R v M, RS

Case [2018] SASCFC 37

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v M, RS

[2018] SASCFC 37

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Hinton)

11 May 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF CROWN CASE

Appeal against conviction.

The appellant was convicted by a judge sitting alone of one count of persistent sexual abuse of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant was his step daughter, JLM. The abuse occurred between September 1981 and December 1991 commencing when JLM was around eight years of age. The defence case denied that the sexual acts constituting the abuse alleged occurred. Accordingly the success of the prosecution case depended upon the creditability and reliability of JLM.

In advance of the appellant’s trial counsel for the appellant was advised that the prosecution did not intend to call PMM, JLM’s mother and the appellant’s partner, as a witness for the prosecution. PMM had provided the police with two statements which if accepted, were inconsistent with those provided by JLM and undermined her credibility. In particular PMM denied that JLM had twice complained to her about being sexually abused by the appellant. 

Prior to the commencement of the trial the appellant made a formal application that the trial Judge invite the prosecutor to reconsider the decision not to call PMM. The prosecutor explained to the trial Judge that he had met with both JLM and PMM in addition to LID, JLM’s younger sister. The prosecutor said he had no reason to think that JLM was not a witness of truth. He considered that he could not present PMM as a witness of truth explaining that PMM was adamant that her husband had not committed the offence and that JLM had either imagined or made up the allegations. The prosecutor said PMM was available for the defence to call as a witness.

The application was refused and reasons provided for the refusal: R v M, RS [2016] SADC 166. The trial commenced and at the close of the prosecution case the application was renewed. Again the trial Judge refused the application, providing his ruling before the defence case was opened, and his reasons for that ruling some months later, the same day on which the appellant was found guilty: R v M, RS (No 2) [2017] SADC 23.

On appeal the appellant argued that a miscarriage of justice had occurred because of the prosecution’s decision not to call PMM to give evidence. By his second ground of appeal the appellant argued that the reasons of…

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R v M, RS [2018] SASCFC 37
Case
[2018] SASCFC 37
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CaseChat Overview and Summary

The appeal concerned a criminal conviction where the appellant, R v M, RS, sought to challenge the trial judge's decision to refuse a renewed application to have the prosecutor reconsider calling a witness, PMM. The dispute arose from the prosecution's decision not to call PMM as a witness, which the appellant argued led to a miscarriage of justice. The matter was heard in the Court of Appeal, with Peek, Nicholson, and Hinton JJ presiding.

The central legal issue before the Court of Appeal was whether the trial judge's reasons for dismissing the renewed application demonstrated bias, specifically prejudgment of the case. The appellant contended that the trial judge had formed concluded views on the credibility of the prosecution's key witness, JLM, and other supporting witnesses, before the defence case had been presented or addresses had been made. This, it was argued, suggested that the judge had prejudged the reliability of the evidence and therefore could not bring an impartial mind to the application.

The Court of Appeal considered the principles established in *Apostilides*, which govern when a prosecutor's decision not to call a witness can lead to a miscarriage of justice. These principles state that such a decision will only be a ground for setting aside a conviction if, viewed against the conduct of the trial as a whole, it results in a miscarriage of justice, and that the focus is on the consequences of the failure to call the witness, not necessarily on prosecutorial misconduct. The appellant argued that the trial judge's strong pronouncements on JLM's credibility and reliability, and the dismissal of PMM's potential evidence, indicated a prejudgment that disadvantaged the appellant. The respondent countered that the judge's findings were necessary for the application and were provisional, akin to findings made on a voir dire.

The Court of Appeal granted permission to appeal on the first ground, finding that the appellant's argument regarding the trial judge's potential bias had merit. The court indicated that the trial judge's reasons for refusing the renewed application did exhibit a degree of prejudgment concerning the credibility of witnesses, which could lead to a reasonable apprehension of bias and potentially a miscarriage of justice.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 9 March 2018 this Court allowed the appeal and ordered that the appellant’s conviction be quashed and the matter be remitted to the District Court for re-trial. My reasons for joining in those orders follow.Background In a statement given to police dated 21 July 2013, JLM tells how, after being regularly sexually interfered with by the appellant over a period of six to 12 months commencing when she was about eight years of age, she complained to her mother, PMM, who, along with JLM, then confronted the appellant. JLM states that PMM then took the appellant into a bedroom. When they emerged PMM announced to JLM that the appellant was sorry for what he had done and that if he touched her in a way she did not like she should tell him or say ‘no’. The appellant, who was present, reiterated this. In her statement JLM states that the sexual interference then stopped for about a month before recommencing. JLM further states that some six to 12 months later she complained to her mother about the appellant’s conduct a second time. PMM took the appellant into a room somewhere away from her. They then came back and spoke to JLM. JLM states that she cannot remember her mother’s response save that it was unsatisfactory and left her feeling rejected, isolated and unsafe. In her statement JLM also tells of a number of specific incidents of sexual interference at the hands of the appellant. One incident occurred when JLM was in bed with her mother and the appellant. PMM got up inviting JLM to cuddle the appellant who then took the opportunity to sexually assault JLM once PMM left the room. A second incident occurred one night when JLM had complained to PMM of a stomach upset. PMM asked the appellant to take JLM back to bed, to rub her tummy, and settle her. It was whilst rubbing her tummy that the appellant took the opportunity to sexually abuse JLM. A third incident occurred in a shed used by PMM as a darkroom. JLM also tells of incidents during a year-long around Australia caravanning trip that her family took. Whilst the narrative does not suggest that her mother witnessed any of the incidents, or would necessarily know that they occurred, memory permitting, her mother would be able to give evidence confirming such things as timing, location and opportunity, in addition to confirming that the two complaints JLM says she made to PMM were in fact made. In bringing her statement to a conclusion, JLM tells of moving out of home around her eighteenth birthday. She says that subsequently she met her mother for coffee and to get PMM’s help in obtaining government financial assistance. This involved PMM agreeing to provide a statutory declaration declaring that JLM was unsafe at home. JLM says that PMM agreed to do so, but disagreed that JLM had been exposed to sexual abuse as opposed to sexual harassment. Subsequently, in a further statement, JLM advised that she wrote a letter to her mother of five to six pages in length in which she made it clear that the appellant had abused her as she had told her mother twice before. JLM wanted her mother to acknowledge what had occurred. JLM also tells how sometime later her mother proposed that they attend counselling together as PMM considered JLM to have “unresolved issues” regarding the appellant. The same statement tells how JLM has managed her relationship with her mother since leaving home, marrying and having her own family without involving the appellant.

Evidence

Evidence Before The Court

Lastly the trial Judge referred to LID’s evidence which he considered directly and indirectly supportive of JLM’s evidence. LID was, the Judge considered, “truthful, reliable and compelling”.[18] The Judge concluded:[19]As a result none of these further grounds raised by the accused in this fresh R 49 application in any way cause me to change the views formed by me and announced in my decision on the first R 49 application. I consider that the evidence that I have heard in the prosecution case further weakens the diminished credit-worthiness of the denials and assertions of PMM. None of that evidence or the accused’s further submissions leads me to change the views that I formed and expressed about the first R 49 application. My views are confirmed and strengthened by the evidence that I have heard.As mentioned, the Judge dismissed the renewed application.Has a miscarriage of justice occurred because the prosecution did not call PMM to give evidence?[18] R v M, RS (No 2) [2017] SADC 23 at [36].[19] R v M, RS (No 2) [2017] SADC 23 at [37].a. The submissions made in this Court In this Court the appellant’s submissions in support of this ground largely repeated those made before the trial Judge on the renewed application. The basis for the prosecutor’s conclusion that PMM was not truthful was primarily the extent of PMM’s denial of the circumstances in which specific incidents of abuse were said by JLM to have occurred, her denial of JLM having complained to her, and her belief that JLM had fabricated her story, viewed in the light of an acceptance of JLM as truthful. It was not open to the prosecutor to maintain that view, it was contended, bearing in mind that JLM’s handwritten endorsement on exhibit D6 (the excerpt from the book entitled “Growing Through Pain, The Incest Survivor’s Companion”) tended to support PMM’s statements that JLM did not complain to her, that the absence of any reference in JLM’s diary (exhibit D3) to sexual abuse or sexual conduct during the caravanning trip supported PMM’s statement that nothing out of the ordinary occurred on the trip, that LID’s evidence suggested that it was PMM who usually cared for her daughters when unsettled at night, and that LID considered that she grew up in an ordinary family and assumed everything was typical. The result was that the appellant was put in the position where he had to consider calling PMM with the consequence that he would lose, and the prosecution would gain, the opportunity to cross-examine PMM. Counsel put the disadvantage caused to the appellant by the prosecutor’s decision as follows:… the real problem is the ability of the prosecution to cross-examine and the difficulty that arises there is inevitably the prosecutor will cross-examine the witness and put to them that what they say about the complaint or a point is not true. They are lying about that.They will then more than likely go the next step and speculate or contemplate why they are lying about that. ‘You’ll do anything to keep your husband. You’re prepared to abandon your daughter in order to keep your husband. You’re coming here to say whatever’. That is the course that is adopted.

Decision

Reasons for decision

PEEK J NICHOLSON J HINTON J
I would grant permission to appeal on the first ground, and uphold that ground.Did the reasons of the trial Judge for refusing the renewed application exhibit bias in the form of prejudgment?a. The submissions made in this Court This ground of appeal concerns findings made by the trial Judge in the course of his reasons for refusing the appellant’s renewed application that the Judge invite the prosecutor to reconsider calling PMM. The starting point for the appellant’s argument in support of this ground of appeal was the fact that whilst the prosecution had purported to close its case, no indication had yet been given as to whether there would be a defence case at all or including PMM, and addresses had not occurred. The next step in the argument was the observation that the reasons, although handed down on 17 March 2017 (being the same date as the reasons for finding the appellant guilty were published), are drafted on the basis that they contain the decided view held as at the time of the ruling. The appellant then made the observation that the success of the prosecution case depended upon the credibility and reliability of JLM. Against this background the appellant pointed to the statements of conclusion contained in the judgment concerning the credibility and reliability of JLM and, to a lesser extent, LID. None of those statements are framed in terms suggesting that the findings were provisional. To state then that JLM and LID gave their evidence in a “frank, forthright and honest way”, that they impressed as “witnesses of truth who were reliable and credible”, that JLM’s evidence as to why her diary contains no mention of sexual conduct was truthful, reliable, cogent, compelling and that she was not shaken in cross-examination, and that JLM’s evidence as to the appellant on occasion putting her back to bed as a child was likewise reliable and credible before knowing if there was to be a defence case and before addresses, was to prejudge the case. In the course of determining whether PMM was credible and reliable in her statements and rejecting her as such, the Judge brought to bear his view as to the credibility and reliability of JLM and LID, again suggesting a concluded view as to the credibility and reliability of JLM and LID. The appellant contends that if the Judge has not pre-judged the issue then, in the alternative, there arises a reasonable apprehension that he might not bring an impartial mind to doing so. The respondent submitted that the trial Judge’s reasons did not reveal bias nor give rise to any apprehension of bias. The respondent’s submission was predicated on the assumption that the trial Judge made findings necessary to the renewed application. In such circumstances, it was said, the findings are no different to those which can arise on a voir dire in a trial by Judge alone where the Judge is then required to put the same out of his or her mind in determining guilt. It was added that the reasons betray no prejudgment of the question of guilt or innocence but are confined to the application made. In any event the Judge noted at the outset that the views he expressed were arrived at “without being aware of whether the accused intends to give evidence or to lead any evidence” indicating in effect that such views were provisional. b. Bias

Ratio Decidendi

Legal Principle Established

Established by: PEEK J, NICHOLSON J, HINTON J

In Apostilides the High Court reduced the applicable principles in this area of discourse to the following six propositions:[51][51] (1984) 154 CLR 563 at 575. See also Diehm v DPP (Nauru) (2013) 88 ALJR 34 at [64] (French CJ, Kiefel and Bell JJ).1.The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.2.The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which led the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.3.Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.4.When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.5.Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.6.A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.The Court was also concerned to point out that:[52]In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness. Nevertheless, the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. Whitehorn was regarded as such a case, by some at least of the members of the Court who took part in that decision. The absence, for whatever reason, of any evidence from the complainant was the basic reason, in the light of such evidence as was called, for the Court's conclusion that the verdict was unsafe and unsatisfactory. So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory.[footnotes omitted][52] The Queen v Apostilides (1984) 154 CLR 563 at 577.c. Consideration