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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- [2024] SASCA 101
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CaseChat Overview and Summary
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.
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Evidence
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