R v Sparks

Case [2014] SASCFC 122

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SPARKS

[2014] SASCFC 122

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Parker)

13 November 2014

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES

CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - EVIDENCE OF SEXUAL EXPERIENCE, REPUTATION AND MORALITY

Appeal against conviction.  The defendant was found guilty by jury verdict of the offence of persistent sexual exploitation of a child.  It was the prosecution case that the offence was committed between 1 January 1986 and 6 April 1992 when the complainant was in the care of the defendant’s parents in law. 

Whether a substantial miscarriage of justice occurred as a result of evidence of alleged injuries to the complainant’s anus being put before the jury. Whether the Judge erred in failing to draw the jury’s attention to significant risks in the complainant’s evidence. Whether the Judge erred in his application of section 34L of the Evidence Act 1929 (SA) and, as a result, impermissibly restricted the defendant’s right to cross-examine the complainant.

Held per Gray J (Vanstone and Parker JJ agreeing)(dismissing the appeal):

1.  The medical evidence was the subject of an agreed fact.  The prosecutor accepted in her closing submission that this evidence was neutral and the Judge directed the jury that it was not evidence implicating the defendant.  It is to be assumed that the jury would follow this direction. 

2.  The jury were well able to assess the complainant when giving evidence.  The topic of inconsistencies in the complainant’s evidence was prominent in the trial and the jury were directed on this topic.  The summing up of the Judge is not open to be criticised on the grounds that he failed to adequately put the defence case. 

Held per Gray J:

3. A trial judge has a wide discretion in regard to the admissibility of evidence guided by the terms of section 34L of the Evidence Act. No ground has been identified to allow this Court to conclude that the Judge’s discretion miscarried. The approach taken by the Judge was justified by the material before him.

Held per Vanstone J (Parker J agreeing):

4. The determination of an application to cross-examine pursuant to section 34L involves an assessment of the potential relevance and probative force of the evidence, or its capacity to impact upon the alleged victim’s credibility. It is essentially a question of judgment about admissibility, which is a question of law. The judge was correct in finding that the requirements of section 34L were not met.

Evidence Act 1929 (SA) s 34L, referred to.
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R v Sparks [2014] SASCFC 122
Case
[2014] SASCFC 122
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for persistent sexual exploitation of a child. The defendant, Sparks, appealed his conviction on three grounds. The first ground alleged that the admission of evidence regarding injuries to the complainant was prejudicial. The second ground argued that the trial judge failed to adequately warn the jury about the risks associated with the complainant's evidence, particularly concerning inconsistencies. The third ground contended that the judge erred in applying section 34L of the Evidence Act 1929 (SA), thereby improperly restricting the defendant's right to cross-examine the complainant.

The court was required to determine whether a substantial miscarriage of justice had occurred due to the admission of medical evidence concerning injuries to the complainant, whether the trial judge's summing up adequately addressed the defence's concerns about the complainant's evidence, and whether the trial judge correctly applied section 34L of the Evidence Act in limiting the scope of cross-examination.

The Full Court, comprising Gray, Vanstone, and Parker JJ, dismissed the appeal. Gray J held that the medical evidence was agreed to be neutral and the jury was directed that it did not implicate the defendant, and it was to be assumed the jury followed this direction. He also found that the jury was capable of assessing the complainant's evidence, that inconsistencies were a prominent issue at trial, and that the judge's summing up adequately presented the defence case. Regarding the application of section 34L, Gray J noted the trial judge's wide discretion and found no basis to conclude that this discretion had miscarried. Vanstone J, agreeing with Gray J, further elaborated that the determination under section 34L involves assessing relevance and probative force, and that the judge correctly found the requirements of the section were not met for the proposed cross-examination.

Orders

Orders of the court

Held per Gray J (Vanstone and Parker JJ agreeing)(dismissing the appeal):

1. The medical evidence was the subject of an agreed fact. The prosecutor accepted in her closing submission that this evidence was neutral and the Judge directed the jury that it was not evidence implicating the defendant. It is to be assumed that the jury would follow this direction.

2. The jury were well able to assess the complainant when giving evidence. The topic of inconsistencies in the complainant’s evidence was prominent in the trial and the jury were directed on this topic. The summing up of the Judge is not open to be criticised on the grounds that he failed to adequately put the defence case.

Held per Gray J:

3. A trial judge has a wide discretion in regard to the admissibility of evidence guided by the terms of section 34L of the Evidence Act. No ground has been identified to allow this Court to conclude that the Judge’s discretion miscarried. The approach taken by the Judge was justified by the material before him.

Held per Vanstone J (Parker J agreeing):

4. The determination of an application to cross-examine pursuant to section 34L involves an assessment of the potential relevance and probative force of the evidence, or its capacity to impact upon the alleged victim’s credibility. It is essentially a question of judgment about admissibility, which is a question of law. The judge was correct in finding that the requirements of section 34L were not met.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The defendant advanced three grounds of appeal. First, the defendant submitted that a substantial miscarriage of justice occurred as a result of evidence of alleged injuries to the complainant’s anus being put before the jury. Secondly, the defendant contended that the Judge erred in failing to draw the jury’s attention to significant risks in the complainant’s evidence. Finally, the defendant submitted that the Judge erred in his application of section 34L of the Evidence Act 1929 (SA) and, as a result, impermissibly restricted the defendant’s right to cross-examine the complainant.Evidence of Injuries to the Complainant A statement of agreed facts was received in the trial. One fact related to injuries to the anus of the complainant. The injuries were discovered following a medical examination on 27 July 1992. During final addresses, the prosecutor accepted that this medical evidence of injury was neutral. The Judge, when summing up, directed the jury that the medical evidence of injury was “no evidence implicating [the defendant]”. Counsel for the defendant in his written submissions suggested that the mere fact of injury, notwithstanding the Judge’s direction, would have remained as a significant matter in the mind of the jury. In my view, there is no basis to support this suggestion. It is to be assumed that the jury would follow the Judge’s direction in this respect. I do not consider there to be any substance to this complaint. Failure to Put the Defence Case The complainant’s evidence at trial displayed many inconsistencies. These were addressed at length in the final addresses of counsel. The prosecutor suggested to the jury that these inconsistencies did not affect the complainant’s credibility and reliability on critical matters. She drew attention to the relative youth of the complainant at the time of the offending and to the fact that the evidence given at trial related to events occurring many years earlier. The defence submitted to the jury that the inconsistencies in the complainant’s evidence were significant and impacted on his credibility and reliability. The inconsistencies were said to demonstrate that the complainant was lying. Attention was drawn in particular to inconsistencies between the complainant’s evidence and his out of court statements. During the summing up, the Judge reminded the jury of the submissions of counsel and, in particular, those of defence counsel. The Judge, following this reminder, explained to the jury the use they may make of any inconsistencies that they found established and, in particular, what use could be made of any inconsistencies that they found to be material. The Judge pointed out that inconsistencies could be important as exposing the unreliability of a witness and that they may also affect the credibility of a witness. The Judge emphasised that inconsistencies may be so important as to impinge upon the evidence of a witness more widely than on the particular topic to which they relate.

Decision

Reasons for decision

GRAY J
There was no allegation that the Judge misapplied the law, had regard to immaterial matters, or failed to have regard to material matters. The reasons given by the Judge support his refusal to allow cross-examination on these topics, subject to the two exceptions that the Judge identified. The defence wished to engage in what could be fairly described as a fishing expedition. It is not without relevance that on the topics on which cross-examination was permitted, the defendant was consistent in his denial of the allegations put to him. I do not consider that any basis has been established to support the challenge to the Judge’s exercise of discretion in respect to these evidentiary issues.Conclusion I would dismiss the appeal. VANSTONE J: The appellant was convicted by verdict of a jury for persistent sexual exploitation of a child. The information alleged that sexual exploitation of the victim had occurred during the period 1 January 1986 to 6 April 1992. The victim was aged 36 years at the time of trial. In the notice of appeal the appellant took three grounds. Of those, ground 1 attracted a grant of permission by a single judge of this Court. It concerns an application which was made to the trial judge to cross-examine the victim in relation to his sexual activities before and after the relevant events. This ground raises the interpretation and application of s 34L of the Evidence Act 1929 (SA) (the Act). It was to this ground that most of the argument on the appeal was directed. I consider this ground raises a question of law. Ground 2 was a complaint that in directing the jury about the complainant’s evidence, the trial judge failed to give sufficient warning about the risks associated with accepting it. Ground 3 complained of admission into evidence by way of an admitted fact of a particular matter, which counsel argued was of no assistance to the jury, but might have prejudiced the appellant. Permission to appeal on grounds 2 and 3 was refused by the single judge but is now renewed. For the reasons given by Gray J I agree that permission should not be granted on those grounds. In relation to ground 1, I agree that the ground should fail, but I prefer to give my own brief reasons.Application of s 34L of the Evidence Act 1929 At trial counsel then acting for the appellant applied to the judge for permission to cross-examine the complainant about his alleged sexual activities before and after the events directly relevant to the charge. Permission of the judge was necessary pursuant to s 34L of the Act. Counsel had to hand a large number of files from the government department known as Families SA which had been produced on subpoena. Most of the topics upon which counsel sought leave were based on material derived from these files. The judge heard full argument about the proposed cross-examination and provided comprehensive written reasons for the rulings he made. As will be seen, he allowed cross-examination on some grounds but refused it on others.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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