R v LOWEN - [2004] SASC 209

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v LOWEN
Judgment of The Honourable Justice Gray
16 July 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - PROOF, EVIDENCE AND PROCEDURE
Application for leave to appeal against conviction - applicant convicted of three counts of unlawful sexual intercourse with a person under 12 years old - at the time of the offending, the applicant was living at the same home as the victim, her mother, B, and sister D - the applicant was in a sexual relationship with D at the time - the proposed grounds of appeal were that the trial judge erred in ruling that the applicant was not permitted to cross-examine the complainant on an alleged prior sexual relationship and that the trial judge erred in not staying the trial or further adjourning it until the defence could locate D so as to have her give evidence - consideration of section 34I of the Evidence Act 1929 (SA) - applicant failed to establish that the trial judge erred in ruling that the applicant was not permitted to cross examine the complainant about an alleged sexual relationship - trial judge not in error in refusing the applicant’s application for a stay - application for leave to appeal refused.
Evidence Act 1929 (SA) s 34l, referred to.
R v Gray (1977) 17 SASR 534; R v DeAngelis (1979) 20 SASR 288, considered.

R v LOWEN
[2004] SASC 209
Application for Leave to Appeal

GRAY J: This is an application for leave to appeal against conviction.[1]
[1] The applicant also filed an application for extension of time to give notice of this application for leave to appeal.
On 14 October 2002 the applicant pleaded not guilty to three counts of unlawful sexual intercourse with a person under 12 years old. On 5 February 2004 the applicant was convicted by a jury on all counts. On 8 March 2004 the applicant was sentenced to imprisonment for 10 years with a non parole period of five years.
The offending occurred between 1 January 2002 and 28 May 2002. At the time of the offending, the applicant was living at the same home as the victim, her mother, B, and sister D. The applicant was in a sexual relationship with D at the time.
The following proposed grounds of appeal were advanced:
-That the trial judge erred in ruling that the applicant was not permitted to cross-examine the complainant on any sexual relationship with Garth Westell; and
-That the trial judge erred in not staying the trial or further adjourning it until the defence could locate the complainant’s sister D so as to have her give evidence.
The Crown opposed leave on both grounds.
Cross Examination of the Complainant
At trial, counsel for the appellant applied under section 34I of the Evidence Act 1929 (SA) to cross examine the complainant as to her relationship with Mr Wessell. It was alleged that that relationship was sexual in nature as both the complainant and Mr Wessell had suffered from genital warts. The trial judge refused this application on the grounds that no sufficient evidentiary basis had been demonstrated.
Subsequently, Mr Wessell was subpoenaed to attend court and was represented. Counsel for Mr Wessell submitted that Mr Wessell had never suffered from genital warts and had never been in a relationship with the complainant. After this attendance at court, the applicant indicated that he did not intend to call Mr Wessell to give evidence. The application to cross-examine the complainant was not renewed.
Counsel for the Crown contended that the trial judge’s refusal to grant the application was appropriate in the circumstances. Section 34I of the Evidence Act 1929 (SA) provides that questioning of an alleged victim of sexual offending about his or her sexual activities is to be prohibited unless leave is obtained. Section 34I(2) provides that leave should only be granted where the evidence:
(a) is of substantial probative value; or
(b) would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim,
and that its admission is required in the interests of justice.
It was said that in the present case, counsel for the applicant failed to establish a sufficient evidentiary basis for the cross examination. The proposed questioning was unlikely to produce any evidence of probative value.[2]
[2] R v Gray (1977) 17 SASR 534; R v DeAngelis (1979) 20 SASR 288
An Adjournment to Allow a Witness to be Subpoenaed
In relation to the second ground of appeal, counsel for the applicant submitted that the applicant consistently instructed counsel that he wanted D called to give evidence. The applicant was of the opinion that her evidence would be at odds with the evidence of the complainant on topics of key importance.
It was said that the prosecution also intended to call D as a witness. Efforts were made by both counsel at trial to attempt to locate D. It was submitted that the applicant provided police with information to assist them in endeavouring to locate her. Counsel for the applicant contended that, despite the applicant’s attempts to provide contact details for D and police attempts to locate her, the trial judge declined to order a stay of proceedings or further adjourn the proceedings.
Counsel for the Crown submitted that the trial judge did not err in failing to adjourn the trial to enable inquires to be made as to Ds whereabouts to ensure that she attend court to give evidence. It was said that D was not named on the back of the information as a Crown witness and, at the time of the commencement of the trial, the Crown was not in possession of a statement from her. Rather, there was evidence that despite numerous efforts by the police, D had refused to provide a statement.
Counsel for the Crown submitted that telephone contact was made between D and the applicant during the first day of the trial. It was said she provided him with information in relation to the application to cross examine the complainant about her relationship with Mr Wessell. It was further submitted that on 30 January 2004 D attended court and provided police with a statement. At that time it was foreshadowed that the Crown intended to call her to give evidence.
On 2 February 2004 D failed to attend court. The trial was adjourned to allow enquiries to be made. Despite attempts by police to locate D, she failed to attend court the following day. The applicant made an application for a stay on the basis of D’s non attendance. The trial was adjourned for 24 hours to enable further enquires to be made. When the trial resumed, D had not been located and did not attend court. No further application was made for a stay or adjournment.
Counsel for the Crown submitted that the approach adopted by the trial judge was appropriate in the circumstances. It was said that sufficient time was given to the applicant and the prosecution to attempt to locate the witness. It was further contended by counsel for the Crown that no basis has been made out by the applicant that the absence of D’s evidence led to a miscarriage of justice.
The hearing of this application was adjourned to enable the applicant to obtain a statement from D to support this ground of appeal. No such statement was obtained and no information was proffered as to what evidence she could or would give.
Conclusion
This application for leave to appeal is dismissed. The applicant has failed to establish that the trial judge erred in ruling that the applicant was not permitted to cross examine the complainant about an alleged sexual relationship with Mr Wessell. No basis for such cross examination was provided by the applicant at trial. The trial judge’s application of section 34I of the Evidence Act was appropriate in the circumstances.
The second ground of appeal is also unfounded. The trial judge was not in error in refusing the applicant’s application for a stay. Sufficient time was provided to both counsel at trial to make enquiries as to D’s whereabouts. Attempts were made to locate her. These attempts were unsuccessful. No evidence has been provided to establish that the absence of D’s evidence led to a miscarriage of justice.