R v SDT

The primary issue in this case was whether the failure to lead “new” medical evidence at trial, despite requests of the appellant, resulted in a miscarriage of justice entitling the appellant to a retrial. The appellant was convicted after trial of seven offences against his daughter, including assaults, grievous bodily harm, and torture. Before trial, evidence of medical treatment of his daughter was obtained via subpoena, but was not provided by the appellant’s solicitors to his counsel. The appellant then appealed on a number of grounds, including that the failure to lead that evidence resulted in a miscarriage of justice. The other grounds of appeal are not included in this note. The Court of Appeal allowed the appeal and ordered a retrial on the torture count (Boddice J dissenting, ordering retrials also on counts 2-3 and 6-9). The Court of Appeal found that the Court retains a residual discretion to order a retrial where “new”, rather than “fresh”, evidence created a significant possibility the jury, acting reasonably, would have acquitted the appellant if aware of that evidence.

Morrison and McMurdo JJA and Boddice J

30 August 2022

Background

The appellant was convicted of seven offences against his daughter when she was between 6 and 7 years of age, including assaults, grievous bodily harm and failing to provide a child with adequate care, and torture. [2]. The injuries of the complainant child included a black eye, fractured arm, bruises on her arms and buttocks, and ulceration of skin under cast on arm. [8]–[24].

The appellant appealed those convictions on a number of grounds, including that his legal representatives failed to lead evidence of the medical treatment of the child which he procured during the relevant period. [3]. That ground of appeal is raised only in respect of the count of torture. [72]. The medical reports included evidence of mental health problems the complainant child suffered, including ADHD and autism, relevant to her behavioural issues. [27]–[29]. One report describes the complainant child as being “very violent, aggressive and destructive.” [29]. Those reports also contained notes that the complainant child had a habit of telling lies and fabricating stories. [29]. The appellant suggested the medical evidence was also relevant to show the appellant frequently took the complainant child to the doctors, contrary to the prosecution case that the appellant was “a cruel or neglectful parent”. [28].

The medical evidence had been the subject of a subpoena in the District Court, with that material disclosed to the prosecution and appellant’s former solicitors. [30]. However, the appellant’s trial counsel states he was not given that evidence, which he would have made use of had he seen the documents. [31].

The appellant withdrew his instructions to his counsel and solicitor on the third day of the trial, citing amongst his reasons that they had not followed his instructions for documents and people to be subpoenaed. [33]. Counsel said he thought those references were to other documents and witnesses, not the medical evidence. [34]. The appellant then changed his mind and asked counsel and his solicitors to continue representing him. [35].

Decision of the Court of Appeal

The Court of Appeal allowed the appeal, setting aside the convictions on the torture count, and ordered a retrial in respect of that count. [1], [79].

The Court of Appeal found there was a significant possibility the jury, acting reasonably, would have acquitted the appellant of the count of torture had the new evidence been before it. [1], [73]. The appellant “was not in any way responsible for the evidence not being tendered” and there was no rational explanation for the failure to do so. [1], [73].

Ordinarily there is an important distinction between “fresh” evidence and “new” evidence. [37]. “Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered.” [37]. Meanwhile, “new” evidence is not “fresh” evidence. [37]. Regardless of whether the further evidence is “fresh” or “new”, where it would have had the effect of demonstrating the accused’s innocence, or at least preclude a finding of guilt, this would demonstrate a miscarriage of justice requiring the conviction be substituted with an acquittal. [38]. The distinction between “fresh” and “new” evidence becomes relevant, however, where there is a significant possibility the jury, acting reasonably, would have acquitted had the evidence been available to it. [39].

In this case, the primary question was whether the absence at trial of the “new” evidence could ever occasion a miscarriage of justice which, while not requiring an acquittal, may require a retrial. [40].

In the present case, counsel made a decision not to call evidence of the doctors, as instructed by the appellant, but did so without the benefit of the medical documents which the solicitor held. [63].

Their Honours found the evidence, while not compelling verdicts of acquittal, would have been of sufficient benefit for it to be tendered and there was no “rational explanation” for not doing so. [1], [67]. While counsel expressed some reservations about the jury hearing evidence of the child’s disorders, this evidence may not have added much to the jury’s sympathy for the child’s circumstances, already known to be difficult. [65]. On the other hand, the potential benefit to the appellant of the medical evidence was to demonstrate to the jury that he had engaged with doctors and frequently taken the child complainant for medical treatment as a responsible parent would do. [66]. “The evidence could well have substantially detracted from a view of the appellant as a cruel parent who would intentionally inflict severe pain and suffering upon his daughter.” [66]. A miscarriage of justice occurred due to the failure to tender this evidence as there was a significant possibility the jury, acting reasonably, would have acquitted the appellant of the count of torture had that evidence been before it. [1], [73].

Justice Boddice, while adopting the principles and findings expressed by the majority, held that the convictions on counts 2-3 and 6-9 should also be set aside and a retrial ordered in respect of those counts. [81]–[82]. His Honour considered the medical evidence “undermined confidence” in the outcomes of those counts, even in light of the prosecution’s strong case. [83]–[87].

A Hughes of Counsel