SV(Appellant) v The Queen (Crown)

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Penfold ACJ
• Judgment Date: 04 September 2017
• Docket Number: File Number: ACTCA 41 of 2016
• Date: 04 September 2017

[2017] ACTCA 41

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Before:

Penfold ACJ

File Number: ACTCA 41 of 2016

SV

(Appellant)

and

The Queen

(Crown)

Representation:

Counsel

Mr H Ford (Appellant)

Ms K McCann (Respondent)

Cases Cited:

Doney v R (1990) 171 CLR 207

Faris v Conlon [2017] ACTSC 114

The Queen v LK [2010] HCA 17 ; 241 CLR 177

The Queen v Prasad (1979) 23 SASR 161

Vojneski v The Queen [2015] ACTCA 44

Legislation Cited:

Court Procedures Rules 2006 (ACT), r 5071

Crimes Act 1900 (ACT), s 287

Evidence Act 2011 (ACT), ss 13(1), 13(3), 13(5), 189, 189(1), 189(4)

APPEAL AND NEW TRIAL — appeal from Supreme Court — jury trial — sexual intercourse without consent — act of indecency.

APPEAL AND NEW TRIAL — PRACTICE AND PROCEDURE — initially unrepresented appellant — appeal against severity of sentence — application to amend notice of appeal to add appeal against conviction.

APPEAL AND NEW TRIAL — NEW TRIAL-IN GENERAL AND PARTICULAR GROUNDS — Particular Grounds — asserted discrepancy between forensic evidence and complainant's evidence — difference between evidence of absence and absence of evidence — failure to call three-year-old child as witness — difference between competence and credibility — competence generally not to be tested before jury — no risk of miscarriage of justice identified.

Decision:

• 1. The appellant is refused leave to amend his notice of appeal to add an appeal against conviction.

• 2. The parties will be heard on the orders required to ensure that there is no further delay in the hearing of the appeal against sentence.

Introduction

1 On 10 March 2016, SV was found guilty in the Supreme Court, by a jury, of one count of sexual intercourse without consent, and one count of an act of indecency without consent, both offences having been committed during the night of 25–26 January 2015.

2 On 10 August 2016, he was sentenced for those offences, and for a related offence of common assault transferred from the Magistrates Court. The sentences were as follows:

• (a) for sexual intercourse without consent, to 4 years imprisonment, from 9 March 2016 to 8 March 2020;

• (b) for act of indecency without consent, to 12 months imprisonment, from 9 March 2016 to 8 March 2017;

• (c) for common assault, to 3 months imprisonment, from 9 March 2016 to 8 June 2016.

3 The sentencing judge set a non-parole period of 2 years and 2 months.

The sentence appeal

4 On 2 September 2016, SV, unrepresented, filed an appeal against sentence, specifying his ground of appeal as ‘severity of sentence’.

5 For some time, little was done to progress the sentence appeal. However, eventually SV obtained legal representation, and his lawyer Mr Ford lodged an application to amend the notice of appeal to add an appeal against conviction. The application was eventually filed on 26 June 2017, although it did not attach a draft notice of appeal as required by r 5071 of the Court Procedures Rules 2006 (ACT), and the matter was listed before me for hearing on 5 July 2017.

Application for leave to appeal conviction — the hearing

Day 1: 5 July 2017

6 At the listed hearing date, Mr Ford appeared for the appellant, and produced a draft notice of appeal. He had not previously shown this document to the respondent. Copies of the draft notice of appeal were made by my associate and provided to me and to counsel for the respondent, and counsel for the respondent was given 15 minutes to read the draft notice, on the basis that Mr Ford would then make his submissions, but that if counsel for the respondent required further time before being asked to respond to his application, the matter would be adjourned.

7 Early in the hearing, I drew to the attention of the parties my decision in Vojneski v The Queen [2015] ACTCA 44, in which I set out at [20] the following matters to be considered on an application for leave to appeal a conviction out of time:

• (a) Whether there is an acceptable explanation for the delay in filing a notice of appeal and, where applicable, in filing the application for leave to appeal out of time, and whether the explanation is sufficient to justify by-passing the legislated time-limits, having regard among other things to the applicant's actions otherwise than in relation to the attempt to file an appeal.

• (b) That prejudice to the respondent militates against a grant of leave, but absence of prejudice does not of itself justify a grant of leave.

• (c) That prejudice to the respondent Crown might include:

  • (i) prejudice in conducting the appeal,

  • (ii) prejudice in conducting any new trial or other proceedings that might be ordered, and

  • (iii) the negative effects of a grant of leave on individuals, whether victims or others, who will be affected by the re-opening of proceedings after the expiry of the statutory appeal periods without any appeal having been filed.

• (d) That the merits of the appeal are relevant to whether leave should be granted and, in particular, that leave should not be refused if the court considers that there is a reasonable probability that refusal might cause a miscarriage of justice.

8 Mr Ford indicated, however, that the appellant's application for leave to appeal the conviction out of time depended on the assertion of a reasonable probability that a refusal of leave might cause a miscarriage of justice, and accordingly he did not propose to address the other specified matters.

9 During this hearing, Mr Ford queried the trial judge's approach to whether the children were competent to give evidence. It was initially unclear whether the trial judge had tested the competence of the older child before he gave evidence; in due course it emerged that this had been done, but that no transcript had previously been obtained. Arrangements were made to obtain a copy of the relevant transcript.

10 At the end of the day, I made an order for Mr Ford to provide any further submissions and authorities by 12 July, and listed the matter for further hearing on 19 July.

Day 2: 19 July 2017

11 On 19 July, Mr Ford raised further issues relating to the role of the children in the appellant's trial. His submissions went beyond the complaint in the draft notice of appeal of a failure to test their competence properly, and included whether the competency of the older child, who did give evidence, should have been tested in the presence of the jury, and whether the younger child should have been called to give evidence. Mr Ford also complained about the transcript of the trial judge's competency inquiry in relation to the older child (at [70] to [77] below).

12 At the end of the brief hearing, I made orders for a further exchange of submissions dealing with the various matters raised by Mr Ford in relation to the children, and listed the matter for mention and possible judgment hand-down on 4 September 2017.

Draft notice of appeal

13 The draft notice of appeal set out the following grounds of appeal:

1

That the verdict of guilty is unsafe and should be set aside. 2. The prosecution bears the burden of proving beyond reasonable doubt that an offence has been committed. The prosecution has not discharged this burden. There are a number of doubts about the conviction, and therefore, the conviction should be set aside. 3. The weight of evidence indicates that no offence was committed. The appellant gave evidence that there was consensual sex on the bed. Both of the children have stated that they saw the appellant and the complainant on the bed and not on the floor. The expert evidence indicates that there was no DNA on the floor. The expert evidence indicates that the appellant was not bitten. 4. The Judge indicated on a number of occasions that there were doubts about the evidence. 5. The Judge should have directed the jury to return a verdict of not guilty. The judgment was unsafe, and the judge should have made judgement of acquittal or a judgment notwithstanding a verdict. 6. The Court did not properly test the competence of the children. 7. The marks on the complainant's body were not caused by the appellant. 8. No DNA was found P89 L25. 9. The complainants [sic] evidence is false because they had sex on the bed and not on the carpet. P89 L40. Nothing was found on the floor. P90 L20. 10. This is a far better point for the accused. P89 L30.

14 Curiously, the order sought on behalf of the appellant was:

That the matter be remitted to the ACT Magistrates Court to be decided according to law.

15 I can make no sense of the reference to the ACT Magistrates Court.

Risk of miscarriage of justice

16 Having regard to Mr Ford's advice as noted at [8] above, I invited him to make his submissions about the grounds of appeal with a view to identifying the basis on which I could be satisfied that a refusal of leave to appeal the conviction might cause a miscarriage of justice. Before addressing those submissions in detail, however, it is necessary to set out a general overview of the allegations against the appellant, and the progress of the trial.

Background

17 The complainant and her husband SV, the appellant, lived in Garran with their two children. The children were aged 8 years and 2 years (more specifically, 26 months) respectively at the time of the offences, and 9 years and 3 years at the time of the trial. The parents had separate bedrooms; the complainant shared her bedroom with the younger child and the appellant shared his bedroom with the older child.

The complainant's allegations

18 The complainant said that on the night of 25 January 2015, when she refused a request for sex made by the appellant, he slapped her (the assault), fondled her breasts (the act of indecency)...