R v R, GJ

Case [2009] SASC 371


SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v R, GJ

[2009] SASC 371

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Kourakis)

8 December 2009

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - OTHER CASES

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE

CRIMINAL LAW - PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS - OFFENCES AGAINST THE PERSON

Appellant convicted of one count of indecent assault – jury unable to reach verdict on a count of gross indecency – before hearing commenced appellant sought to subpoena documents relating to counselling provided to the complainant by a school counsellor –whether communications were protected communications within s 67D of the Evidence Act 1929 – whether Judge erred in refusing appellant’s counsel leave to inspect the documents – at trial a police officer who had taken the complainant’s statements gave evidence that the complainant had appeared “traumatised” – whether that testimony caused a miscarriage of justice – whether jury’s verdict on first count and failure to reach verdict on second count inconsistent and against the weight of evidence and the verdict unsafe and unreasonable.

Held (by Kourakis J, Duggan and Bleby JJ agreeing): a trial Judge is not empowered to permit inspection of documents containing protected communications returned on a subpoena before or after the commencement of the trial – school counsellor came within the definition of a counsellor or therapist – communications made in a therapeutic context – communications were protected communications – trial Judge did not err in refusing appellant’s counsel leave to inspect the documents – testimony of police officer did not cause a miscarriage of justice because the trial Judge directed the jury to disregard it almost immediately after it was given – certain inconsistencies in the evidence are reasonably capable of explaining the jury’s verdict on the first count and failure to reach a verdict on the second count – nothing illogical or irrational in the verdict of guilty by reason of the failure to reach a verdict on the second count – appeal dismissed.

Evidence Act 1929 Div 9, s 67D, s 67E, s 67F; Psychological Practices Act 1973 s 32, s 33, s 39, referred to.
MacKenzie v The Queen (1996) 190 CLR 348, applied.
Northern Territory of Australia v GPAO (1999) 196 CLR 553; Jones v The Queen (1997) 191 CLR 439; R v Gbojueh (2009) 103 SASR 545, discussed.
R v Basha (1989) 39 A Crim R 337; MFA v The Queen (2002) 213 CLR 606, considered.

R v R, GJ
[2009] SASC 371

Court of Criminal Appeal:       Duggan, Bleby and Kourakis JJ

  1. DUGGAN J:        I would refuse permission to appeal on grounds 3 and 6 and dismiss the appeal.  I agree with the reasons prepared by Kourakis J.

  2. BLEBY J.             I agree with the…

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R v R, GJ [2009] SASC 371
Case
[2009] SASC 371
Decision Date

CaseChat Overview and Summary

The appellant was convicted of one count of indecent assault, while the jury was unable to reach a verdict on a count of gross indecency. The appellant sought to subpoena documents related to counselling provided to the complainant by a school counsellor, raising the issue of whether these communications were protected under section 67D of the Evidence Act 1929. The appellant also argued that the judge erred in refusing to allow counsel to inspect these documents. During the trial, a police officer testified that the complainant appeared "traumatised," which the appellant claimed caused a miscarriage of justice. The appellant contended that the jury's verdict on the first count and their failure to reach a verdict on the second count were inconsistent, ambiguous, and against the weight of evidence.

The court held that a trial judge lacks the authority to permit inspection of documents containing protected communications, even if subpoenaed, before or after the trial has commenced. The school counsellor fell within the definition of a counsellor or therapist, and the communications made in a therapeutic context were indeed protected. The judge did not err in refusing the appellant's counsel leave to inspect these documents. The testimony of the police officer did not cause a miscarriage of justice as the trial judge promptly directed the jury to disregard it. The court found that certain inconsistencies in the evidence could reasonably explain the jury's verdict on the first count and their failure to reach a verdict on the second count. The verdict of guilty due to the failure to reach a verdict on the second count was neither illogical nor irrational.

The court dismissed the appeal, refusing permission to appeal on grounds 3 and 6. The reasoning was that the inconsistencies in the evidence could justify the jury's verdict and the failure to reach a verdict on the second count, and there was no miscarriage of justice caused by the police officer's testimony. The inconsistencies in the evidence were reasonably capable of explaining the jury’s failure to reach a verdict on the second count, even though they had accepted the complainant as a witness of truth. Consequently, the court concluded that there was nothing illogical or irrational in the verdict of guilty due to the failure to reach a verdict on the second count.

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

BLEBY J
The inconsistencies to which I have referred are reasonably capable of explaining the jury’s failure to reach a verdict on the second count even though they had accepted her as a witness of truth; for that reason there is nothing illogical or irrational in the verdict of guilty by reason of the failure to reach a verdict on the second count. I would refuse permission to appeal on this ground.Conclusion I would refuse permission to appeal on grounds 3 and 6 and dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: BLEBY J

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