Citation: GROUNDSTROEM, Christoffer Andreas v R [2013] NSWCCA 237
Court: NSW Court of Criminal Appeal
Date: 31 October 2013
Judge(s): Macfarlan JA, Adams J, Button J
Background
The appellant was the former husband of the complainant. He was charged with four counts of aggravated sexual assault said to have occurred between 1992 and 2003, during the course of the marriage. The alleged assaults involved both vaginal and anal intercourse without the complainant's consent, with the circumstances of aggravation being that the appellant inflicted actual bodily harm during each assault. The complainant did not report the offending contemporaneously, partly because she was isolated, had limited English, and for a period believed (incorrectly) that non-consensual sex within marriage could not constitute rape.
At trial in the District Court, the appellant was acquitted of the aggravated charges but convicted on all four counts of the statutory alternative, sexual assault. He was sentenced to a total term of seven years and six months imprisonment with a non-parole period of five years. He appealed to the Court of Criminal Appeal on a single ground.
The sole ground of appeal was that the trial judge erred by failing to direct the jury on the significant forensic disadvantage the appellant suffered as a result of the delay between the offending and the complaint being made to police.
Legal Issues
- Whether the trial judge was required, under s 165B of the Evidence Act 1995, to give the jury a direction about significant forensic disadvantage arising from delay in complaint.
- Whether the particular matters raised by defence counsel at trial were sufficient to trigger an obligation on the judge to give such a direction.
- Whether additional grounds of forensic disadvantage, raised for the first time on appeal, warranted the grant of leave under r 4 of the Criminal Appeal Rules.
Decision
Adams J (with whom Macfarlan JA and Button J agreed) examined the three bases of alleged forensic disadvantage that had been raised by defence counsel at trial. These were: the absence of medical records from a visit the complainant made to a medical centre; the absence of hospital records relating to a later period; and the likelihood that an immediate complaint would have produced police evidence of the complainant's bruising.
The Court found that defence counsel's application at trial was inadequate in critical respects. Counsel had not established that the medical centre records actually existed or were unavailable. Without that evidentiary foundation, the submission was speculative and could not succeed. As Adams J observed, where the alleged disadvantage is the loss or unavailability of evidence, it is ordinarily necessary to demonstrate that this is in fact so, rather than leaving it to supposition.
On the bruising point, the Court found the argument was substantially undermined by admissions the appellant himself had made to his treating psychiatrist, Dr Cassimatis, in 2001 and 2003. In those consultations, the appellant had acknowledged that he had forced himself on his wife and bruised her. Any police evidence of bruising from an early complaint would therefore have been consistent with, rather than exculpatory of, the complainant's account. The Court concluded that only the medical centre records point, and possibly the absence of hospital records, might have warranted a direction had it been properly pressed at trial. Because it was not, no obligation to direct arose.
As to the additional grounds of forensic disadvantage raised for the first time on appeal, the Court noted these required leave under r 4 of the Criminal Appeal Rules. Although Adams J considered some of those matters might otherwise have been of sufficient weight to require a direction, leave was refused because they had not been raised below and could not therefore have been the subject of directions at trial.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A conviction will not be set aside on the basis that a forensic disadvantage direction was omitted where defence counsel failed to raise the alleged disadvantage with sufficient particularity at trial, including by establishing an evidentiary foundation for the claim.
- Under s 165B of the Evidence Act 1995, the obligation to give a forensic disadvantage direction is conditioned on the defence identifying, with appropriate detail, the specific disadvantage said to arise from delay. Generalised or speculative submissions will not suffice.
- Where the proposed forensic disadvantage consists of the loss or unavailability of particular records or evidence, the defence bears the practical burden of demonstrating that the relevant material actually existed and is no longer obtainable, rather than relying on supposition.
- Admissions made by an accused to a third party, such as a treating psychiatrist, can substantially undermine an argument that unavailable contemporaneous evidence would have assisted the defence. In this case, the appellant's own admissions largely negated the forensic value he sought to derive from the absence of early police records.
- In dismissing the appeal, the Court of Criminal Appeal refused leave to raise new grounds of forensic disadvantage for the first time on appeal. Because those matters had not been raised below, there was no occasion for directions to have been given, and no basis for intervention.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 165B
- Criminal Appeal Rules (NSW), r 4
Cases:
- R v WSP [2005] NSWCCA 427
- Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521