Court of Appeal
Sondhi v King [2024] SASCA 7 (8 February 2024) – South Australian Court of Appeal
‘Appeal’ – ‘Physical and harm’ – ‘Sexual and reproductive abuse’ – ‘Rape’ – ‘Credibility’ – ‘Reliability’ – ‘Evidence’
Charge: Rape x 5.
Proceedings: Appeal against conviction.
Facts: Following a trial by judge alone, the male applicant was found guilty of five counts of rape perpetrated against the female complainant, his wife. Each count occurred between January and March 2021, shortly after the birth of their only child. [2]–[6] At trial, the applicant denied the charges, submitting that the initial complaint was fabricated. [7]
Grounds of appeal: The applicant appealed the conviction on five grounds with significant overlap. Overarchingly, the grounds concerned:
1.
Failure to give adequate reasons and/or adopt adequate reasoning to explain why the conflicting evidence raised by the applicant did not engender reasonable doubt;
2.
Erroneous consideration of the complainant’s credibility and reliability due to a failure to properly evaluate inconsistencies in her testimony and behaviour;
3.
Erroneous approach to the evaluation of the evidence of the initial complaint raised by the complainant and her brother (a witness);
4.
Erroneous application of the burden and standard of proof; and
5.
Failure to consider the complainant’s reliability, as distinct from considerations of credibility [4]
Decision and Reasoning: The Court (Doyle, Blue and Kimber JJ) granted the applicant permission to appeal but dismissed the appeal.
The Court held that the inconsistencies in the complainant’s evidence — concerning the time of day on which the complaint was made (eg, afternoon or evening) — was ‘hardly … significant’ to affect the credibility of the complainant. This finding extended to the inconsistencies between the evidence of the complainant and her brother, concerning the date on which the complaint was made. [40]–[46]
It was observed that the trial judge was ‘cognisant of the need to consider the whole of the evidence’ before finding any count proven beyond a reasonable doubt. [77] This included findings of the complainant’s credibility and reliability, the latter of which had limited relevance to the issues in the trial. [78]; [129]
Further, the Court held that the trial judge’s provision of directions to himself, concerning the principle of innocence and the prosecution’s burden, did not constitute preferential reasoning or a misapplication of the onus of proof. [109]–[111]
TM v King [2024] SASCA 5 (8 February 2024) – South Australian Court of Appeal
‘Appeal against conviction’ – ‘Rape’ – ‘Physical and sexual abuse’ – ‘Evidence’ – ‘Adequate Reasoning’
Charge: Rape x 6.
Proceedings: Appeal against conviction.
Facts: Following a trial by judge alone, the male applicant was found guilty of six counts of rape perpetrated against the female complainant, his partner. Each count occurred over thirteen years. [1]–[2] According to the complainant, the relationship started off ‘good’ in 2004. However, the applicant became aggressive and sexually violent. The complainant alleged that the accused had raped her on multiple occasions, including while pregnant. The applicant’s aggressive behaviour fluctuated throughout the marriage, and the birth of their first and second children. By 2019, the complainant told the applicant to leave the home. [9]
Grounds of appeal: The applicant appealed the conviction on four grounds:
1.
Erroneous approach to the evaluation of the evidence of the initial complaint;
2.
Erroneous assessment of the credibility and reliability of the complaint;
3.
Engagement in adequate reasoning; and
4.
Inadequate reasons.
5.
Failure to consider the complainant’s reliability, as distinct from considerations of credibility [4]
Decision and Reasoning: The Court (Doyle, Bleby and Kimber JJ) granted the applicant permission to appeal but dismissed the appeal.
With respect to ground one, the Court specified that section 34M of the Evidence Act — governing evidence relating to complaint in sexual cases — does ‘not condition the admissibility and use of evidence’ of initial complaints upon the existence of ‘independent support’. [40] Even if it did, the evidence of AT (a witness) provided independent support to the fact that the complainant made the initial complaint. [41]
The Court further clarified R v Landmeter (2015) 121 SASR 522 as not establishing the principle that ‘the absence of support for the making of a complaint means that evidence always has limited weight’. [49] This is a matter dependent on the evidence given in the trial, and it was open to the trial Judge to prefer the evidence of the complainant as to the terms of the initial complaint. [49]
With respect to ground three and four, the Court held that the approach of the trial judge was ‘open’ to him, and subsequently not inadequate. The reasons of the trial judge rationally supported the facts found the final verdicts. [87]; [129]; [136]
Groom v Attorney General [2023] SASCA 5 (1 August 2023) – South Australian Court of Appeal
‘Appeal’ – ‘Protection order’ – ‘Abuse of Process’ – ‘Vexatious Litigant’ – ‘Systems Abuse’
Proceedings: Appeal against order prohibiting institution of proceedings in relation to protection order.
Facts: In 2011, the male appellant was subject to a protection order, which he ‘sedulously’ sought to overturn in at least eight proceedings; all of which were instituted without reasonable grounds. In 2021, following a referral from the Court of Appeal in Groom v Police [2021] SASCA 1, the Attorney-General commenced proceedings seeking to declare the appellant a vexatious litigant. [1]-[2]
After hearing the application in 2023, Justice Blue of the Supreme Court (see Attorney General v Groom [2023] SASC 18) ordered the appellant to be prohibited, without prior leave of the Court, from instituting proceedings in relation to the protection order.
Grounds of appeal: The appellants advanced the appeal on several grounds concerning procedural failures and inadequate reasoning. [12]
Decision and Reasoning: The Court dismissed the appeal, finding no error in Blue J’s reasoning, nor merit in any of the appellant’s grounds of appeal.
Blue J gave clear and cogent reasons for all of his findings. Mr Groom was either unwilling, or more likely unable, to point to any error in Blue J’s findings other than asserting that he was “wrong”. [17]
South Australia Police v Hill [2022] SASCA 22 (22 March 2022) – South Australian Court of Appeal
‘Double jeopardy’ – ‘Impermissible double charging’ – ‘Subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA)’
Charges: assault aggravated (formerly) in a relationship with the victim x 2, and contravening a term of an intervention order for her protection in a manner involving physical violence or the threat of physical violence x2.
Proceedings: Police appeal against order of Magistrate allowing the withdrawal of pleas of guilt to and dismissal of two counts in ruling each pair of charges involved impermissible double charging.
Facts: The respondent was charged by Police with assault of the complainant aggravated because he was (formerly) in a relationship with her, and contravening a term of an intervention order for her protection in a manner involving physical violence or the threat of physical violence, committed on 16 December 2019. The respondent was later charged by Police with assault of the complainant aggravated because he was (formerly) in a relationship with her and/or used an offensive weapon, and contravening a term of an intervention order for her protection, committed on 29 March 2020. The respondent pleaded guilty to each of these four counts (together with other counts). The Magistrate ruled that each pair of counts involved impermissible double charging. The Magistrate granted permission to the respondent to withdraw his guilty pleas to two of the counts and dismissed them. The Magistrate imposed a single penalty in respect of the remaining counts.
Issue: Firstly, does subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA) create a single offence or multiple offences? Secondly, does a conviction for an offence of contravening a condition of an intervention order, where the contravening conduct comprises a substantive offence, preclude a conviction for the substantive offence when the substantive offence is aggravated by another circumstance and vice versa?
Decision and Reasoning: Appeal allowed.
Held by the Court:
1.
(Per Lovell, Doyle and Livesey JJA and Blue AJA) Subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA) creates a single offence albeit with differential maximum penalties depending on the existence of circumstances of aggravation (at [143] per Lovell and Livesey JJA and Blue AJA (Doyle JA agreeing)).
(Per Kourakis CJ) It is not necessary to decide whether subsection 20(3) creates one or two offences depending on the existence of circumstances of aggravation (at [19] per Kourakis CJ).
2.
(Per Lovell, Doyle and Livesey JJA and Blue AJA) A conviction for contravening an intervention order condition, where the contravening conduct comprises a substantive offence, does not preclude a conviction for the substantive offence or vice versa (at [172] per Lovell and Livesey JJA and Blue AJA; at [178] per Doyle JA).
(Per Kourakis CJ) A conviction for contravening an intervention order condition, where the contravening conduct comprises a substantive offence aggravated by another circumstance, does not preclude a conviction for the substantive offence or vice versa (at [19] per Kourakis CJ).
3.
(Per Kourakis CJ, Lovell, Doyle and Livesey JJA and Blue AJA) The appeal should be allowed and, subject to hearing the parties, a conviction recorded on the two counts dismissed by the Magistrate with no alteration to the sentence imposed by the Magistrate under section 26 of the Sentencing Act 2017 (at [174] per Lovell and Livesey JJA and Blue AJA (Kourakis CJ and Doyle JA agreeing)).
Groom v Police [2020] SASCA 1 (22 January 2021) – South Australian Court of Appeal
‘Abuse of process’ – ‘Application for permission to appeal’ – ‘Protection order’ – ‘Systems abuse’
Proceedings: Application for permission to appeal the dismissal of an application for revocation of an intervention order.
Facts: This matter had an extensive history (set out at [7]). The intervention order was originally made on 19 October 2011, and confirmed by consent on 22 February 2012. The applicant’s appeal against confirmation of the interim intervention was upheld on 25 June 2013: Groom v Police (No 3). On 10 December 2013, the application to confirm the intervention order was again confirmed by consent in the Magistrates Court. The applicant’s appeal was dismissed by a single judge on 21 March 2014 and an application for permission to appeal to the Full Court refused on 19 November 2014: Groom v Police. In December 2014, the applicant was convicted of contravening a term of the intervention order and an appeal was dismissed in July 2015: Groom v Police. In 2016, the applicant filed an application to revoke the intervention order, which was dismissed by the Magistrate. Various appeals were dismissed by a single judge and the Full Court in 2017. Notwithstanding the Full Court’s judgment, the applicant again applied to a Magistrate to revoke the order made on 19 October 2011 and confirmed on 10 December 2013. The Magistrate dismissed the application on 26 May 2020 and this was affirmed on appeal by Lovell J.
Grounds of appeal: The Magistrate and Lovell J erred in failing to find that there was new and compelling evidence to demonstrate that the order was invalid and should be revoked.
Held: The Court not only dismissed the application for permission to appeal but also held at [10]-[11] that:
“In our view, the latest material filed in support of the application for permission to appeal demonstrates that the applicant continues to attempt to relitigate matters previously ventilated and considered in the Magistrates Court, by the various Judges of this Court and by the Full Court.
We consider the current application for permission to appeal, in the circumstances, to be an abuse of process.”
The Court referred the matter to the Attorney-General to consider whether there were proper grounds for an application to be made under s 39 of the Supreme Court Act 1935 (SA) to stay any further proceedings sought to be instituted by the applicant (at [12]-[13]).
Court of Appeal
Sondhi v King [2024] SASCA 7 (8 February 2024) – South Australian Court of Appeal
‘Appeal’ – ‘Physical and harm’ – ‘Sexual and reproductive abuse’ – ‘Rape’ – ‘Credibility’ – ‘Reliability’ – ‘Evidence’
Charge: Rape x 5.
Proceedings: Appeal against conviction.
Facts: Following a trial by judge alone, the male applicant was found guilty of five counts of rape perpetrated against the female complainant, his wife. Each count occurred between January and March 2021, shortly after the birth of their only child. [2]–[6] At trial, the applicant denied the charges, submitting that the initial complaint was fabricated. [7]
Grounds of appeal: The applicant appealed the conviction on five grounds with significant overlap. Overarchingly, the grounds concerned:
1.
Failure to give adequate reasons and/or adopt adequate reasoning to explain why the conflicting evidence raised by the applicant did not engender reasonable doubt;
2.
Erroneous consideration of the complainant’s credibility and reliability due to a failure to properly evaluate inconsistencies in her testimony and behaviour;
3.
Erroneous approach to the evaluation of the evidence of the initial complaint raised by the complainant and her brother (a witness);
4.
Erroneous application of the burden and standard of proof; and
5.
Failure to consider the complainant’s reliability, as distinct from considerations of credibility [4]
Decision and Reasoning: The Court (Doyle, Blue and Kimber JJ) granted the applicant permission to appeal but dismissed the appeal.
The Court held that the inconsistencies in the complainant’s evidence — concerning the time of day on which the complaint was made (eg, afternoon or evening) — was ‘hardly … significant’ to affect the credibility of the complainant. This finding extended to the inconsistencies between the evidence of the complainant and her brother, concerning the date on which the complaint was made. [40]–[46]
It was observed that the trial judge was ‘cognisant of the need to consider the whole of the evidence’ before finding any count proven beyond a reasonable doubt. [77] This included findings of the complainant’s credibility and reliability, the latter of which had limited relevance to the issues in the trial. [78]; [129]
Further, the Court held that the trial judge’s provision of directions to himself, concerning the principle of innocence and the prosecution’s burden, did not constitute preferential reasoning or a misapplication of the onus of proof. [109]–[111]
TM v King [2024] SASCA 5 (8 February 2024) – South Australian Court of Appeal
‘Appeal against conviction’ – ‘Rape’ – ‘Physical and sexual abuse’ – ‘Evidence’ – ‘Adequate Reasoning’
Charge: Rape x 6.
Proceedings: Appeal against conviction.
Facts: Following a trial by judge alone, the male applicant was found guilty of six counts of rape perpetrated against the female complainant, his partner. Each count occurred over thirteen years. [1]–[2] According to the complainant, the relationship started off ‘good’ in 2004. However, the applicant became aggressive and sexually violent. The complainant alleged that the accused had raped her on multiple occasions, including while pregnant. The applicant’s aggressive behaviour fluctuated throughout the marriage, and the birth of their first and second children. By 2019, the complainant told the applicant to leave the home. [9]
Grounds of appeal: The applicant appealed the conviction on four grounds:
1.
Erroneous approach to the evaluation of the evidence of the initial complaint;
2.
Erroneous assessment of the credibility and reliability of the complaint;
3.
Engagement in adequate reasoning; and
4.
Inadequate reasons.
5.
Failure to consider the complainant’s reliability, as distinct from considerations of credibility [4]
Decision and Reasoning: The Court (Doyle, Bleby and Kimber JJ) granted the applicant permission to appeal but dismissed the appeal.
With respect to ground one, the Court specified that section 34M of the Evidence Act — governing evidence relating to complaint in sexual cases — does ‘not condition the admissibility and use of evidence’ of initial complaints upon the existence of ‘independent support’. [40] Even if it did, the evidence of AT (a witness) provided independent support to the fact that the complainant made the initial complaint. [41]
The Court further clarified R v Landmeter (2015) 121 SASR 522 as not establishing the principle that ‘the absence of support for the making of a complaint means that evidence always has limited weight’. [49] This is a matter dependent on the evidence given in the trial, and it was open to the trial Judge to prefer the evidence of the complainant as to the terms of the initial complaint. [49]
With respect to ground three and four, the Court held that the approach of the trial judge was ‘open’ to him, and subsequently not inadequate. The reasons of the trial judge rationally supported the facts found the final verdicts. [87]; [129]; [136]
Groom v Attorney General [2023] SASCA 5 (1 August 2023) – South Australian Court of Appeal
‘Appeal’ – ‘Protection order’ – ‘Abuse of Process’ – ‘Vexatious Litigant’ – ‘Systems Abuse’
Proceedings: Appeal against order prohibiting institution of proceedings in relation to protection order.
Facts: In 2011, the male appellant was subject to a protection order, which he ‘sedulously’ sought to overturn in at least eight proceedings; all of which were instituted without reasonable grounds. In 2021, following a referral from the Court of Appeal in Groom v Police [2021] SASCA 1, the Attorney-General commenced proceedings seeking to declare the appellant a vexatious litigant. [1]-[2]
After hearing the application in 2023, Justice Blue of the Supreme Court (see Attorney General v Groom [2023] SASC 18) ordered the appellant to be prohibited, without prior leave of the Court, from instituting proceedings in relation to the protection order.
Grounds of appeal: The appellants advanced the appeal on several grounds concerning procedural failures and inadequate reasoning. [12]
Decision and Reasoning: The Court dismissed the appeal, finding no error in Blue J’s reasoning, nor merit in any of the appellant’s grounds of appeal.
Blue J gave clear and cogent reasons for all of his findings. Mr Groom was either unwilling, or more likely unable, to point to any error in Blue J’s findings other than asserting that he was “wrong”. [17]
South Australia Police v Hill [2022] SASCA 22 (22 March 2022) – South Australian Court of Appeal
‘Double jeopardy’ – ‘Impermissible double charging’ – ‘Subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA)’
Charges: assault aggravated (formerly) in a relationship with the victim x 2, and contravening a term of an intervention order for her protection in a manner involving physical violence or the threat of physical violence x2.
Proceedings: Police appeal against order of Magistrate allowing the withdrawal of pleas of guilt to and dismissal of two counts in ruling each pair of charges involved impermissible double charging.
Facts: The respondent was charged by Police with assault of the complainant aggravated because he was (formerly) in a relationship with her, and contravening a term of an intervention order for her protection in a manner involving physical violence or the threat of physical violence, committed on 16 December 2019. The respondent was later charged by Police with assault of the complainant aggravated because he was (formerly) in a relationship with her and/or used an offensive weapon, and contravening a term of an intervention order for her protection, committed on 29 March 2020. The respondent pleaded guilty to each of these four counts (together with other counts). The Magistrate ruled that each pair of counts involved impermissible double charging. The Magistrate granted permission to the respondent to withdraw his guilty pleas to two of the counts and dismissed them. The Magistrate imposed a single penalty in respect of the remaining counts.
Issue: Firstly, does subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA) create a single offence or multiple offences? Secondly, does a conviction for an offence of contravening a condition of an intervention order, where the contravening conduct comprises a substantive offence, preclude a conviction for the substantive offence when the substantive offence is aggravated by another circumstance and vice versa?
Decision and Reasoning: Appeal allowed.
Held by the Court:
1.
(Per Lovell, Doyle and Livesey JJA and Blue AJA) Subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA) creates a single offence albeit with differential maximum penalties depending on the existence of circumstances of aggravation (at [143] per Lovell and Livesey JJA and Blue AJA (Doyle JA agreeing)).
(Per Kourakis CJ) It is not necessary to decide whether subsection 20(3) creates one or two offences depending on the existence of circumstances of aggravation (at [19] per Kourakis CJ).
2.
(Per Lovell, Doyle and Livesey JJA and Blue AJA) A conviction for contravening an intervention order condition, where the contravening conduct comprises a substantive offence, does not preclude a conviction for the substantive offence or vice versa (at [172] per Lovell and Livesey JJA and Blue AJA; at [178] per Doyle JA).
(Per Kourakis CJ) A conviction for contravening an intervention order condition, where the contravening conduct comprises a substantive offence aggravated by another circumstance, does not preclude a conviction for the substantive offence or vice versa (at [19] per Kourakis CJ).
3.
(Per Kourakis CJ, Lovell, Doyle and Livesey JJA and Blue AJA) The appeal should be allowed and, subject to hearing the parties, a conviction recorded on the two counts dismissed by the Magistrate with no alteration to the sentence imposed by the Magistrate under section 26 of the Sentencing Act 2017 (at [174] per Lovell and Livesey JJA and Blue AJA (Kourakis CJ and Doyle JA agreeing)).
Groom v Police [2020] SASCA 1 (22 January 2021) – South Australian Court of Appeal
‘Abuse of process’ – ‘Application for permission to appeal’ – ‘Protection order’ – ‘Systems abuse’
Proceedings: Application for permission to appeal the dismissal of an application for revocation of an intervention order.
Facts: This matter had an extensive history (set out at [7]). The intervention order was originally made on 19 October 2011, and confirmed by consent on 22 February 2012. The applicant’s appeal against confirmation of the interim intervention was upheld on 25 June 2013: Groom v Police (No 3). On 10 December 2013, the application to confirm the intervention order was again confirmed by consent in the Magistrates Court. The applicant’s appeal was dismissed by a single judge on 21 March 2014 and an application for permission to appeal to the Full Court refused on 19 November 2014: Groom v Police. In December 2014, the applicant was convicted of contravening a term of the intervention order and an appeal was dismissed in July 2015: Groom v Police. In 2016, the applicant filed an application to revoke the intervention order, which was dismissed by the Magistrate. Various appeals were dismissed by a single judge and the Full Court in 2017. Notwithstanding the Full Court’s judgment, the applicant again applied to a Magistrate to revoke the order made on 19 October 2011 and confirmed on 10 December 2013. The Magistrate dismissed the application on 26 May 2020 and this was affirmed on appeal by Lovell J.
Grounds of appeal: The Magistrate and Lovell J erred in failing to find that there was new and compelling evidence to demonstrate that the order was invalid and should be revoked.
Held: The Court not only dismissed the application for permission to appeal but also held at [10]-[11] that:
“In our view, the latest material filed in support of the application for permission to appeal demonstrates that the applicant continues to attempt to relitigate matters previously ventilated and considered in the Magistrates Court, by the various Judges of this Court and by the Full Court.
We consider the current application for permission to appeal, in the circumstances, to be an abuse of process.”
The Court referred the matter to the Attorney-General to consider whether there were proper grounds for an application to be made under s 39 of the Supreme Court Act 1935 (SA) to stay any further proceedings sought to be instituted by the applicant (at [12]-[13]).