B, VN v Police - [2011] SASC 151

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
B, VN v POLICE
[2011] SASC 151
Judgment of The Honourable Justice Gray
27 September 2011
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - ACCEPTANCE
Appeal against conviction - defendant charged with three counts of indecently assaulting a child under the age of 14 years alleged to have occurred against three separate complainants between 1958 and 1966 - where complainants sisters - whether the Magistrate had failed to direct or properly direct himself on the operation of section 34CB of the Evidence Act 1929 (SA), adequacy of directions relating to delay where a defendant is forensically disadvantaged - whether the Magistrate in error in finding that a statement of the defendant to a psychiatrist that the defendant "pleaded guilty at the first case", amounted to an admission of guilt.
Held: appeal allowed - a number of matters raised a significant forensic disadvantage to the defendant, however, not shown that the Magistrate failed to have regard to these matters - Court record demonstrates that there was no admission of guilt when the matter was first before the Court - Magistrate proceeded under a misapprehension of fact in reaching his conclusions as to guilt - order that convictions be set aside - direction that the matter be remitted for retrial.
Magistrates Court Act 1991 (SA) s 42; Evidence Act 1929 (SA) s 34CB, referred to.
R v Cassebohm (2011) 109 SASR 465, considered.

B, VN v POLICE
[2011] SASC 151
Magistrates Appeal
GRAY J:

This an appeal against conviction.[1]
[1] Pursuant to section 42 of the Magistrates Court Act 1991 (SA).
Introduction
VB, the defendant and appellant, was charged with three counts of indecently assaulting a child under the age of 14 years alleged to have occurred between 1958 and 1966. Each count related to a different complainant, all of whom were sisters.[2] It was the prosecution case that the defendant had committed each of the offences in a room at the rear of a shop which he ran in rural South Australia. On each occasion, it was said, the victim had been sent on her own to run an errand and collect an item from the defendant’s shop. The defendant was 90 years of age at the time of trial.
[2] Count 1
[The defendant] between the 1^st day of January 1958, and the 31^st day of December 1958 at [a rural town in South Australia] indecently assaulted DLP a child under the age of fourteen years.
Count 2
[The defendant] between the 1^st day of January 1961, and the 31^st day of December 1962 at [a rural town in South Australia] indecently assaulted VR a child under the age of fourteen years.
Count 3
[The defendant] between the 1^st day of January 1964, and the 31^st day…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading B, VN v Police

Details

AGLC: B, VN v Police [2011] SASC 151
Case: [2011] SASC 151
Decision Date: 27 September 2011

CaseChat Overview and Summary

The appeal in B, VN v Police concerned the conviction of the appellant, charged with three counts of indecently assaulting a child under the age of 14 years, with the alleged offences occurring between 1958 and 1966 against three separate complainants who were sisters. The crux of the case revolved around the adequacy of the magistrate's handling of the evidence, particularly in light of the substantial delay between the alleged incidents and the reporting of the offences, and whether the magistrate correctly assessed the credibility of the evidence and the impact of the delay.

The central legal issues were whether the magistrate erred in not properly directing himself on the operation of section 34CB of the Evidence Act 1929 (SA) and whether the magistrate's assessment of the delay in reporting and its impact on the credibility of the evidence was adequate. Additionally, it was contested whether the magistrate was mistaken in considering a statement by the defendant to a psychiatrist as an admission of guilt. The court was required to determine whether these issues led to a miscarriage of justice, affecting the fairness of the trial and the reliability of the conviction.

The court found that while there were several factors that presented a significant forensic disadvantage to the defendant, it was not conclusively shown that the magistrate failed to consider these issues. However, the magistrate did proceed under a misapprehension of fact in concluding that the defendant had admitted guilt when the matter was first before the court. The court concluded that the magistrate's error in this regard was material and led to an unsafe and unfair conviction. Consequently, the appeal was allowed, the convictions were set aside, and the matter was remitted for retrial.

The final orders of the court were that the convictions be set aside and that the matter be remitted for retrial, ensuring that the magistrate correctly directs himself on the issues of delay and its impact on the credibility of the evidence, and that there is no misapprehension of fact regarding the defendant's admissions.

Orders