(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Anderson)
30 January 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING
CRIMINAL LAW - PROCEDURE - WITNESSES - POWERS OF JUDGE - GENERALLY
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
The appellant was convicted, following a trial by Judge alone, of one count of persistent exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The victim, JT, was the appellant’s step-daughter. The alleged offending was said to have occurred at various locations between 1970 and 1981 and included many different acts of sexual exploitations. JT was about 50 years of age when she gave evidence. The appellant appeals against his conviction.
The appellant appeals on the grounds that: the Judge failed to direct herself with respect to the forensic disadvantage caused by the delay; the Judge excessively intervened in the examination and cross-examination of JT; the verdict was unreasonable and not supported by the evidence. The appellant also seeks permission to appeal on the further ground that the Judge failed to make findings as to the particular occasions upon which the appellant had committed the acts of sexual exploitation constituting the offence.
Held (Kourakis CJ, Vanstone and Anderson JJ agreeing):
(1) Section 34CB of the Evidence Act 1929 (SA) does not require a judge to include within his or her reasons a direction, regarding the forensic disadvantage caused by delay, that that section prescribes ([18] - [22]).
(2) The Judge adequately dealt with the forensic disadvantage caused by the delay ([23] - [36]).
(3) Excessive judicial intervention, cross-examination on prior inconsistent statements, and ss 28 and 29 of the Evidence Act 1929 (SA) discussed ([37] - [75], [93] - [96]).
(4) The Judge made a number of erroneous evidential rulings during JT’s evidence. Despite that finding, no substantial miscarriage of justice arose and a reasonable person would not have apprehended from the interventions that the Judge had prejudged the factual issues in dispute or adopted a favourable bias toward JT or compromised her capacity to objectively evaluate the evidence ([76] - [77]).
(5) The verdict was not unreasonable having regard to the evidence ([83] - [90]).
(6) The Judge set out the Information at the commencement of her reasons and expressly found the accused guilty as charged of the offences of persistent sexual exploitation…
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.
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Details
AGLC
R v T, WA [2014] SASCFC 3
Case
[2014] SASCFC 3
Decision Date
CaseChat Overview and Summary
The appeal concerned a criminal conviction where the appellant, R, challenged the trial judge's conduct and evidentiary rulings. The dispute centred on the judge's handling of witness testimony, particularly concerning alleged sexual offences. The appeal was heard by the Court of Appeal of Western Australia, comprising Kourakis CJ, Vanstone and Anderson JJ.
The legal issues before the Court of Appeal included whether the trial judge erred in preferring the evidence of one witness over the appellant's regarding interactions between the complainant and the appellant. Additionally, the court considered whether the judge was correct to intervene when defence counsel attempted to confront a witness with a hospital record containing a prior inconsistent statement, and whether this intervention amounted to an error that prejudiced the appellant's case. The court also addressed the broader issue of judicial interventions during trials and their potential impact on fairness and the presentation of evidence.
The court reasoned that the trial judge was entitled to assess conflicting witness testimony and make findings of fact, and that preferring one witness's account over another's, in this instance, did not constitute an error. Regarding the production of the hospital record, Vanstone J, while agreeing with the Chief Justice on most points, dissented on the specific ruling. Vanstone J held that while defence counsel was permitted to show the document to the witness to test her testimony, the manner in which counsel sought to use it, by suggesting its contents were inconsistent with her evidence, was impermissible. Therefore, the judge's intervention to prevent counsel from proceeding in that manner was considered correct.
The appeal was dismissed on grounds 1, 2, and 4, and permission to appeal on ground 3 was refused.
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
ANDERSON J
The appellant also complained that the Judge preferred the evidence of VR about the contact between JT and the appellant in the time that she lived with JT. That evidence had been made relevant by the cross-examination of JT to suggest that she had maintained a good relationship with the appellant after she had left home. There was a conflict between the appellant on the one hand, and JT and VR on the other on that issue. It was a matter for the Judge to assess the conflicting testimony. She preferred VR’s evidence to that of the appellant. The Judge made no error in doing so.Conclusion I would dismiss the appeal on grounds 1, 2 and 4. I would refuse permission to appeal on ground 3. VANSTONE J: I have had the advantage of reading the reasons of the Chief Justice in draft. With one slight qualification I agree with his Honour’s reasons. I would also add the following comment. In relation to judicial interventions as a whole I think it should be stressed – as Kirby J did in Galea v Galea (1990) 19 NSWLR 263 – that interventions are becoming more common. They are often called for by inadequacies in the presentation of cases. These days we are accustomed to seeing more junior practitioners take on matters of complexity and importance. Moreover, many more parties are unrepresented. It may be that the standard of advocacy in an overall sense has declined. As well, there is a recognition that the length of trials has increased with the passage of years and that the cost of maintaining what might be called a “Rolls Royce justice system” is becoming greater. Speaking generally, interventions very often assist in clarifying issues, in minimising wastage of time, and in assisting witnesses to comprehend the task they face and to do themselves justice. They also play an important role in assisting practitioners to improve their forensic skills. However, as is demonstrated in the Chief Justice’s reasons, there are risks associated with too readily interrupting. In the dynamic situation of a trial it is not always easy for a judicial officer to adjudge the effects of his or her interventions and the impressions that they may engender. In relation to the production to JT of the hospital record said to contain a previous inconsistent statement about cannabis use, I disagree with the Chief Justice that the judge was wrong to stop counsel at the point of producing the document to the witness. While I agree with the Chief Justice that counsel was entitled to place the document in front of the witness and ask her whether she adhered to her present testimony, counsel was not entitled to give evidence of the document by using the words “… and see whether you maintain that, given what’s in here …”. I note that, because of the objection, the final words of counsel’s question may have been lost to the transcriber. But in any event, plainly counsel was attempting to pit the witness’s stance on the issue against what was said to be in the document. That is not permissible. Consequently I do not agree that the judge erred in stopping the appellant’s counsel from showing JT the document. The manner in which counsel was proceeding was incorrect.