R v Van Gelder No. Sccrm-02-247

[2002] SASC 325

R v VAN GELDER
[2002] SASC 325

Court of Criminal Appeal:  Debelle, Williams and Bleby JJ (ex tempore)

1. DEBELLE J           The applicant was convicted by the verdict of a jury of four counts of rape. The applicant applied for leave to appeal against the conviction. Leave was refused. The applicant now asks this Court to consider and determine his application.  We made an order that the application be listed for oral argument.

2. The first ground of the application is that the trial judge erred in refusing to exclude expert evidence as to handwriting. It is said that the prosecution had been guilty of an abuse of process. The argument is grounded on the following facts. On 16 August 2001 an order had been made directing the prosecution to provide to the defence statements of its handwriting experts by the first week of November 2001. The intended date of the trial was early in 2002. The trial did not proceed on the date initially assigned. The statements were not provided until 3 and 5 June 2002. The trial was to begin on 7 June 2002. There was a Basha inquiry on 7 June 2002 of the prosecution’s expert witness as to handwriting. The trial was adjourned until 11 June 2002 at 2.15 pm to enable counsel for the defence to consult an expert. When the trial resumed on 11 June, no further application was made by the defence in relation to this issue. The trial judge allowed the prosecution expert to give evidence. It is said that he erred in the exercise of his discretion in doing so.

3. The applicant does not now and did not at the trial point to any prejudice. Instead, the applicant simply relies on the failure by the prosecution to comply with the pre-trial direction. The applicant seeks to elevate this failure to comply into an abuse of process. There can be little doubt that the prosecution can be very strongly criticised for the delay in failing to comply with the pre-trial direction. However, it cannot be said that in any respect its failure to comply constituted an abuse of process, particularly having regard to the manner in which the defence was able to conduct the Basha inquiry and the adjournment which was made available to it. In no respect does this ground give rise to any arguable issue.

4. The second ground of appeal asserts that the trial judge erred when directing the jury concerning a letter, Exhibit P3, which was alleged to have been written by the applicant. The letter admitted acts of intercourse with the complainant but said that the intercourse was consensual. The applicant denied writing the letter. It was his case that the letter was a forgery. The trial judge’s direction was in these terms.

   “Mr Henchliffe referred to the letter, Exhibit P3.  He pointed out that it was not put to Sellena during her evidence that she forged the letter.  To the extent that that is now suggested as a possibility, you will make your own assessment as to whether she had the intelligence, and the ability, to forge a four page letter.”

   It is contended that the direction implied to the jury that the possibility was unlikely. It is also said that the direction was factually wrong. I do not agree. An examination of the transcript of the trial shows that the complainant was not cross-examined to the effect that she had forged the letter. She was simply asked if she had written it. That was the only question she was asked as to her authorising of the letter. The cross-examiner then proceeded to ask if her mother had written it. Indeed, the thrust of the cross-examination of the complainant concerning Exhibit P3 was that her mother had written it. The single question asking whether she had written the letter was obviously asked to exclude the possibility that she had so that the implication the mother had written it would be the more likely. Even if that is an incorrect reading of the evidence, it is certainly one which was open. I do not agree that the direction implied to the jury that the possibility was unlikely as counsel for the applicant intends. Instead, the issue was simply left to the jury for its consideration. This ground is manifestly unarguable.

5. The third ground is that the verdict of guilty on count 5 is unsupported by the evidence and so is unsafe and unsatisfactory. The complainant’s account of the events, the subject of this count, was that the applicant had had sexual intercourse with her on a night about two nights after her 13th birthday. She was cross-examined twice concerning the events of that evening. The effect of her answers when first cross-examined was that the sexual intercourse did not occur because another occupant of the house was walking along the hallway past her bedroom and going to the lavatory. This had caused the applicant to stop what he was doing, pull up his trousers, and hide. Shortly after, he left the complainant’s room. Counsel for the applicant returned to this topic at the close of his cross-examination. He put it to her that the applicant had not had sexual intercourse on that occasion. The complainant replied that sexual intercourse had occurred. Counsel for the applicant did not then seek to resolve the inconsistency in her evidence, notwithstanding that her answer was entirely different from her earlier answer. Counsel for the applicant in effect restored her evidence-in-chief. Thus, there was evidence for the jury to consider concerning this count. This ground also is unarguable.

6. Ground 4 lists a number of grounds on which the verdicts are asserted to be unsafe and unsatisfactory. The first four sub-paragraphs of this ground all refer to the verdict in relation to count 5, the attack upon which has just been examined. Those grounds are unarguable for the reasons just expressed.

7. Five sub-paragraphs remain. They do no more than seek to raise issues of fact. The issues raised in those paragraphs were all dealt with in the course of the directions to the jury. None of them gives rise to an arguable issue. For all of these reasons the fourth ground of appeal is not arguable.

8. I would dismiss the application.

9. WILLIAMS J         I agree that the application should be dismissed for the reasons given by Debelle J.

10. BLEBY J                I also agree.

11. DEBELLE J           The order of the court is application dismissed.