Angus (a pseudonym) v The King

Case [2024] SASCA 101

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ANGUS (A PSEUDONYM) v THE KING

[2024] SASCA 101

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

15 August 2024

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

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

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

The appellant was charged with two counts of aggravated indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). After a trial by judge alone, the appellant was found guilty of both counts.

The appellant is the great-uncle of the complainant. The offending occurred on 21 April 2018, following the wedding of the appellant’s daughter. The complainant was eight years of age.

Following an initial complaint to a school friend, AKR, the complainant disclosed the offending to her school counsellor who notified her parents, and a report was made to the police. The complainant conducted two prescribed interviews with police and gave evidence in court.

The complainant said that at the end of the wedding celebrations, and after most guests had left, the appellant approached her and said that he wanted to “show [her] a trick”. He got down on his knees in front of the complainant. He lifted her shirt and “used his mouth on [her] nipple area” (count 1) and touched her on top of her pants on her vagina (count 2). The complainant said that after this, she tried to get away by telling the appellant that she needed to go to the bathroom. He initially stopped her but then let her go and said, “don’t tell anybody” and “it’s okay”.

On amended grounds of appeal, the appellant raises six grounds identifying various errors of law and fact including that the trial Judge reversed the onus of proof; gave an inadequate significant forensic disadvantage direction; made various factual findings not open on the evidence; erred in her use of the evidence of initial complaint and distress; and that the verdict was unreasonable or could not be supported having regard to the evidence.

Held, by the Court, granting permission to appeal on grounds 3, 4, 5 and 6, but dismissing the appeal on all grounds:

1.      The trial Judge did not erroneously reverse the onus…

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Angus (a pseudonym) v The King [2024] SASCA 101
Case
[2024] SASCA 101
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for indecent assault. The appellant, Angus (a pseudonym), was found guilty by a trial judge. He appealed his conviction to the Full Court of the Supreme Court of South Australia, arguing that the trial judge made several factual findings that were not supported by the evidence and that she provided inadequate reasons for those findings.

The central legal issues before the Full Court were whether the trial judge's factual findings were reasonably open on the evidence presented, and whether her Honour adequately explained how she accounted for a significant forensic disadvantage suffered by the appellant when assessing the prosecution's case. The appellant contended that the impugned findings were not based on witness impressions but on inferences drawn from uncontested evidence, thus affording the appellate court no lesser advantage in reviewing them.

The Full Court considered the appellant's challenge to three specific factual findings. One finding concerned the location of the alleged offending, with the trial judge finding it to be away from other guests. The appellant argued this was contrary to evidence that the area was adjacent to a garage where other men were drinking, that the area was within view from the garage, and that there was constant foot traffic through the alfresco area. The Court found that the trial judge adequately addressed the forensic disadvantage and that the factual findings were open on the evidence.

Permission to appeal was granted on several grounds, but ultimately, the Full Court dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In the circumstances of this case, we are satisfied that the trial Judge did not give inadequate reasons as to the significant forensic disadvantage suffered by the appellant, and her Honour adequately addressed the way in which she brought that forensic disadvantage to account in assessing whether the prosecution had proved the charged offences beyond reasonable doubt.Ground 3 – factual findings not open on the evidence The appellant challenged three factual findings made by the trial Judge in reasoning to guilt. The appellant contended that the findings were not reasonably open on the evidence; and her Honour provided inadequate reasons for making those findings. The impugned factual findings concerned matters which countered the appellant’s submissions at trial as to the implausibility of the alleged offending. The appellant contended that each of the findings was ‘glaringly improbable’ and contrary to other uncontested evidence. In Fox v Percy Gleeson CJ, Gummow and Kirby JJ said:[9] There are cases where findings are glaringly improbable or contrary to other evidence or inferences. These cases are set apart from findings based largely on impressions of witnesses and this court is not restrained from reviewing and intervening if certain findings should not have been made.[9] (2003) 214 CLR 118 at [29] per Gleeson CJ, Gummow and Kirby JJ (Callinan J contra). In the present case, the appellant submitted that the impugned findings were not based on the trial Judge’s impressions of witnesses but rather inferences drawn from uncontested evidence. Consequently, the appellant submitted that her Honour had no identifiable advantage over this Court in considering whether the factual findings were open on the evidence. Turning now to consider the three impugned factual findings and the evidence relevant to those findings. First, the trial Judge in her reasons said:[10]Although there were other people in the vicinity, the area in which the events were said to have occurred was away from other guests. Most of the guests had left the wedding by this time. I accept that the toilet window had a net curtain, and if a person had been standing in the toilet and looking out of the window at the time they may have been able to see any interaction between the accused and complainant.[10] Reasons for Verdict at [155]. The appellant challenged the trial Judge’s finding that “the area in which the events were said to have occurred was away from other guests”. The complainant gave evidence that the offending occurred in the alfresco area alongside the wall perpendicular to the gas heater. She agreed that this wall had a toilet window. As outlined above, there was also evidence that the “alfresco area” was adjacent to the garage area, and there were other men drinking at a table in the garage area towards the end of the evening. Moreover, the appellant relied on evidence that when seated at the garage table, the alfresco area was within view as shown by the tendered photographs, and there was “constant foot traffic” through the alfresco area into, and from the house.

Decision

Reasons for decision

We dismiss this ground of appeal. Conclusion We grant permission to appeal on grounds 3, 4, 5 and 6, but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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