R v STAPLETON (No 2)

[2016] SASCFC 131

Supreme Court of South Australia

(Court of Criminal Appeal)

R v STAPLETON (No 2)

[2016] SASCFC 131

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Auxiliary Justice Chivell)

8 December 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - GENERAL PRINCIPLES

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - EVIDENCE NOT AVAILABLE AT HEARING

Second appeal against conviction brought pursuant to section 353A of the Criminal Law Consolidation Act 1935 (SA).

The appellant was charged with four offences of aggravated assault and five offences of rape. The offences were alleged to have been committed against his wife. The appellant denied all of the allegations.

The jury acquitted the appellant of all charges except for one aggravated assault. That charge is now appealed for a second time.

The appellant’s first appeal of his conviction for the assault was dismissed.

Material now put before the Court of Criminal Appeal shows that the complainant has a history of making false allegations which she has been unable to explain, and has done so recently. Independent psychiatric reports show the complainant was traumatised by her childhood and suffers from episodes of dissociation.

Held per Kourakis CJ (Vanstone J and Chivell AJ agreeing):

1.       On the basis of the fresh evidence before the Court, no reasonable jury could convict the appellant of the offence of assault.

2.       Appeal allowed.

3.       Conviction of assault quashed.

Criminal Law Consolidation Act 1935 (SA) s 353A, referred to.
R v S [2015] SASCFC 179, distinguished.

R v STAPLETON (No 2)
[2016] SASCFC 131

Court of Criminal Appeal:  Kourakis CJ, Vanstone J and Chivell AJ

1. KOURAKIS CJ:          This is a second appeal against conviction and is brought pursuant to s 353A of the Criminal Law Consolidation Act 1935 (SA) (CLCA). On 18 November 2016 the Court allowed the appeal, quashed the conviction and entered an order of acquittal. My reasons for doing so follow.

2. The appellant was charged with four offences of aggravated assault and five offences of rape against his wife between March 2009 and July 2013.   On 28 July 2015, after a two week trial, the appellant was acquitted of all charges save for one charge of assault.

3. The assault of which the appellant was convicted was allegedly committed on 9 March 2012 immediately before the commission of one of the charges of rape of which the jury acquitted the appellant.  The complainant, C, testified that the appellant struck her with a piece of dowel about her arms and also stood on her back and struck her on the back of her knees.   It was an agreed fact at the trial that a general practitioner observed bruising to the complainant’s arms on 23 March 2012 and that on 30 March 2012, C told another general practitioner that her knees were injured in the course of an assault on 9 March 2012.  The latter fact would, but for the agreement, have been inadmissible. 

4. The appellant testified on his trial that he had always sought, and been given, permission before each occasion on which he and his wife had engaged in sexual intercourse.  He denied the alleged assaults.

5. On 14 August 2015 the appellant appealed his conviction pursuant to s 353 of the CLCA.  His appeal was heard on 20 October 2015 and dismissed on 4 December 2015.[1] 

   [1]    R v S [2015] SASCFC 179.

6. Material put before this Court by consent shows that in January 2015 the detective in charge of the investigation against the appellant was informed by C’s counsellor that C had complained that she had been sexually assaulted by her father and that she was contemplating suicide.  That day the detective spoke to C but, for reasons which are not explained in the material before this Court, did not ask C about the allegations of rape against her father or otherwise initiate an investigation.  The detective reported the information to the Director of Public Prosecution (the Director).  However, the information was not disclosed to the defence.  At that point there was no apparent reason to doubt the veracity of C’s complaint about her father’s offending.

7. On 23 September 2015, after the appellant had been convicted and whilst his appeal was pending, C made a formal complaint to Police about offences committed by her father against her.  C complained both of sexual offending against her as a child, and of more recent offences allegedly committed in 2014 and 2015.  On 1 October 2015 police received information that C’s father was in Thailand over the period during which the 2014/2015 offences were allegedly committed.  Police questioned C in early December 2015 about the apparent impossibility of her father committing the more recent offences against her.  C had no explanation for it.  Police determined that it was not in the public interest to prosecute C. 

8. On 23 February 2016 the Director informed the appellant’s solicitor of the investigation into C’s complaint of offences committed by her father.  On 18 May 2016 the appellant filed an application for permission to appeal his conviction on the basis of the fresh evidence disclosed by the Director.  Permission to appeal was granted by a judge of this Court on 24 October 2016.

9. At the hearing of this appeal, with the consent of the Director, the appellant tendered an Updated Family Report dated 20 April 2016 which was prepared for Family Court proceedings between the appellant and C regarding the care of their children.  The report included extracts from an independent psychiatric assessment of C conducted for the purposes of those proceedings.  The psychiatrist’s assessment was that C was ‘traumatised by her childhood’ and suffered chronic post-traumatic stress disorder.  The disorder manifests in episodes of dissociation.  C has also suffered from depression and anxiety over a long period of time.  The psychiatric assessment proceeded on the premise, apparently accepted by C, that she may have imagined some or all of the more recent violence alleged against her father.

10. It is well established, and is the experience of the Court, that the sexual abuse of children leads to long term emotional scarring and sometimes psychological disturbance and psychiatric illness.  Unfortunately and paradoxically that illness can on occasion be advanced as a reason to doubt the evidence of the victim.  In cases of that kind all of the evidence must be carefully evaluated to ensure that on one hand, an offender does not escape conviction by reason of the very harm he or she has caused, and on the other, that a defendant is not convicted on anything less than proof beyond reasonable doubt.

11. In this case the jury were manifestly left with a reasonable doubt on all of the nine charges except for the single count of assault.  The jury may well have differentiated that charge from the others because of the observation of bruising made by one general practitioner and the agreed fact of the complaint made to another general practitioner.  However, the latter evidence was inadmissible but for the consent, and, even though admitted, is of very little weight.

12. I am satisfied that in the light of the fresh evidence no reasonable jury could convict the appellant of the offence of assault.

13. The fresh evidence undermines both C’s credibility and reliability.  Of course, it does not show that the assault was not committed.

14. However, the making by C of false complaints of sexual violence against her father, in a period after the alleged offence of assault, and close to the time at which she testified against C, when she was suffering psychiatric disturbance episodes, necessarily casts a significant doubt over her testimony.  For these reasons the appeal was allowed.

15. VANSTONE J:     For the reasons written by the Chief Justice I joined in the orders of the Court made on 18 November 2016.

16. CHIVELL AJ:      I agreed with the orders made on 18 November 2016.   I agree with the reasons of the Chief Justice for the making of those orders.