray, Kelly, and Stanley JJ in the appellate court.

The central legal issue before the court was whether the trial judge erred in concluding that the proven inconsistencies in the complainant's evidence did not affect her reliability, thereby rendering the verdict unsafe and unsatisfactory. The court was required to determine if the cumulative effect of the complainant's mental health, significant prior inconsistent statements, and the trial judge's assessment of this evidence justified setting aside the conviction.

The appellate court found that the trial judge's conclusion regarding the complainant's reliability could not be sustained. While acknowledging there was no suggestion the complainant was untruthful, the court highlighted that her capacity to be a reliable historian was demonstrably affected by her mental illnesses and significant prior inconsistent statements. The court also noted that the prosecution's tendering of hospital records and agreed facts concerning the complainant's mental state was not sufficiently explained by a witness, thus failing to adequately assist the trier of fact in assessing how her mental state impacted her perception and recollection. The court concluded that the trial judge placed inappropriate weight on certain evidence and did not adequately reconcile the numerous inconsistencies in the complainant's evidence, some of which went to the heart of the allegations. Consequently, the conviction was set aside, and the matter was remitted to the District Court for retrial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

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 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. 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. 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. 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. 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. 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. 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. 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. 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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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