Legal Research
Cases
R v R, GJ

R v R, GJ

Case [2009] SASC 371 8 December 2009

Appeal

Miscarriage of Justice

Protected Communications

Jury Instructions

Admissibility of Evidence

Criminal Law

Type to search within this case.

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

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.
BLEBY J. I agree with the…

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 R, GJ

Details

AGLC: R v R, GJ [2009] SASC 371
Case: [2009] SASC 371
Decision Date: 8 December 2009

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

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

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

Full text does not contain this section.

Citations

AGLC Citation

R v R, GJ [2009] SASC 371

Most Recent Citation

Pillay v The Queen [2014] VSCA 249

Cases citing this decision · 12 of 12 shown

R v Geoffrey (a pseudonym)
[2024] SASCA 40 Para 6

…e approach.[59] [58] Having regard to the text, context and purpose of the provision, R v A2 (2019) 269 CLR 507, [32]-[37]. [59] Cf R v R, GJ (2009) 105 SASR 506.…
Central Adelaide Local Health Network Inc v Whitehouse
[2024] SASCA 22 Para 13

…es and behavioural dysfunctions including alcohol and drug use, anxiety, depression and relationship difficulties to name but a few. [51] (2009) 105 SASR 506. [52] R v R, GJ (2009) 105 SASR 506 at [20] (Kourakis J, Duggan and Bleby JJ agreeing). [53] R v R, GJ (2009) 105 SASR 506 at [20] (Kourakis J, Duggan and Bleby…
Daaboul v R
[2019] NSWCCA 191

…QCA 300 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v R, GJ (2009) 105 SASR 506; [2009] SASC 371 R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 Tukuafu v The Queen [2014] VSCA 345 Walker v R [2019] NSWCCA 4 Wa…
R v Tipping
[2019] SASCFC 41 Para 18

…In R v R, GJ (2009) 105 SASR 506 at [32] Kourakis J (as he then was) sounded a note of caution in relation to the extension of these principles into a comparison of a guilty verdict with a failure to agree. In particular he noted that it is difficult to see that a verdict of guilty is rendered illogical by the failure…
R v Lennox; R v Lennox; Ex parte
[2018] QCA 311

…n (1987) 44 SASR 591, cited R v LAK [2018] QCA 30 , distinguished R v R,GJ (2009) 105 SASR 506; [2009] SASC 371, cited R v Stone , unreported, Court of Criminal Appeal, Devlin J, 13 December 1954, cited Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, cited COUNSEL: B Power for the appellant M R Byrne QC for…
Michael Leigh Crofts v The Queen
[2018] VSCA 197 Para 21

…R [2003] WASCA 211, at [45] per McKechnie J; R v Kahu [2006] QCA 33, at [27] per Keane JA; R v DAL [2005] QCA 281, at [21] per Keane JA. Cf R v R, GJ (2009) 105 SASR 506, at 517, [32] per Kourakis J (‘ R, GJ’ ). (Citations as in original).…
R v NEOCLEOUS
[2017] SASCFC 162 Para 1

…ensive analysis essayed by Doyle J, I adhere to the view I expressed in R v R, GJ [1] on the legal significance of a jury not reaching a verdict. [1] (2009) 105 SASR 506 at 517, [32].…
R v RUSSO
[2017] SASCFC 78 Para 2

…am, however, prepared to deal with the appellant’s appeal as if the jury had returned a verdict of not guilty on the second count. [14] [2009] SASC 371 at [32], (2009) 105 SASR 506 at 517.…
Re R v C
[2015] SASCFC 32 Para 17

…Families SA, Ms Deborah Lawton and a Dr Nicholls (so far as the documents she produced did not disclose communications with Ms Sohner). [2] R v R, GJ [2009] SASC 371 at [18]; (2009) 105 SASR 506 at 513 (Kourakis J as he then was; Duggan and Bleby JJ concurring).…
PA v R
[2015] NSWCCA 18 Para 33

…In South Australia in R v R, GJ [2009] SASC 371; 105 SASR 506 Kourakis J (with whom Duggan and Bleby JJ agreed) said:…
Pillay v The Queen
[2014] VSCA 249 Para 1

…he Queen [2003] WASCA 211, [45] (McKechnie J); R v Kahu [2006] QCA 33, [27] (Keane JA); R v DAL [2005] QCA 281, [21] (Keane JA). Cf R v R, GJ (2009) 105 SASR 506, 517 [32] (Kourakis J) (‘ R, GJ ’).…
C, Re v O, Cl
[2014] SASC 83 Para 29

…e” in the context of curial proceedings refers to the leading of evidence and not to the processes of discovery. (Emphasis in original) [2] (2009) 105 SASR 506. [3] (2009) 105 SASR 506, [17]-[18]. [4] R v Basha (1989) 39 A Crim R 337.…

View all 12 citing cases →

Cases cited in this decision · 6 of 6 shown

R v Gbojueh
[2009] SASC 104 Para 16

…al inconsistency has been more commonly found where there are different verdicts on counts relating to a single incident.[10] (footnotes omitted) [9] (2009) 103 SASR 545. [10] R v Gbojueh (2009) 103 SASR 545 at 563, [56].…
MFA v The Queen
[2002] HCA 53 Para 11

…count, but with some doubt in another, is reason enough to set aside the verdict of guilty on the former count. [4] MFA v The Queen (2002) 213 CLR 606 at 624, [59] per McHugh, Gummow and Kirby JJ.…
Northern Territory v GPAO
[1999] HCA 8 Para 16

…he Court to ascertain, with some certainty, the nature and scope of the evidence that would be adduced in the trial if permission were given. [2] (1999) 196 CLR 553. [3] Northern Territory of Australia v GPAO (1999) 196 CLR 553 at 571, [16] per Gleeson CJ and Gummow J; at 606, [135] per Gaudron J; at 629, [199] per M…
Vincent Raymond Jones v The Queen
[1997] HCA 56 Para 15

…ere. It would also overlook the practical way in which juries often approach different charges expressed in different counts of an indictment.[8] [7] (1997) 191 CLR 439. [8] Jones v The Queen (1997) 191 CLR 439 at 469-70.…
Jones v The Queen
[1997] HCA 12 Para 15

…ook the practical way in which juries often approach different charges expressed in different counts of an indictment.[8] [7] (1997) 191 CLR 439. [8] Jones v The Queen (1997) 191 CLR 439 at 469-70.…
Mackenzie v The Queen
[1996] HCA 35 Para 12

…It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case’.[6] (emphasis added, footnotes omitted) [5] (1996) 190 CLR 348. [6] MacKenzie v The Queen (1996) 190 CLR 348 at 366-8.…

Legislation cited in this decision · 3

Psychological Practices Act 1973 (SA)
32 2 mentions (from Para 2)
Evidence Act 1929 (SA)
1 mention (from Para 7)
Evidence Act 1995 (Cth)
1 mention (from Para 16)