R v P, S

Case [2016] SASCFC 97

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v P, S

[2016] SASCFC 97

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)

1 September 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT

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

Application for permission to appeal against conviction. The applicant is an Australian citizen. The applicant and the complainant were married in December 2011. In December 2012, the complainant came to Australia on a two year spousal visa and, if she were still to be married at the end of that two year period, she could make an application for permanent residency in Australia. The applicant and complainant subsequently separated. In September 2014, the applicant informed government authorities by email that the couple had separated and that he would be withdrawing his sponsorship of the complainant. The applicant emailed the complainant, advising her that he had informed the government authorities that he has withdrawn his sponsorship. The next day the complainant went to the police and made allegations of rape against the applicant to the police. The applicant was charged with five counts of rape of the complainant and was subsequently found guilty on all counts by verdict of a jury.

At trial, the prosecution opened to the jury on the topic of prior complaints made to two different women.  Evidence purporting to qualify as complaint evidence was led from the complainant and one of the two recipients. At the end of the trial during the Judge’s summing up, the purported complaint evidence was withdrawn from the jury and they were directed to ignore it. 

Whether the Judge had erred in permitting the prosecution to open on and to lead the purported complaint evidence – Whether the Judge misdirected the Jury on the issue of complaint evidence – Whether the Judge misdirected the Jury on the topic of motive to lie – Whether the Judge misdirected the Jury on the issue of good character evidence of the applicant.

Held per Nicholson and Lovell JJ (Parker J agreeing):

1.  Permission to appeal granted.

2.  Appeal allowed.

3. Not only was the "complaint" evidence concerning the first recipient not admissible in accordance with the requirements of section 34M of the Evidence Act 1929, it was, for other reasons, highly prejudicial. No direction could have prevented a miscarriage of justice.

4.  The verdicts on all five convictions are set aside and the matter is remitted to the District Court for a new trial.

Criminal Law Consolidation Act 1935 (SA) s 48; Evidence Act 1929 (SA) s 34M, referred to.
R v Landmeter [2015] SASCFC 3, (2015) 121 SASR 522; Melbourne v The Queen [1999] HCA 32, (1999) 198 CLR 1,…

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R v P, S [2016] SASCFC 97
Case
[2016] SASCFC 97
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal against convictions for sexual offences. The appeal was heard by Nicholson, Parker and Lovell JJ of the Supreme Court of South Australia, Court of Criminal Appeal.

The central legal issues before the Court were the admissibility of complaint evidence in sexual offence trials, particularly in light of section 34M of the *Evidence Act 1929* (SA), and whether the improper admission of such evidence constituted a miscarriage of justice. The Court was required to determine the proper application of section 34M, which governs the admissibility of evidence relating to complaints made by alleged victims of sexual offences, and to assess whether the jury's verdict may have been affected by the evidence that was ultimately withdrawn.

The Court considered the principles distilled from its previous decisions regarding complaint evidence under section 34M, noting that the admissibility of evidence as an "initial complaint" depends on a close examination of the facts, including to whom the complainant spoke, when, and what was said. The Court found that the adduction of complaint evidence, even though subsequently withdrawn from the jury, gave rise to a miscarriage of justice because there was a reasonable possibility that this evidence may have affected the verdict.

Consequently, the Court granted permission to appeal, allowed the appeal on the basis of the first ground, set aside all five convictions, and remitted the matter to the District Court for a new trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 34M of the Evidence Act 1929 (“the Act”) was enacted in 2008. It deals with complaint evidence in sexual cases and provides as follows:34M—Evidence relating to complaint in sexual cases(1)This section abolishes the common law relating to recent complaint in sexual cases.Note—See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.Examples—Evidence may be given by any person about—• when the complaint was made and to whom;• the content of the complaint;• how the complaint was solicited;• why the complaint was made to a particular person at a particular time;• why the alleged victim did not make the complaint at an earlier time.(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—(a) it is admitted—(i) to inform the jury as to how the allegation first came to light; and(ii) as evidence of the degree of consistency of conduct of the alleged victim; and(b)it is not admitted as evidence of the truth of what was alleged; and(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).(6)In this section—complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).The approach to be adopted in relation to complaint evidence has been discussed in depth by this Court in recent cases.[8] A number of principles can be distilled from those cases.[8] For example, R v S, DD [2010] SASCFC 80; (2010) 109 SASR 46, R v Maiolo (No 2) [2013] SASCFC 36; (2013) 117 SASR 1, R v Maiolo (No 3) [2014] SASCFC 89, R v Place [2015] SASCFC 163; (2015) 124 SASR 467. Section 34M(3) is directed to the making of an initial complaint. The question of whether evidence can be admitted as an “initial complaint” depends on a close examination of the facts involved.[9] It is fundamental to the determination of admissibility to ascertain to whom the complainant spoke, when the conversation occurred and, as precisely as possible, what was said during the conversation.[9] R v S, DD [2010] SASCFC 80; (2010) 109 SASR 46 at [100].

Decision

Reasons for decision

NICHOLSON AND LOVELL JJ
Again, neither counsel, although expressly given the opportunity sought any additional direction or redirection on this topic.Conclusion It is unnecessary to give consideration to appeal grounds 5 to 8 inclusive. We are satisfied that the adduction of the “complaint” evidence subsequently withdrawn from the jury, on its own, gave rise to a miscarriage of justice in the sense that it is a reasonable possibility that the adduction of this evidence may have affected the verdict.[37][37] Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 at [60] (McHugh and Gummow JJ), Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319 at 332. It is unnecessary to decide whether or not the deficiencies identified in either the motive direction or the evidence of good character direction were such as, either alone or in combination, to lead to the same conclusion. Insofar as is necessary, we would grant permission to appeal, allow the appeal on the basis of ground 1, set aside all five convictions and remit the matter to the District Court for a new trial. I agree with the reasons of Nicholson and Lovell JJ and the orders they propose.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON AND LOVELL JJ

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