R v W, GC
[2006] SASC 376
•14 December 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v W, GC
[2006] SASC 376
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Layton and The Honourable Justice David)
14 December 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS
Appeal against conviction - appellant convicted of two counts of unlawful sexual intercourse with a person between 12 and 17 years - offences were particularised as occurring in 1986 when the victim was 13 years of age - appellant admitted the acts, but claimed that they occurred in 1989 when the victim was 16 years of age - s 49(4) of the Criminal Law Consolidation Act 1935 provides a defence if an alleged victim was of or above the age of 16 years and the accused believed on reasonable grounds that the alleged victim was of or above the age of 17 years - the trial judge directed the jury that they could convict on the basis that the events occurred in 1986 or 1989 - whether the trial judge erred in directing the jury that they could convict on the basis of the offences occurring either in 1986 or 1989 - whether in the circumstances the date specified in the Information was a material fact that had to be proved beyond reasonable doubt - whether the trial judge erred in directing the jury concerning the victim's delay in complaint - whether the trial judge erred in directing the jury by giving insufficient emphasis to alleged inconsistencies in the victim's evidence - held, appeal dismissed - the trial judge correctly directed the jury - in this case, the date on which the offences occurred was not a material fact.
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED
Whether the verdicts were unreasonable or insupportable given alleged inconsistencies in the victim's evidence - whether the verdicts were bad for duplicity and uncertainty because the trial judge left open for the jury to find that the acts occurred in either 1986 or 1989 - held, appeal dismissed - the alleged inconsistencies were before the jury and the verdicts were reasonably open to the jury - the verdicts were not bad for duplicity and uncertainty as there is no danger that the parties were describing different incidents, the only dispute being the date.
EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PRIVILEGE - PROFESSIONAL CONFIDENCE - MEDICAL PROFESSION
Appellant sought to adduce evidence of communications between the victim and her psychiatrist - access to the evidence refused by the trial judge - held, appeal dismissed - trial judge approached the matter correctly.
Criminal Law Consolidation Act 1935 s 49; Evidence Act 1929 s 67D, s 67F, referred to.
R v Pfitzner (1976) 15 SASR 171; R v Stehbens (1976) 14 SASR 240, applied.
Johnson v Miller (1937) 59 CLR 467; Jones v The Queen (1980) WAR 203; South Australian Police v Durbridge (1993) 61 SASR 22; R v Dossi (1918) 13 Cr App R 158; R v Frederick [2004] SASC 404; R v H (1995) 83 A Crim R 402; R v Khouzame (1999) 108 A Crim R 170; R v Lapthorne (1989) 40 A Crim R 142; R v Suckling (1998) 104 A Crim R 59; R v Trotter (1982) 7 A Crim R 8; R v Zampogna (2003) 85 SASR 56; S v The Queen (1989) 168 CLR 266; Walsh v Tattersall (1996) 188 CLR 77, distinguished.
Question of Law Reserved (No 1 of 2000) (2000) 77 SASR 344, discussed.
R v W, GC
[2006] SASC 376
VANSTONE J. I agree that this appeal should be dismissed and with the reasons given by David J.
LAYTON J. I agree with the conclusions of Vanstone and David JJ that the appeal should be dismissed but my reasons for so concluding in relation to grounds 1, 2 and 3 differ in some respects from those of my judicial colleagues. Otherwise I agree with their reasoning in relation to the remaining grounds.
As indicated under the heading summary “The Charges and the Evidence” set out in the reasons of David J, the appellant was charged with two counts of unlawful sexual intercourse with V. The sexual acts were alleged to have taken place on the same occasion “between the 31st day of January 1986 and the 28th day of February 1986 at Renmark or another place”. At trial the appellant admitted he had performed both sexual acts as alleged by the prosecution, but said that they had not occurred in 1986 (when she was 13 years of age), but in 1989 (when she was 16 years of age) and that he believed on reasonable grounds that she was at least 17 years of age. Hereafter I will refer to both offences together in the singular as either “the offence” or “the incident” depending on the context, since the submissions apply to both and it will be unnecessarily complicated to do otherwise.
Ground 1 - Failure of the trial judge to direct the jury that the date of the offence as alleged in the Information was a material particular
Mr Peek QC, counsel for the appellant, submitted that an offence under s 49(3) of the Criminal Law Consolidation Act1935 (SA) (“the Act”) is a class of case in which the date of the offence is a material particular which must be proved by the prosecution beyond reasonable doubt. It was submitted that as the proof of the age of V was an essential element of the offence, the prosecution was required to prove the date of the offence in accordance with the particulars of the charge, namely between the 31st day of January 1986 and the 28th day of February 1986 (hereafter referred to for convenience of argument as “February 1986”). It was further submitted that the prosecution well knew that the date of the offence was challenged by the defence but chose not to amend the Information. Therefore, it was argued that the trial judge was required to direct the jury that if they were not satisfied beyond reasonable doubt that the incident occurred in February 1986 they must acquit.
In addition it was submitted that although this argument was not raised by counsel for the appellant at trial, it was appropriate to now raise it as a matter of law. It was argued that if the jury were not satisfied that the incident occurred in February 1986, they were required to return a verdict of not guilty and there was no need to consider whether it took place in 1989 nor the belief of the appellant as to the age of V at the time of the incident. Further support for the overall submission that February 1986 was a material particular, was the nature of the defence contained in s 49(4) which contains two elements, namely, that the complainant must be “of or above the age of sixteen years” and the appellant believed the complainant was “of or above the age of seventeen years”, which again both focus on precise age.
Mr Peek cited a number of cases and references, in particular the well known authority of R v Dossi,[1] where Atkin J stated the general principle in the following terms:
From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the offence…Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence.
[1] (1918) 13 Cr App R 158, 159-60.
Further, in R v H,[2] Mullighan J (with whom Perry and Debelle JJ agreed) stated:
Dates in particulars of a charge are not to be regarded as an element of the offence or even as a material matter unless it is an essential part of the offence: Dossi (1918) 13 Cr App R 158; Pfitzner (1976) 15 SASR 171; McDermott (1987) 45 SASR 335; Jacobs [1993] 2 Qd R 541; Hartley (unreported, Court of Criminal Appeal, SA, Prior, Olsson, Perry JJ, No 94-294, 6 September 1994) and G (unreported, Court of Criminal, Appeal, SA, Cox, Olsson, Mullighan JJ, No 95-13, 4 April 1995). Examples where that could be the case are where the age of the alleged victim is an essential element of the charge, or, in former times, where the one year and one day rule applied in cases of homicide.
[2] (1995) 83 A Crim R 402, 410.
Similarly, in R v Frederick,[3] Duggan J (with whom Bleby and Anderson JJ concurred) stated:
It is clear that, as a general rule, averments in an information relating to time and place are immaterial. If it established that the act or acts relied upon to constitute the element of the offence were within the jurisdiction, the precise location is not an element of the offence except where the definition of the offence requires proof of particular location such as the offence of larceny in a dwelling house. Allegations as to time will be material in some cases such as in the case of those sexual offences where the age of the complainant is one of the elements of the offence.
[3] [2004] SASC 404, [36].
In my view these authorities provide neither a support nor a springboard for the appellant’s argument. It is true that the age of a complainant is an essential element of an offence under s 49 of the Act, and it must be proved that at the relevant time of the offence, the complainant was over 12 and under 17 years of age. However, it does not follow that the date of the offence as alleged in the particulars in the Information thereby becomes a material particular to be proved by the prosecution. On the contrary, the starting point as indicated in R v Dossi, is that it is generally not a material particular, though there may be an individual case[4] in which the particulars of the precise date of the offence may be material. It is not a standard material particular as appears to be argued by the appellant, nor is it in my view a material particular in the circumstances of this case.
[4] R v Pfitzner (1976) 15 SASR 171, 185.
In this case, one of the elements of the offence which was required to be proved, was that V at the time of the incident, the commission of which was agreed, was over 12 and under 17 years of age. There was no doubt that as at both the date on which the prosecution contended the offence was committed (February 1986) and the date when the defence contended the incidents occurred (February 1989), V was over 12 and under 17 years of age. Therefore the date of the offence as contended in the Information was not a material particular which the prosecution was required to prove, nor was the jury required to be satisfied that the incident had occurred in February 1986 before they could return a verdict of guilty to the offence. The fact that the appellant sought to rely on February 1989 as the date, in order to prove the defence under s 49(4) of the Act, does not alter the situation. Rather the specific wording of the defence in s 49(4)(a) which places the burden on the defence to prove on the balance of probabilities that the complainant was “of or above the age of 16 years”, tends to suggest to the contrary of the appellant’s argument. The fact that a defendant seeks to activate the defence does not of itself render the particulars as to the date of the offence to be a material particular. It all depends on the circumstances of a particular case.
In short, the date of the offence as set out in the particulars in the Information is not required to be proved by the prosecution as a material fact simply because it relates to an alleged offence under s 49 of the Act. Further, it did not become a material particular in the circumstances of this case. I therefore reject that ground of appeal.
Grounds 2 and 3 - The uncertainty of the verdict
In these grounds Mr Peek sought to argue two related points. First he submitted that the trial judge erred in not directing the jury to deliver separate verdicts when the evidence lead and adduced disclosed two separate incidents - the first in 1986 (as alleged by the prosecution) and the second in 1989 (as alleged by the defence). This factor was argued to have given rise to the uncertainty of the verdict. The second related argument was that there was a real possibility that some members of the jury convicted on the basis of the 1986 incident and others on the basis of the 1989 incident whilst still others may have wished to acquit on basis of the 1989 incident, on the ground that reasonable belief of V’s age had been established. It was argued that there was uncertainty as to whether there was a statutory majority in favour of either alternative. This was argued as an additional basis for the invalidity of the verdict. The result was that the convictions should be quashed for uncertainty. It was submitted that either the prosecution should have amended the Information, or if it did not then the trial judge should have requested the jury to indicate whether the verdict was based on the 1986 incident or the 1989 incident.
Mr Peek developed his arguments in his usual systematic and thorough style with many historical and recent authorities referred to in support of his propositions. However, many of the authorities on which he relied did not refer to the precise circumstances in this case and are clearly distinguishable. The principles for which the cited authorities stand, do not apply to the circumstances here.
Mr Peek correctly accepted that there was no duplicity in relation to the charge as contained in the Information. His argument was directed to what is described as latent duplicity or uncertainty of the verdict. He referred to the two established categories of case in which there can be a quashing of the verdict. First, where there is one count charged on a particular day, but there are a number of different or multiple incidents occurring on the same day, each of which could make out the charged offence.[5] Secondly, where there is one count charged as having occurred within a range of dates but the evidence discloses a number of different or multiple incidents occurring within the same time frame.[6]
[5] See, eg, Johnson v Miller (1937) 59 CLR 467; R v Trotter (1982) 7 A Crim R 8; Jones v The Queen (1980) WAR 203.
[6] See, eg, S v The Queen (1989) 168 CLR 266.
There is indeed strong authority for the proposition that if evidence is lead or adduced in cases in which there is uncertainty as to which incident has formed the basis of the verdict because of the multiplicity of incidents, the verdict is uncertain and provides a basis for quashing the verdict. But that is not the situation which exists here. There is no multiplicity of incidents, there is only one incident which is agreed to have occurred, the only difference is the date on which it occurred. This circumstance does not lead to latent duplicity nor uncertainty of verdict and it does not matter whether some members may have thought it was in 1986 or others in 1989; the incident is the same. It does not become a different offence by reason of the difference in date.
Mr Peek referred to a number of authorities in which there were either a multiplicity of items,[7] or a multiplicity of acts,[8] or issues as to whether there could be a characterisation of continuous activity,[9] which lead to uncertainty of the verdict because it could not be determined which conduct or act the verdict of the jury applied. These cases do not deal with or reflect the factual situation here. There is no lack of clarity about the incident to which the verdict applied.
[7] eg R v Suckling (1998) 104 A Crim R 59.
[8] eg R v Lapthorne (1989) 40 A Crim R 142; South Australian Police v Durbridge (1993) 61 SASR 22; R v Khouzame (1999) 108 A Crim R 170.
[9] eg Walsh v Tattersall (1996) 188 CLR 77.
The appellant also relied on two further South Australian cases of R v Frederick and R v Zampogna,[10] which are referred to in detail in the reasons of David J and with respect I agree with his Honour’s analysis and consider that the cases are distinguishable for the reasons which he indicates.
[10]R v Frederick [2004] SASC 404; R v Zampogna (2003) 85 SASR 56.
I also agree with David J that the trial judge properly directed the jury in relation to s 49(4) of the Act. There is no suggestion of unfairness. I also agree that there may be different paths to a conviction and it is unexceptional that upon there being a conviction in such a situation, it is incumbent upon the sentencing judge to arrive at an appropriate factual basis for sentencing.
For these reasons I consider that the appeal should be dismissed.
DAVID J.
Introduction
After a trial by jury in the District Court, the appellant was convicted of two counts of unlawful sexual intercourse with a person between the ages of 12 and 17 years, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (“the Act”).
The prosecution case alleged that on the same occasion in 1986 the appellant had performed an act of cunnilingus upon the complainant and also had vaginal sexual intercourse with her. The complainant would then have been 13 years of age.
At trial the appellant admitted he had performed the sexual acts as alleged by the prosecution, but said that they had occurred in 1989, not in 1986. He gave further evidence that although the victim was 16 years of age when the said sexual acts took place, he believed on reasonable grounds that she was at least 17 years of age.
The appeal focuses on the trial judge’s directions that the jury could convict the accused irrespective of whether the sexual acts took place in 1986 or 1989. The appellant argues that the prosecution is bound by the dates of the offences as alleged in the particulars of the two counts, namely that they occurred “between the 31st day of January 1986 and the 28th day of February 1986”. He argues that the judge should have instructed the jury accordingly.
The appellant also argues that the trial judge erred in denying the appellant access to the medical notes of a psychiatrist who had been treating the complainant.
The Charges and the Evidence
The appellant was charged with two counts of unlawful sexual intercourse with the complainant (whom I will refer to as “V”). One count alleged an act of cunnilingus, and the second an act of vaginal sexual intercourse. Both sexual acts were alleged to have taken place on the same occasion “between the 31st day of January 1986 and the 28th day of February 1986 at Renmark or another place”.
V gave evidence that she was born in 1972. She said that when she was young her family would often go on houseboat trips, normally in the summer school holidays. They were mainly accompanied by friends, and a houseboat trip would last about a week. She said she had known the appellant since she was about eight or nine years of age. He was a good friend of her parents. He was, and still is, a medical practitioner. V said the first time that the appellant came with them on a houseboat was in 1986. Other than her family and the appellant, there were a number of other people on the houseboat. V said that one night after everyone had gone to bed she was awoken by the appellant and acts of cunnilingus and vaginal sexual intercourse took place. The sexual acts occurred at the front of the houseboat where she and one of her sisters had been sleeping. She said she did not tell anybody because she was embarrassed, especially as the appellant was a good friend of her parents. She said that at that time she was 13 years of age.
V also gave evidence that she thought that it was 1986 when the sexual acts took place, because she had lost her virginity shortly before this in the same Christmas school holidays, and she was taking the contraceptive pill. This had been supplied by the appellant on an occasion when he attended at her house to visit her parents. She also identified the time as the beginning of 1986, because she was going into Year 9 at school and she said it was about the same time as she had first bleached her hair.
V finished school in 1988, and although she moved out of home, she still saw her parents and went on houseboat trips, often accompanied by the appellant and other people.
After 1986 she continued to see the appellant in a social context. However, she remembered him telephoning her on one occasion and saying how lovely having sex with her had been. She said this was the first occasion that she had contact with the appellant after the houseboat trip in 1986. She also gave evidence that the appellant was at her 16th birthday and continued to have contact with her family.
V gave further evidence that after she had married she started seeing the appellant on a professional basis as her general practitioner. These professional visits were on a regular basis. In about the year 2000 she was feeling depressed and the appellant referred her to a psychiatrist (whom I will refer to as “Dr G”). V gave evidence that she then saw Dr G on a regular basis, and as a result of those visits she complained to the police about what had happened with the appellant. She did that in August 2002. It was an agreed fact that between 29 March 2001 and 1 August 2002 V consulted Dr G on 40 occasions.
In cross-examination it was put to V by the appellant’s counsel, Ms B Powell QC, that nothing happened between herself and the appellant on the houseboat trip in 1986. V denied that assertion. It was further put to her that she had sexual relations with the appellant on a houseboat trip in February 1989. V denied that assertion and repeated that it was in 1986.
At trial the prosecution also called V’s parents. Although they gave evidence of the relationship between the family and the appellant and general details of the houseboat trips, it was understandable that their evidence did not support V’s evidence relating to the specific charges.
The appellant gave evidence on oath. However, after the prosecuting counsel opened to the jury and before any evidence was called, the appellant’s counsel was allowed to make a short opening to the jury. In that opening she said the following:
Ladies and gentlemen, from the defence point of view I can tell you that it will not be an issue for you as to whether the sex occurred. Consensual sexual acts, which are the subject of the information, occurred between Dr [W] and [V]. That will be common ground in the case and you need not worry about that. What your attention should be focused upon, as Ms Abbey put to you, is when it occurred because the defence case is that it occurred not on the houseboat trip in 1986, as [V] said, but in the houseboat trip in 1989 when [V] was 16 years of age and, accordingly, as Ms Abbey correctly put to you, the issue for you in the trial will be when did it occur, what do you think about that and what are you convinced about about that, and then, secondly, it will be for Dr [W] to establish to your satisfaction, on the balance of probabilities, that first he believed that [V] was 16 and, secondly, that he had reasonable grounds for that belief and in due course you will hear about that. So that you can start this trial knowing exactly what the issues joined between the prosecution and the defence are, and you need not concern yourselves at all as to whether these consensual acts of sexual intercourse took place or did not take place: timing will be the all important issue in this case. Thank you.
I am sorry, not that he believed she was 16 but he believed she was 17. I am sorry for that, don’t be confused by my slip-up. The defence case was it was 1989 when she was 16 years of age, but Dr [W] believed on reasonable grounds that she was 17 years of age which of course, his Honour in due course will tell you, is the age of consent.
The appellant gave evidence that he had been friendly with V’s parents for a number of years and he thought he first went on a houseboat trip with the family in 1983. He said he had gone on a houseboat trip with V and her family in February 1989, and during that trip V behaved in such a way that it led him to think that she was sexually attracted to him. He said he had been flattered. He said that one evening, when she had been sleeping in her cabin, he had performed an act of cunnilingus and had vaginal sexual intercourse with her. He said that when this occurred he thought she was 17 years of age. He said she was well developed, and her appearance was such that she could have been anything between 17 and 25 years of age. He denied that any sexual acts occurred in 1986. Both he and V were consistent in that both said that the sexual acts which are the subject of the charges only happened on one occasion. The fundamental difference between the evidence of the appellant and the evidence of V was in relation to the date.
The appellant’s defence was therefore that although he admitted that it had been proved that V was under the age of 17 years at the time that the sexual acts had occurred, he nevertheless believed on reasonable grounds that she was at least 17 years of age. Section 49(4) of the Act reads as follows:
(4) It shall be a defence to a charge under subsection (3) to prove that -
(a) the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged to have been committed, of or above the age of sixteen years; and
(b) the accused -
(i) [not applicable]
(ii)believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of or above the age of seventeen years.
The Trial Judge’s Summing Up
In his summing up the trial judge clearly set out the elements of the offence as being three, namely:
1.there was an act of sexual intercourse;
2.at the time the act took place the complainant was under the age of 17; and
3.the act of sexual intercourse was unlawful.
He also directed the jury in the following terms:
Now, you might think that in this case the accused has admitted all three elements of each of the offences; that is to say, he had sexual intercourse with [V] when she was under 17 in the sense that I have explained the term to you.
But there is one important matter that the accused does dispute and that is as to when those acts occurred. It is, of course, the prosecution case, and on the basis of [V’s] evidence, that they occurred in February 1986 and at no later time. If, on all the evidence, you are satisfied beyond reasonable doubt that they did in fact occur in February 1986 at a time when you might think [V] was 13, then you would likely find the accused guilty on both counts and you would not have to consider the question any further. But if you are not satisfied beyond reasonable doubt that those acts of sexual intercourse occurred in 1986, but if you think they occurred in February 1989 or thereabouts, as the accused said they did, then I must instruct you as to how you will deal with that finding.
As you know, in February 1989 [V] was still 16 years of age, she was under the age of 17. So, even on the accused’s account of events, the ordinary elements of the offence would be made out. But you must then consider whether the accused has a special defence available to him under the law.
The law provides that it is a defence to a charge of unlawful sexual intercourse if the accused proves: one, that he had sexual intercourse with a person who was in fact 16 years or more but less than 17 years old; and, two, that he believed on reasonable grounds that that person was then 17 years of age or more.
That defence has been raised by the accused in this case because, on all the evidence, [V] was 16 at the time he says there was sexual intercourse, and he otherwise says that he believed she was in fact 17 and that he had reasonable grounds for so believing. I must therefore instruct you as to how you should deal with that defence.
I said to you in my earlier remarks that the prosecution must prove its case, and every element of its case, beyond reasonable doubt. That is the usual rule in all criminal trials. But I also said there was an exception to it in this case, and it is that defence raised by the accused which gives rise to the exception.
Having raised that defence, it is the accused who must prove to you that he then believed in 1989 that [V] was 17 years of age and that he had reasonable grounds for so believing it. But, having said he must prove those matters, it is important for you to understand that he does not have to prove them to you at the same high level of proof that the prosecution faces in a criminal trial. He does not have to prove those matters to you beyond reasonable doubt. The accused, raising that defence, need only prove those matters to your satisfaction on the balance of probabilities; that is to say, he need only satisfy you that it is more likely than not that he then believed that [V] was of or above the age of 17 and that he then had reasonable grounds for so believing that.
So if you are not satisfied beyond reasonable doubt that the acts of sexual intercourse with [V] occurred in 1986, as the prosecution says they did, you will then consider if they happened in 1989, as the defence says they did. If you are satisfied beyond reasonable doubt that they did occur in 1989 you will still convict the accused on each count unless he has satisfied you on the balance of probabilities, first, that at that time he believed [V] was 17 years of age or more and, secondly, that he then had reasonable grounds for believing that.
Now, as to the first of those matters, I will discuss at a later stage the evidence advanced by the accused as fortifying his belief that [V] was then 17 years of age. It will be a matter for you as to whether the accused has satisfied you that it was more likely than not that he then held that belief.
As to the second matter, if you are then satisfied that he did so believe, you will then consider whether he had reasonable grounds for believing it. I should tell you that that is an objective test and one which you, as jurors and ordinary members of the community, must weigh up and apply. Has the accused satisfied you, on the balance of probabilities, that his grounds for believing [V] was 17 or more were reasonable ones? That is the question in that second aspect.
So if the accused satisfies you, on balance, that he did believe [V] was 17 or more and that his grounds for believing that were reasonable, then you will find his defence proved and you will acquit him on both counts. Otherwise, if you are not satisfied that he has proved those matters on the balance of probabilities, but if you otherwise find the elements of each count proved beyond reasonable doubt then you will convict him of those offences.
I should stress here that you are not being asked for separate verdicts depending on the findings you make as to when the incident occurred. You will be asked the single question with respect to each count “How do you find the accused, guilty or not guilty?”
It is in relation to this direction that the appellant complains. I turn to the grounds of appeal.
Ground 1 - Failure of the trial judge to direct the jury that the date of the offence as alleged in the Information was a material particular
The appellant’s counsel, Mr Peek QC argues that in the present case the date of the offences alleged in the Information must be proved beyond reasonable doubt, otherwise the jury should have acquitted the appellant. He argues that although a date specified in an Information is often not a material fact, it becomes so when it is an essential part of the alleged offence. He argues that is the position in the present case. He therefore argues it had to be proved beyond reasonable doubt that the sexual acts took place in February 1986. He argues that the jury should have been directed that if the conduct was not proved to have occurred in that month, the jury should bring in verdicts of not guilty.
Mr Peek puts that the date alleged in the Information is an essential part of the alleged offences because it has to be proved that V was under the age of 17 years. As I understand his argument, he says that because reference to a date is an important part of the charges, therefore, the actual date as particularised has to be proved beyond reasonable doubt.
In my view, that argument has no substance. Although there may be cases where a date constitutes a material fact, that must be judged in the circumstances of an individual case: R v Pfitzner[11] per Bray CJ. In the present case, what was material was the age of V at the time of the offences, not the date on which those offences were said to have been committed. An identification of exactly when the alleged sexual acts took place within the range of those years was not a material factor demanding proof beyond reasonable doubt. It is also significant that in the present case there was never any confusion as to whether these sexual acts took place or not. The actual occasion and what happened was clearly identified in the evidence, because it was common ground to both sides that this only occurred once. What was controversial at trial was the date.
[11] (1976) 15 SASR 171, 185.
The appellant further argues that another reason why the date of the offences as stated in the Information is a material fact is because of the nature of the defence.
Mr Peek argues that because the defence as raised by s 49(4) of the Act stipulates a precise age which V must have reached, namely “of or above the age of 16 years”, it therefore follows that the date alleged in the Information must amount to a material fact.
Mr Peek argues that in order to raise a defence under s 49(4) of the Act the defence has to prove that the sexual acts took place on a day other than “the alleged date”. Therefore, Mr Peek argues that it follows that that “alleged date” is a material fact which has to be proved beyond reasonable doubt.
In my view, the defence provided by s 49(4) of the Act does not place a further onus upon the prosecution to prove the date alleged in the Information beyond reasonable doubt. Section 49(4) creates a defence, placing the onus upon the defence to prove it on the balance of probabilities. The fact that that defence is available or raised cannot alter the elements of the charges that the prosecution has to prove.
I would reject that ground of appeal.
Grounds 2 and 3 - The uncertainty of the verdict
The appellant argues that the convictions are bad for duplicity and uncertainty because as a result of the way that the trial judge directed the jury, they could find that acts of unlawful sexual intercourse took place in either 1986 (as the prosecution alleges) or in 1989 (as the appellant alleges). In either case the jury could bring in verdicts of guilty.
Mr Peek argues that it is unclear whether the appellant has been found guilty of acts of unlawful sexual intercourse in 1986, when the complainant was 13 years of age, or according to his argument, less serious offences which took place in 1989, when she was 16 years of age. He argues that upon receiving verdicts of guilty the trial judge should have asked the jury whether those verdicts were based on a finding of 1986 or 1989. He also argues that the prosecution should have laid alternative charges on the Information, alleging 1986 or alternatively 1989. Mr Peek argues that if that had been done the confusion as to when the offences took place would have been obviated.
In support of his arguments on this ground of appeal Mr Peek cited many cases, but two were of significance, namely the decisions of this Court in R v Frederick and R v Zampogna.[12]
[12] R v Frederick [2004] SASC 404; R v Zampogna (2003) 85 SASR 56.
In R v Frederick[13] (“Frederick”) the defendant was charged with one count of indecent assault and four counts of unlawful sexual intercourse alleged to have been committed upon his stepdaughter between 1 January 1983 and 1 October 1983. He was convicted of the count of indecent assault. He was acquitted of three counts of unlawful sexual intercourse, but found guilty of one count of unlawful sexual intercourse. That count was identified as the last occasion upon which an act of unlawful sexual intercourse took place. The evidence led by the prosecution from the two main witnesses in relation to that count, upon which the defendant was convicted, was radically different. The complainant said that the act of intercourse took place at the defendant’s place of work and that it was the last time he had intercourse with her. The complainant’s mother gave evidence that she observed what plainly was the last act of intercourse between the complainant and the defendant, and that it took take place at the family home. It was argued by the prosecution that although there was a difference between the locations of the final act of intercourse, that was not a material fact, as there was no dispute between the two versions as to when the final act of intercourse took place. They both identified it as being the last occasion. In his summing up in Frederick[14] the trial judge had directed the jury that the strict legal position was that the location need not be proved beyond reasonable doubt. It was held that the trial judge should have required the prosecution to identify which version of the incident they relied upon to support a conviction. In Frederick[15] Duggan J said:
[13] R v Frederick [2004] SASC 404.
[14] Ibid.
[15] Ibid [22]–[32].
The prosecution evidence led in support of the allegation in count 5 consisted of two versions which differed in fundamental respects.
K said that she was in the office at Holden Hill with the appellant on an occasion when intercourse took place on the floor in front of the appellant’s desk. The office was on the upper floor of commercial premises. There was no suggestion that J would have had an opportunity to observe this incident and was subsequently confused as to where it took place. K described how she went home with the appellant after the incident and her description of the aftermath involving her leaving home is quite different from that given by J.
J said she saw an act of intercourse between the appellant and K in progress on the floor of the lounge room of the house at Gilles Plains. She said it was in the early evening. K denied that any such act had taken place at any time in the home.
The appellant denied having sexual intercourse with K on any occasion.
The prosecution case proceeded on the assumption that both witnesses were purporting to describe the same incident. It was argued that the discrepancies could be explained by the lapse of time between the incident and the laying of the charges. However, in light of the degree of disparity between the versions there is doubt as to the validity of that assumption. It is difficult to explain the differences in the versions on the basis of faulty memory. It could hardly be supposed that J might have been looking through a window of the office when she saw the alleged act of intercourse. On the other hand K specifically denied any act of intercourse in the house.
It was argued by the prosecution both at trial and on the hearing of the appeal that the offence alleged in count 5 was sufficiently particularised as “the last occasion of sexual intercourse”. This was based on the evidence of K that the appellant did not have intercourse with her after this alleged incident and the evidence of J that K left the home shortly after the incident she described so that there was no opportunity for the appellant and K to have sexual intercourse from that time on.
The first difficulty in particularising the act in this way is that the evidence of K and J as to the circumstances in which K left differs in important respects. This is apparent from the summary which is set out above. Furthermore, there is other evidence which casts doubt on the details of when and in what circumstances K left home.
The evidence of J as to the time at which K left home was inconsistent with other apparently reliable evidence. J said that K left before her sixteenth birthday on 11 May 1983. K and her sister (“M”) both said that K did not attend school after she left home. She had been attending a girls’ school and a statement was tendered from the principal of the school which established that K did not leave the school until the end of August 1983. The appellant said in evidence that K left home on about 26 August 1983. M gave evidence that when K came to live with her there had been no prior arrangement for her to do so. K simply arrived with her boyfriend and stayed there from that time on. This is contrary to the evidence of J that she contacted M and made arrangements for K to live with her.
There is a danger in drawing an inference from the evidence of K and J as to the circumstances in which K left home to establish that they were talking about the same incident and that it is therefore appropriate to describe it as the last act of intercourse. The versions which they gave of the incident which each said took place would seem to be a more accurate indication as to whether they were purporting to describe the same incident. The particularisation of their respective versions as the last occasion on which intercourse took place attributes a commonality to the two versions which is not supported by the evidence. It does not assist in identifying the circumstances of the act of intercourse which is alleged to have taken place on that occasion.
In this state of the evidence and in light of the directions given in the summing‑up, it cannot be determined by what path the jury reached their verdict on count 5. They could have proceeded on the basis of a reconciliation of the versions of K and J in some way. Alternatively, the verdict might have been based on an acceptance of K’s evidence that she had intercourse with the appellant in the office or the jury might have accepted J’s evidence that she saw an act of intercourse in the lounge room of the home. As a further alternative, it is possible that some jurors accepted the evidence of K as to the essential features of her version and rejected the evidence of J and that others accepted the evidence of J and rejected the evidence of K, thus leading to uncertainty as to whether the verdict was unanimous in the acceptance of one version or another. (cf. S v The Queen (1989) 168 CLR 266 at 276).
In the somewhat unusual circumstances of the case it is my view that the trial judge should have required the prosecution to elect which version or incident they relied upon to support a conviction on count 5. The question of election was raised by the defence on two occasions during the trial. The same result would have been achieved by requiring the prosecution to further particularise count 5.
In the present case the appellant seeks support from Frederick[16] and equates the diversions as to location in that case with the differences in time in the present case. However, there is a fundamental difference between the two cases. In Frederick[17] there was genuine confusion as to whether both witnesses were talking about the same incident, even though it was particularised as the last occasion when intercourse took place. For that reason there was a real danger they may have been talking about two different incidents and, therefore, more specific particulars were needed. In the present case there was only the one occasion. There could be no confusion as to whether the parties were talking about different occasions. The facts themselves clearly identified two acts of unlawful sexual intercourse between the complainant and the appellant on a houseboat. One was an act of cunnilingus and one was an act of vaginal intercourse. There was no room for any confusion about the actual incidents. The difference between the two versions was the date.
[16] R v Frederick [2004] SASC 404.
[17] Ibid.
The appellant also relied upon R v Zampogna (“Zampogna”).[18] In that case the defendant was charged and convicted with possessing methylamphetamine for the purposes of sale. Methylamphetamine was found by the police in two small plastic bags in the front passenger seat of his car (P5). When the defendant was conveyed to the police station and searched, another plastic bag (P8) was found hidden in his underpants. When he was arraigned the defendant pleaded “not guilty for sale; guilty of possession”. The plea was not accepted by the prosecution and the trial proceeded on the question of whether he was in possession of methylamphetamine for sale. In his evidence the defendant admitted possession of the methylamphetamine found in the car, but said that the bag found in his underpants belonged to a friend. He said he discovered the bag in the pocket of a borrowed jacket as police searched his car, and only then hid it in his underpants. At the trial there was unresolved confusion as to whether the defendant’s concession as part of his original plea that he was guilty of possession could apply to the methylamphetamine found on his person at the police station. The ambiguity about the plea was important because a combination of both the methylamphetamine found in the car and at the police station enlivened the presumption provided for in s 32(3) of the Controlled Substances Act 1984, whereby the defendant had to prove that he did not have the drugs in his possession for the purposes of sale. Duggan J, with whom Doyle CJ and Gray J concurred, said the following:[19]
In a case such as the present there may be a number of paths to conviction which are technically open on the evidence. However, it is important from a practical viewpoint to have regard to the way in which the case has been conducted and, in particular, the basis upon which the prosecution case has proceeded.
In this case, the prosecution was prepared to assume responsibility for proving that the appellant was in possession of both P5 and P8. If the case had been left to the jury on this basis, the complexity and uncertainty which arose subsequently would not have eventuated. The alternatives left to the jury created complexity with respect to the application of s 32(3) as well as rendering the verdict uncertain.
In my view the combined effect of the ambiguous plea, the manner in which the plea affected the conduct of the prosecution and defence cases and the directions on possession arising from the appellant’s version in evidence led to uncertainty in the verdict which, in turn, resulted in a miscarriage of justice.
[18] (2003) 85 SASR 56.
[19] Ibid 64.
As can be seen, although relied upon by the appellant in this case, Zampogna’s[20] case deals with questions of the application of s 32(3) of the Controlled Substances Act, and the uncertainty in that case of the effect of the plea of guilty to possession of the methylamphetamine.
[20] Ibid.
As I have indicated, in the present case the matter is uncomplicated by reason of the fact that there was only ever one occasion where sexual acts took place. The trial judge clearly left the defence case to the jury, and properly directed the jury in relation to s 49(4) of the Act. It was not a case where there were a number of allegations made and the jury was invited to choose one which related to the Information.
There is no suggestion that the wide difference in the dates between the prosecution and the defence cases gave rise to unfairness. The fact that there may be different paths to a conviction, namely the events taking place in 1986 or 1989, is unexceptional. It is also unexceptional that upon there being a conviction in such a situation, it is incumbent upon the sentencing judge to arrive at the basis of fact upon which the appellant should be sentenced: R v Stehbens.[21]
[21] (1976) 14 SASR 240.
In light of my findings in relation to grounds 1 and 2, it is not necessary to consider the reason why none of these points were raised at trial by defence counsel. The Court has been provided with an affidavit of Belinda Jane Powell QC, who acted for the appellant at trial. She swears that she did not intentionally refrain from raising the issues of uncertainty at trial out of any tactical motive or purpose. There is no dispute that that is the situation.
I turn to grounds 5 and 6 as ground 4 raises a distinct argument.
Ground 5 – Inadequacy of the judge’s directions on delay
In his summing up to the jury on the question of delay, the trial judge gave the following directions:
Now, I want to say something, then, to you about the question of delay. Depending on the view you take as to when the incident occurred, it was some 13 or 16 years after the events that [V] decided to tell anybody about them and to report them to the police. You heard the evidence that in 2002 and after speaking to Dr [G] she went to the police. Even then, this matter has taken some time to get to trial, as you will notice.
You heard her explanations for why she delayed so long; that she was at first embarrassed and distressed to tell anybody. She spoke of then falling into a state of rebelliousness and depression and it was only as she became a mature adult and spoke to Dr [G] that she realised that what had happened was wrong and should not have happened, and it was then, she said, that she decided to report it.
The defence has not specifically criticised her for that delay but it has suggested that those intervening events, particularly her depression and consequent treatment, may have affected the reliability of her evidence. You may yourselves be wondering about how you should deal with that question of delay. It is, of course, for you to assess [V’s] explanations for it and your conclusions as to that may assist you in your assessment of her credibility and reliability generally. And those aspects of her evidence are important because the prosecution case as to when the alleged acts occurred rests almost entirely on her evidence; and the defence has, as I say, attacked that evidence, particularly its reliability.
Plainly, there is no eyewitness here who can support her account of the incident occurring, as she says it did, on the 1986 trip. But there is evidence that she and the accused were on the houseboat in that year, and it is a matter for you as to whether you think that what she says about that is supported by other matters.
One such matter advanced here is that she says in consequence of what then occurred she became unhappy, depressed and rebellious, and that one aspect of that was the dyeing of her hair or bleaching of her hair. It is for you to decide as a matter of fact whether you accept that she did behave in that way and, if so, as to the nature and extent of it.
If you find she did so behave, it is important that you understand how that evidence may properly be used in the course of your deliberations.
You should appreciate that such behaviour may result from any one of several possible causes. It may, of course, have been caused by the commission of the offence as [V] suggested it was. It may be that it was the continuation of a condition her mother said she had when she was 12 years old and before these alleged events. It may be that it was an ordinary consequence of adolescence. It may have been a genuine condition but quite unrelated to anything involving the accused.
You will have to make your own assessment of that. However, if you find that she did genuinely become unhappy, depressed and rebellious and that it was consistent only with her claim that the accused had unlawful sexual intercourse with her in 1986, it can be an aid to you in assessing the credibility and reliability of her complaint. Depending on the view you take of it, it may indicate to you that her behaviour at that time was consistent with the events she has spoken of.
However, you must exercise considerable caution in making your assessment about this because of the evidence of her mother as to the difficulties she says [V] had from the age of 12 and the potential number of other unrelated causes which might have given rise to this behaviour.
In the final analysis, the evidence of distress, if you accept it, may assist you when you decide what weight to attribute to her evidence.
But there is another matter which arises out of the delay in question I have mentioned, and that is its impact upon the accused. Had [V’s] allegations been made soon after the alleged event, the accused would have been able to explore and test them in detail at an earlier time and perhaps to find evidence throwing doubt on her story, or part of it, or otherwise supporting his. For example, he might have gained some assistance from being able to speak to, or call as witnesses, if it was possible, [S] or [C], or from being able to locate or produce other photographs.
Given the lapse of time, he has lost that opportunity, an opportunity that might have helped his defence: we simply do not know that, but it might.
Alternatively, his ability to pursue any such evidence has been limited or he may have greater difficulty now in properly remembering circumstances that would assist him.
In all those circumstances you should exercise great care, indeed, in evaluating [V’s] evidence, and you should not convict the accused on her evidence alone unless, after scrutinising it with that degree of care and paying heed to my warning, you are nevertheless satisfied as to its truth and accuracy.
The appellant now argues that that direction was not strong enough. I disagree. The direction was clear and it related the warning of delay to the facts of the case and was according to principle.
The appellant also argues that certain parts of the evidence which are summarised in ground 6 of the Notice of Appeal indicate that V’s evidence about the date was unreliable and the judge did not adequately deal with those in his summing up to the jury. Those matters include:
·The tendering by the appellant at trial of photographs which contradicted V’s evidence that shortly after the houseboat trip in which the sexual acts occurred she bleached her hair for the first time.
·The tendering of photographs which contradicted her evidence that the sexual acts took place on the first houseboat trip that the appellant attended.
·The tendering by the appellant at trial of a school report which contradicted V’s evidence that the year following the sexual acts (1986) she was in a troubled state of mind. The tendered report suggested the contrary.
·Evidence from V’s mother which contradicted certain parts of V’s evidence as to the date when the sexual acts occurred, namely that the houseboat trip in 1986 was not the first trip which included V’s younger sister.
In my view, there was no unfairness in the judge’s summing up. Those matters which went to the reliability of V’s evidence about the date when the sexual acts occurred were clearly canvassed in defence counsel’s final submissions and referred to by the trial judge. The issues were clearly before the jury.
Ground 6 – That the verdicts are unreasonable and/or unsafe and unsatisfactory
Other than the matters already argued about uncertainty, there are certain inconsistencies referred to in ground 5 which the appellant argues indicate that V’s evidence about the date of the sexual acts could not be proved beyond reasonable doubt. Alternatively, Mr Peek argues that those inconsistencies can be used as a basis for directing an acquittal rather than ordering a re-trial. As I have indicated, those inconsistencies which are set out in the Notice of Appeal and in a document provided to the Court, were clearly before the jury and were the basis of argument by defence counsel, and in my view, of themselves could not be a basis for overturning the jury’s verdict.
Ground 4 – Judge’s refusal to allow access to Dr G’s medical notes
Before trial the appellant sought leave pursuant to s 67F(1)(b)(i) of the Evidence Act 1929 to adduce evidence of communications between V and Dr G, a psychiatrist. V was referred to Dr G in March 2001 and saw him regularly until February 2004.
During the course of the committal proceedings the appellant subpoenaed Dr G’s notes, but inspection of the notes was refused by the presiding magistrate pursuant to s 67F(1) of the Evidence Act. That decision by the magistrate involved the question whether the notes subpoenaed were “protected communications” within s 67D of the Evidence Act. The appellant instituted proceedings by way of judicial review of the magistrate’s decision before a single judge of this Court, and then on appeal to the Full Court. Both the single judge and the Full Court held that the communications passing between Dr G and the complainant were protected communications within the meaning of s 67D of the Evidence Act. I set out in full the relevant section of the Evidence Act.
Division 9—Protected communications
67D—Interpretation
In this Division—
committal proceedings means proceedings for the preliminary examination of a charge of an indictable offence;
counsellor or therapist means a person whose profession or work consists of, or includes, providing psychiatric or psychological therapy to victims of trauma (and includes a person who works voluntarily in that field);
protected communication means a communication that is protected by public interest immunity under section 67E;
psychiatric or psychological therapy includes counselling;
therapeutic context - a communication relating to a victim or alleged victim of a sexual offence is made in a therapeutic context if -
(a) the communication is made -
(i)to enable a counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or alleged victim, or consequent psychiatric, psychological or emotional harm; or
(ii)for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim; and
(b) the communication is made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality.
67E—Certain communications to be protected by public interest immunity
(1) A communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity.
(2) However, the following communications are not subject to public interest immunity:
(a)a communication made for the purposes of, or in the course of, a physical examination of the victim or alleged victim of a sexual offence by a registered medical practitioner or registered nurse; or
(b)a communication made for the purposes of legal proceedings arising from the commission of the alleged offence or for commencing such legal proceedings; or
(c)a communication as to which reasonable grounds exist to suspect that the communication evidences a criminal fraud, an attempt to pervert the administration of justice, perjury or another offence.
(3) A public interest immunity arising under this section cannot be waived by -
(a)the counsellor or therapist; or
(b)a party to the protected communication; or
(c)the victim or alleged victim of the sexual offence or the guardian of the victim or alleged victim.
67F—Evidence of protected communications
(1) Evidence of a protected communication -
(a) is entirely inadmissible in committal proceedings; and
(b) cannot be admitted in other legal proceedings unless—
(i)the court gives permission to a party to the proceedings to adduce the evidence; and
(ii)the admission of the evidence is consistent with any limitations or restrictions fixed by the court; and
(c) is not liable to discovery or any other form of pre-trial disclosure.
(2) On an application for permission to adduce evidence of a protected communication, the judge may make a preliminary examination of the relevant evidence if satisfied that -
(a)the applicant has a legitimate forensic purpose for seeking permission to adduce the evidence; and
(b)there is an arguable case that the evidence would materially assist the applicant in the presentation or furtherance of his or her case.
(3) For the purposes of a preliminary examination of evidence, the court may order the counsellor or therapist to do one or more of the following:
(a)to provide written answers to questions;
(b)to produce written materials relating to the relevant protected communications;
(c)to appear for oral examination.
Exceptions—
1If the counsellor or therapist who provided the counselling or therapy is an employee, answerable to another (the principal) in the organisation in which the counsellor or therapist is employed, an order under this subsection is to be addressed to the principal unless the court is satisfied that there are good reasons for not taking that course in the circumstances of the particular case.
2An order requiring a person to appear for oral examination is not to be made unless the court is satisfied that the examination cannot otherwise be effectively conducted.
(4) The following provisions govern the conduct of a preliminary examination:
(a)the preliminary examination is to be conducted -
(i)in the absence of the jury (if any); and
(ii)in a room closed to the public; and
(b)the evidence taken at the preliminary examination is not to be disclosed to the parties or their legal representatives except to the extent determined by the court; and
(c)no record of the preliminary examination is to be available for public access.
(5) In deciding whether to grant permission to adduce evidence of a protected communication, the court is to weigh -
(a)the public interest in preserving the confidentiality of protected communications;
against -
(b)the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.
(6) In weighing the above considerations, the court is to have regard to -
(a)the need to encourage victims of sexual offences to seek psychiatric or psychological therapy and the extent to which the effectiveness of such therapy is dependent on the maintenance of confidentiality between the counsellor or therapist and the victim;
(b)the probative value of the evidence and whether its exclusion may lead to a miscarriage of justice;
(c)the attitude of the victim or alleged victim to whom the communication relates (or the guardian of the victim or alleged victim) to the admission of the evidence;
(d)whether admission of the evidence is being sought on the basis of a discriminatory belief or bias;
(e)the extent to which admission of the evidence would infringe a reasonable expectation of privacy and the potential prejudice to any person who would otherwise be protected by public interest immunity.
(7) The court is not to grant permission to adduce evidence of a protected communication unless satisfied that the public interest in preserving the confidentiality of protected communications is outweighed, in the circumstances of the case, by the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.
(8) If the court decides to grant permission to adduce evidence of a protected communication, it may make ancillary orders -
(a)to prevent further publication or dissemination of the evidence; or
(b)for any other purpose the court considers appropriate.
Once the Full Court found that the notes amounted to a protected communication within the Evidence Act, then the appellant could not have access to the notes at the committal proceedings: s 67F(1)(a). However, the Full Court’s decision did not preclude him from making a further application before the trial judge pursuant to s 67F.
The appellant applied to the trial judge to adduce evidence of that protected communication. In asking the judge to make a preliminary examination of the relevant evidence, the appellant argued that he had a legitimate forensic purpose for so doing. He argued that the credibility of V might be impugned because she and Dr G may have discussed the accused’s sexual conduct towards her. He also argued that in those discussions there might be material that could afford the basis of an attack upon her reliability, especially as to the dates issue in the trial. It was also argued before the trial judge that material that went to her psychiatric condition might provide a basis for an attack on her reliability. According to the appellant’s argument before the trial judge, there was no doubt that V spoke to Dr G about the sexual matters which were the subject of the charges, and that that information should have been made available as the basis of a proper “legitimate forensic purpose”.
The trial judge found that no legitimate forensic purposes were established for conducting a preliminary examination. He said:
But the applicant cannot point to any actual contamination or demonstrably inconsistent statement; the most he can say is that because of some demonstrated inconsistencies in her police statements and because she spoke with H before speaking to the police, he wishes to learn what she said to Dr [G] in case it might provide evidence of contamination or inconsistency.
That, as I apprehend it, is speculative and fishing, it is not a legitimate forensic purpose within the meaning of s 67F(2) and I decline to conduct a preliminary examination of Dr [G]’s notes on that footing.
The trial judge then considered his general discretion under s 67F(1)(b) and had regard to the matters set out in s 67F(5)‑(7). In considering those matters he said the following:
In doing so, I must weigh the public interest in preserving the confidentiality of protected communications against the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence (s 67F(5)). In that process, I must have regard to the matters set out in s 67F(6).
The needs of subsection (6)(a) are well recognised.
In considering subsection (6)(b), I keep in mind that for reasons already expressed, the applicant has not been able to identify the terms of any alleged communication upon which he relies. He has merely pointed to the possibility of there being useful evidence that might go to the question of credit – in those circumstances, I cannot be satisfied that there exists any evidence of probative value.
As to subsection (6)(c), the attitude of the victim is, of course, a relevant mater and I am conscious here that [V] has already disclosed in her statement some information relating to her communications with Dr [G]. I take some account of that, but it does not follow, and there is no evidence suggesting it, that she is, in consequence, content for the accused to have access to the material in the protected communications which he seeks. Indeed, through the prosecution, the release of that additional information has been opposed. Further to that, [V] will, of course, have been aware that the accused knew she was consulting Dr [G], because his practice in fact referred her to that doctor, so I do not infer that her mention of it discloses an attitude of non-opposition to a greater level of access by him.
I have not been addressed on any relevant consideration under subsection (6)(d).
Otherwise, with respect to (6)(e), it appears to me that admission of the material sought would infringe the reasonable expectations of [V] as to privacy.
In my view, the trial judge approached the matter correctly and I agree with his findings. I can understand why the appellant would wish to have access to at least inspect Dr G’s notes. I can also understand the difficulty the appellant had in not knowing what is in those notes and, therefore, being unable to point to a specific forensic purpose and being able to say how they may materially assist him in the presentation or furtherance of his defence. However, the intention of the legislature is clear, and in a situation where no specific forensic purpose can be identified the application must fail. The disadvantage to the appellant in such a situation was commented on by Lander J in Question of Law Reserved (No 1 of 2000):[22]
Of course in criminal proceedings an accused person will not ordinarily be aware of the communication or the evidence of that communication. It would be a relatively rare circumstance where an accused person was able to establish that there was a communication, the terms of the communication and the evidence of that communication.
It was put in those circumstances that some accused persons could go to trial without knowing that there were communications available which would qualify to be adduced as evidence under s 67F. I think that is right. I think that the scheme of the Evidence Act will preclude some accused persons from ever becoming aware of protected communications which might be relevant to the accused’s defence. But that, in my opinion, is the clear intent of the legislation.
[22] (2000) 77 SASR 344, 359-360.
As the matter was argued at trial, whatever disadvantage there may be to the appellant has to be seen in the light that there was never any dispute about V’s evidence that there were two acts of sexual intercourse while she was under the age of 17 years. There was also no dispute that this happened on one discrete occasion. Any challenge to her evidence would be merely as to the date.
I would dismiss this ground of appeal.
Conclusion
For the reasons given, I would dismiss the appeal.
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