SPC v The Queen

Case [2020] SASCFC 43

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

SPC v THE QUEEN

[2020] SASCFC 43

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Bampton)

28 May 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

Appeal against conviction for two counts of aggravated causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), three counts of aggravated threatening life contrary to s 19(1) of the CLCA and two counts of rape contrary to s 48(1) of the CLCA.

The victim of the offences was Ms X, the appellant’s wife. The offences occurred in the course of, and ultimately brought to an end, a tumultuous relationship between the appellant and Ms X. Ms X testified that their relationship was an abusive one and gave an account of violence and rape which preceded the charged counts (the relationship evidence).

The appellant appeals on the grounds that:

1.  The Judge failed to adequately direct the jury on the use of evidence of Ms X’s distress when she reported the offending to a police officer at the Two Wells Police Station.

2.  The Judge failed to properly direct the jury on the use of the evidence of the violent relationship on the element of consent on the rape charges.

3.  The verdict on count 8, the last rape offence, was unreasonable because the evidence could not exclude the possibility that the appellant failed to appreciate that Ms X was not consenting.

Held per Kourakis CJ (Nicholson and Bampton JJ agreeing), dismissing the appeal:

1.  It was not put by the prosecutor, nor left to the jury by the Judge, that Ms X’s distress was corroborative or supportive of her testimony. Moreover, counsel for the appellant at trial assented to the Judge’s proposal not to give any directions on the evidence of distress.

2.  The Judge’s directions on the use of the relationship evidence in considering whether the objective elements of the offence had been made out were sound.

3.  The verdict on count 8 was not unreasonable; it was amply supported by Ms X’s evidence. There was no evidentiary matter capable of raising a doubt as to the appellant’s guilt which could not be dissipated by the jury’s evaluation of Ms X’s testimony.

Criminal Law Consolidation Act 1935 (SA) ss 19, 24, 48; Evidence Act 1929 (SA) ss 34P, 34R, referred to.
R v Byczko (No 2) (1997) 17 SASR 460; R v Schlaefer (1984) 37 SASR 207; R v Dhir [2019] SASCFC 55, discussed.
Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Quist (2017) 127 SASR 471; R v Forrest (2016) 125 SASR 319; R v Pringle

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SPC v The Queen [2020] SASCFC 43
Case
[2020] SASCFC 43
Decision Date

CaseChat Overview and Summary

The appeal before the Supreme Court of South Australia concerned an appellant convicted of criminal offences. The appeal was brought by the appellant against the verdict of the jury.

The legal issues before the Court were whether the jury's verdict on count 8 was unreasonable or unsupported by the evidence, and whether there had been a misdirection or non-direction by the trial judge regarding the use of evidence of discreditable conduct.

The Court dismissed the appeal. Kourakis CJ found that the verdict on count 8 was amply supported by the evidence of Ms X, and that there was no evidentiary matter capable of raising a doubt as to the appellant's guilt that the jury could not have dissipated through their evaluation of Ms X's testimony. Nicholson and Bampton JJ agreed with the Chief Justice's reasons for dismissing the appeal on the unreasonable verdict ground. They also addressed the ground of appeal concerning the use of discreditable conduct evidence, noting that while a judge must explain the permissible uses of such evidence under section 34P of the *Evidence Act 1929* (SA), any failure to identify all possible permissible uses, in this instance, did not prejudice the appellant, as the judge had clearly directed the jury on both permissible and impermissible uses.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Finally, the verdict on count 8 was not unreasonable; it was amply supported by Ms X’s evidence. There was no evidentiary matter capable of raising a doubt as to the appellant’s guilt which could not be dissipated by the jury’s evaluation of Ms X’s testimony. The evidence Ms X migrated from China to Australia in 2009. She operated a stall where she met the appellant. They were engaged in February 2010 and were married in April of the same year. Their first child, J, was born in October of that year. In early 2011, they moved to a home at Mawson Lakes. Ms X testified that from that time the appellant began to abuse her by making disparaging and derogatory remarks. Ms X testified that later in 2011 the appellant raped her whilst they were on their honeymoon on Hainan Island, China. Ms X and the appellant moved from Mawson Lakes to a home in Wild Horse Plains where their second son, Z, was born in 2012. From 2014, the appellant commuted to Darwin for work. Ms X testified that he often returned from Darwin angry and abusive. He sometimes slapped her, pulled her hair, squeezed her cheek, or attempted to strangle her. Ms X gave evidence of an occasion on which the appellant slapped her head repeatedly and warned her, ‘If you fight back, I can hurt you more … I’m the alpha male in this house.’ In 2015, the appellant and Ms X travelled to Shanghai where they stayed with Ms X’s parents. Ms X testified that one night, in the presence of her family, the appellant struck her and placed his hands around her neck. He threatened to kill her family. The police attended and spoke to the appellant but did not arrest him. A photograph taken of Ms X after the assault showed bruising over her left cheekbone. The first count on the Information charged the appellant with aggravated cause harm. The offence was allegedly committed in November 2015 when the appellant and Ms X came into Adelaide to attend a pre-Christmas party at the Adelaide Casino, having planned to stay overnight at the home of the appellant’s mother. When they arrived home, Ms X threatened to tell the appellant’s mother about the assault in China. According to Ms X, the appellant became angry and dragged her across the floor of the house in plain view of his mother and step‑father. Ms X testified that the appellant’s step‑father ordered the appellant to stop, saying, ‘There’s not going to be any violence at my home.’ The appellant agreed that Ms X had threatened to complain to his mother but denied assaulting her. The appellant’s mother and step‑father gave evidence in the defence case, and also denied that any such conduct took place. Their evidence was that on that occasion Ms X was drunk and abusive. However, the appellant’s step‑father believed that the incident he described ‘definitely’ occurred in November 2016. The following morning, Ms X and the appellant drove home. Ms X testified that on the way there the appellant, who was still angry, pulled her hair, struck her head, arm and leg and choked her. That conduct was the subject of count 1.

Decision

Reasons for decision

I would dismiss the appeal on the unreasonable verdict ground.Conclusion I would dismiss the appeal. NICHOLSON J: I would dismiss the appeal for the reasons given by the Chief Justice. Whilst I agree with the Chief Justice’s reasons for the conclusion that the Judge’s discretion left no room for the use of the discreditable conduct on the issue of the appellant’s state of mind with respect to appeal ground 2, I make the following further observations concerning appeal ground 2. Section 34R of the Evidence Act 1929 (SA) and authority in this Court[9] are clear to the effect that a Judge, whether sitting alone or with a jury, must identify and explain the purpose for which evidence admitted under section 34P (discreditable conduct) may or may not be used. The reason why permissible uses must be identified is to ensure that the trier of fact appreciates how the discreditable conduct evidence might be of assistance in support of the prosecution case. However, to fail to direct as to permissible uses might also, on occasion, risk prejudicing the defence by enhancing the risk that an impermissible use might be deployed or a permissible use deployed in an incorrect or prejudicial manner.[10][9] See, for example, R v Forrest [2016] SASCFC 76; (2016) 125 SASR 319, R v Pringle [2017] SASCFC 9, R v Jones [2018] SASCFC 96; (2018) 131 SASR 532 and R v Quist [2017] SASCFC 37, (2017) 127 SASR 471.[10] R v Forrest [2016] SASCFC 76; (2016) 125 SASR 319 at [47], R v Pringle [2017] SASCFC 9 at [74], R v Jones [2018] SASCFC 96; (2018) 131 SASR 532 at [41] and R v Quist [2017] SASCFC 37, (2017) 127 SASR 471 at [162]. In the present case, the Judge clearly explained, and directed the jury’s attention to, seven permissible uses and clearly explained, and directed against, impermissible uses. However, even if there were to have been one or more additional permissible uses, the fact that they were not identified by the Judge was of no moment in this case. At worst, the prosecution may have been deprived of some further assistance. But, any failure in this respect, given the clear directions as to what was permissible and what was not permissible, was sufficient to confine the jury’s reasoning processes and would not have increased the risk of the jury reasoning in an impermissible way BAMPTON J: I would dismiss the appeal for the reasons given by the Chief Justice.

Ratio Decidendi

Legal Principle Established

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