R v SDI

Case [2023] QCA 67

SUPREME COURT OF QUEENSLAND

CITATION:

R v SDI [2023] QCA 67

PARTIES:

R
v
SDI
(appellant)

FILE NO/S:

CA No 6 of 2021
DC No 378 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal Against Conviction

ORIGINATING COURT:

District Court at Southport – [2020] QDC 303 (McGinness DCJ)

DELIVERED ON:

18 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

12 December 2022

JUDGES:

Mullins P and Morrison and Flanagan JJA

ORDERS:

1.   The application to adduce further evidence is refused.

2.   The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where, after a judge alone trial, the appellant was convicted of one count of stalking contrary to s 359E(1), (3)(c) of the Criminal Code between 27 March 2015 and 3 October 2016, and one count of attempting to pervert the course of justice contrary to s 140 of the Criminal Code between 28 September 2016 and 5 November 2016 – where the stalking charge was found to be a domestic violence offence under s 564(3A) of the Criminal Code – where the appellant was self-represented as to this ground – where the complainant and the appellant commenced a relationship in 2008 in the UK before moving to Australia – where the complainant had a daughter from a previous relationship and a son with the appellant – where that relationship broke down in 2014 – where the appellant was alleged to have engaged in up to 27 acts which constituted stalking – where several of the particularised acts were withdrawn by the time of address –where the appellant admitted several of the acts either before or during trial, but denied the rest – where the appellant argued that relevant and admissible evidence was not before the trial judge and that this evidence proved his innocence of the charges – where the appellant sought leave to adduce that evidence – whether leave to adduce evidence should be granted – where the appellant further argued that certain evidence had been fabricated by the complainant – whether the verdict of guilty was open on the evidence – where no submissions were advanced separately in relation to the conviction for attempting to pervert the course of justice – where the appellant attempted to cause persons to make false statements admitting responsibility for acts which the appellant eventually admitted he committed – whether the conviction for attempting to pervert the course of justice stands

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where a printout showed the appellant’s iPhone was synchronised with the complainant’s daughter’s Gmail account – where a series of printouts showing the Gmail account’s search history were admitted into evidence – where expert evidence established that the Gmail search history would be on by default, and only be off if done manually – where, at trial, defence Counsel had raised an objection to…

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AGLC
R v SDI [2023] QCA 67
Case
[2023] QCA 67
Decision Date

CaseChat Overview and Summary

The appellant, represented by self-represented counsel, appealed against his conviction of stalking and attempting to pervert the course of justice. The appeal was heard in the Supreme Court of Victoria. The legal issues included whether the trial judge erred in admitting certain evidence, whether the verdict was unreasonable or insupportable having regard to the evidence, and whether there were any procedural errors made by the trial judge.

The court held that the evidence in question was admissible and that the trial judge did not err in admitting it. The court also found that the verdict was open on the evidence and was not unreasonable or insupportable. The court held that there were no procedural errors made by the trial judge that had a consequential effect on the outcome of the trial. The appeal was dismissed, and the application to adduce further evidence was refused.

The court concluded that the conviction for attempting to pervert the course of justice must stand, regardless of the outcome of the other aspects of the appeal. The court found that the evidence showed that the appellant attempted to cause persons to make false statements admitting responsibility for acts that he eventually admitted to committing. The court held that this conviction did not depend upon success in overturning the stalking conviction.

Orders

Orders of the court

1. The application to adduce further evidence is refused.

2. The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Grounds 3 and 6 concern the admissibility of Exhibits 5 and 42. Several points are made in support:(a)Exhibits 5 and 42 were inadmissible in the absence of evidence from the source of the information in them;(b)Exhibit 5 was not the subject of a ruling on its admissibility at all; and(c)a ruling on the admissibility of Exhibit 42 was deferred at the start of the trial and only made in the course of the trial judge’s deliberations; that occasioned unfairness to the appellant because he did not know the full case he had to meet.The complainant’s evidence Exhibit 5 was a screenshot of the daughter’s computer screen.[3] The complainant’s evidence was, in summary:(a)she recognised the document as a printout showing “[appellant’s first name]’s iPhone synched to [the daughter’s] Gmail account”;[4](b)asked what the document showed, she said: “So that basically shows that [appellant’s first name]’s iPhone was synched with [the daughter’s] Gmail account and his device was used to log in.”[5];(c)asked what page she went to in order to access it, she said:[6]“So when you log into your Gmail account, you can actually look at the devices that are synced to your Gmail....And you can see which devices that is synched to your laptop or your iPhone and things like that, and that’s where that came up.”;(d)she was accessing the daughter’s Gmail account and clicked on “synched devices” in account settings and security settings; doing that directs you to that page;[7] and(e)she saw it on 12 May 2015 and took a photo of the screen and printed it off.[8][3]Appeal Book (AB) 832.[4]AB 212 line 10.[5]AB 212 lines 23–31.[6]AB 212 lines 33–38.[7]AB 212 line 40 to AB 213 line 11.[8]AB 213 lines 44 to AB 214 line 5; AB 214 lines 42–43. In cross-examination, the complainant agreed with the proposition that “the iTunes account is the account that … you can link your various devices together”.[9][9]AB 323 lines 24–25. Exhibit 42 was a series of printouts,[10] each from the daughter’s Gmail account, showing what it displayed as the search history on the daughter’s Gmail account.[10]AB 1302. As to Exhibit 42, the complainant’s evidence can be summarised as follows:(a)on 12 May, she looked at the search history on the daughter’s Gmail account;[11](b)MFI #C was what she saw;[12](c)she printed it out and emailed it to her lawyer;[13](d)it shows the search history of the daughter’s Gmail account;[14](e)she identified various dates and searches, such as: Pornhub.com; “mother beats child; abuse and other signs”; “[complainant’s name] Revenge”; “Can I find someone on Facebook by their phone number”; “How to pay to find someone”; “How do I find someone without paying a fee?”; “Find out where someone lives.”; “How to stalk (find) people in Australia”; “Mobile phone locator”; “[XX] Avenue, Runaway Bay”; “Porn movies and nude sex videos and teen porn videos”; “[XX] Street, Southport”; “[XX] Street, Southport”; “Sanctuary Gardens”; “What will happen if I take my children against a Family Court order?”; “What if I take my children against a court order? ”; “What if I take my children against a court order?”;[15] and(f)she said she did not do those searches.[16][11]AB 214 line 45 to AB 215 line 8.[12]AB 215 line 14.[13]AB 215 lines 16–25.[14]AB 216 lines 1–4.[15]AB 216 line 16 to AB 219 line 39.[16]AB 217 line 29; and also as each search was identified.

Decision

Reasons for decision

The appeal on this ground must be dismissed.Conclusion No basis has been established to permit the further evidence to be adduced. The evidence referred to was available in one form or another to either the appellant or his lawyers, and, in any event, amounted to no more than a general attack on the complainant’s credit. As such, it could not have affected the outcome of the trial. No basis has been made out to challenge the verdicts. The application to adduce further evidence must be refused and the appeal must be dismissed. FLANAGAN JA: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

No ground or submissions were separately advanced relating to the conviction for attempting to pervert the course of justice. Its fate does not depend upon success in overturning the stalking conviction. As can be seen from the summary above, that charge was that the appellant tried to cause persons to make false statements admitting responsibility for acts which, it was eventually admitted, were done by the appellant, namely submissions to Crime Stoppers and PoliceLink. That means, whatever the outcome in respect of the other aspects of the appeal, the conviction for attempting to pervert the course of justice must stand.Consideration of grounds advanced Grounds 4, 5, and 8 were not ultimately pressed by the appellant. I intend to say something briefly as to Grounds 4 and 5, but, in the circumstances, Ground 8 may be ignored. Ground 7 was subsumed in the appellant’s arguments on Grounds 1 and 2, the unreasonable verdicts ground. It is convenient to commence with Grounds 3 and 6, in respect of which Mr Jones and Mr Tessman of Counsel appeared for the appellant.Grounds 3 and 6 Grounds 3 and 6 concern the admissibility of Exhibits 5 and 42. Several points are made in support:(a)Exhibits 5 and 42 were inadmissible in the absence of evidence from the source of the information in them;(b)Exhibit 5 was not the subject of a ruling on its admissibility at all; and(c)a ruling on the admissibility of Exhibit 42 was deferred at the start of the trial and only made in the course of the trial judge’s deliberations; that occasioned unfairness to the appellant because he did not know the full case he had to meet.The complainant’s evidence Exhibit 5 was a screenshot of the daughter’s computer screen.[3] The complainant’s evidence was, in summary:(a)she recognised the document as a printout showing “[appellant’s first name]’s iPhone synched to [the daughter’s] Gmail account”;[4](b)asked what the document showed, she said: “So that basically shows that [appellant’s first name]’s iPhone was synched with [the daughter’s] Gmail account and his device was used to log in.”[5];(c)asked what page she went to in order to access it, she said:[6]“So when you log into your Gmail account, you can actually look at the devices that are synced to your Gmail....And you can see which devices that is synched to your laptop or your iPhone and things like that, and that’s where that came up.”;(d)she was accessing the daughter’s Gmail account and clicked on “synched devices” in account settings and security settings; doing that directs you to that page;[7] and(e)she saw it on 12 May 2015 and took a photo of the screen and printed it off.[8][3]Appeal Book (AB) 832.[4]AB 212 line 10.[5]AB 212 lines 23–31.[6]AB 212 lines 33–38.[7]AB 212 line 40 to AB 213 line 11.[8]AB 213 lines 44 to AB 214 line 5; AB 214 lines 42–43. In cross-examination, the complainant agreed with the proposition that “the iTunes account is the account that … you can link your various devices together”.[9][9]AB 323 lines 24–25.