Barry (a pseudonym) v The King - [2024] SASCA 114

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BARRY (A PSEUDONYM) v THE KING
[2024] SASCA 114
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
26 September 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
EVIDENCE - ADMISSIBILITY - CREDIBILITY EVIDENCE - WITNESSES - GENERALLY
EVIDENCE - ADMISSIBILITY - CREDIBILITY EVIDENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
This is a conviction appeal.

Following a trial by judge alone, the appellant was found guilty of the offence of Maintaining an Unlawful Sexual Relationship with a Child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
The complainant is the appellant’s biological daughter. The prosecution case was that the appellant committed sexual acts with, or upon his daughter from July 2015 until January 2016. The appellant would drive the complainant to school. On the way to school, he would park his vehicle on the Esplanade at Brighton and expose his penis to the complainant and cause or incite her to touch his penis. This occurred on numerous occasions. The complainant and her brother would stay with the appellant and his partner every second weekend. The prosecution alleged that the appellant had penile/vaginal sexual intercourse with her at his house on numerous occasions. The last occasion this occurred was on 10 January 2016. The complainant did not see the appellant again after this time.
Following a telephone call between the complainant and the appellant on 26 January 2016, the appellant sent a series of text messages to the complainant which are the subject of this appeal.
The complainant made an initial complaint to her mother in 2019.
At trial, the appellant did not give evidence but adduced evidence from his former domestic partner.

The appellant advances two grounds of appeal. Ground 1 concerns the trial Judge’s use of the text messages. Ground 2 challenges the trial Judge’s use of adverse findings as to the complainant’s reliability. The appellant also complains that the trial Judge’s reasoning diluted the effect of the forensic disadvantage direction.
Held, by the Court, granting permission to appeal on both grounds but dismissing the appeal:
1.As to Ground 1, it was open to the trial Judge to use the evidence of the text messages when assessing defence counsel’s submission that the offending was inherently implausible. The tone and content of the text messages reflected the manipulative nature of the appellant’s relationship with his daughter and were supportive of aspects of the complainant’s account of the alleged sexual…

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 Barry (a pseudonym) v The King

Details

AGLC: Barry (a pseudonym) v The King [2024] SASCA 114
Case: [2024] SASCA 114
Decision Date: 26 September 2024

CaseChat Overview and Summary

The appeal concerned a conviction for offences against the person, specifically maintaining a sexual relationship with a child and persistent sexual abuse of a child. The appellant, identified pseudonymously as Barry, appealed his conviction to the Full Court of the Supreme Court of South Australia. The dispute centred on the reliability of the complainant's evidence, particularly in light of inconsistencies regarding the number of sexual encounters and a delayed disclosure of one specific act.

The legal issues before the Full Court included whether the trial judge erred in admitting and relying upon the complainant's evidence, despite acknowledged inconsistencies and omissions. Specifically, the court had to determine if these discrepancies, when weighed against other evidence, rendered the complainant's testimony unreliable to the point of constituting a miscarriage of justice. The appeal also raised questions about the admissibility and weight of credibility evidence, particularly in the context of sexual abuse allegations involving a child.

The Full Court rejected the ground of appeal concerning the alleged miscarriage of justice. The judges reasoned that while the trial judge correctly identified significant inconsistencies in the complainant's account regarding the frequency of sexual intercourse and the timing of disclosure, these were not determinative. The trial judge, having given himself a direction to scrutinise the complainant's evidence with great care, found her presentation to be highly convincing. Crucially, the court found that text messages between the appellant and the complainant, which were admitted as evidence, provided significant support for the complainant's account of the relationship being characterised by manipulation. These messages demonstrated a pattern of behaviour by the appellant that was consistent with the complainant's description of his manipulative tactics, thereby bolstering the plausibility and reliability of her testimony regarding the offending. The court concluded that these messages rebutted any suggestion that the complainant's account was implausible, given the nature of the relationship and the appellant's position as an adult.

Permission to appeal was granted, but the appeal itself was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As to the inconsistencies in the complainant’s account as to the number of times the appellant had penile/vaginal sexual intercourse with her at his home, the trial Judge found that the inconsistencies were ‘not insignificant’ and there were aspects of her account ‘which are not reliable’. His Honour said: In her evidence [the complainant] stated she ‘would estimate between 10 and 15’ as the number of times she was raped in the house. I accept that on 18 May 2019 she told Weston it happened four times in three months, in the statement dated 9 October 2019 she said it happened six to eight times between September and January and in proofing on 22 July 2022 she said ‘it happened more like 10 times’.[The complainant] explained that she was not trying to give a definitive number. She stated, ‘all I want to do is forget and so instead of spending all my time trying to remember how many times it happened I’m just trying to get through my day and not be obsessed over how many times it happened’. Whilst I accept she was not attempting to be definitive in her evidence and she did clearly indicate it was an estimate, these inconsistencies are not insignificant.Whilst I accept her explanation for why there might by inaccuracies in her evidence that does not alter the fact there are aspects of her account which are not reliable.It was submitted that if the accused moved into the Ashford address around September and she last saw him around 10 January and she saw him on alternate weekends that would equate to approximately 10 visits. I accept the number of days she spent with her father at the house at Ashford necessarily informs the opportunity he had to commit the offences and the number of offences which could have been committed. I do not however note the accused could have been staying at Ashford from before September as he signed the lease in July. I also note that each visit comprises two days. Whilst I do not accept a lack of opportunity, I do consider this inconsistency impacts the reliability of her evidence.(Emphasis added and citations omitted.) In relation to the complainant’s failure to mention the middle occasion of penile/vaginal sexual intercourse until 22 July 2022, the trial Judge also found this omission was significant. The trial Judge considered that the complainant’s presentation was highly convincing. After giving himself what was in effect a Robinson[1] direction, to scrutinise her evidence with great care, his Honour considered whether there was other evidence which provided support for aspects of the complainant’s account. Relevantly to appeal ground 1, his Honour then referred to the text messages in Exhibit P3, set out above, and said:[1] Robinson v The Queen (1999) 197 CLR 162. Again, these messages appeal to the complainant by reference to their relationship being special (our day), by blaming her, (you’ve chosen someone else, you’ve left me, you won’t respond to my messages), by telling her he as the adult knows what is best (I’m the adult, I’m your father) and lastly, by trying to guilt her into action by implying he may commit suicide. It is also not irrelevant that these messages were sent by the accused on both Sunday and Monday. This was not an isolated incident of such manipulative behaviour. It is significant in my view that the manipulation she describes as occurring in Exhibit P3 takes a number of different forms which are remarkably similar to the form of the manipulation she describes in her evidence when the offending in the car on the Esplanade begins. I note the words are not the same however the methodology behind the manipulation is the same. I also note the complainant stated she often felt as if she was letting him down or that she felt a responsibility to help and/or appease him. This feeling is consistent with their relationship being characterised by his manipulation of her. Exhibit P3, which was not disputed, therefore shows the relationship was attended by manipulation and this is relevant to the plausibility of her account. The evidence provides support for her description of their relationship as one involving manipulation and in particular manipulation in different forms. It rebuts any suggestion her evidence is implausible on the basis a father would not act in such a way towards his 12 year old daughter and/or rely on abuse, guilt and love and his position as the adult all at the same time.Additionally, Exhibit P3 provides support for the reliability and credibility of her evidence as to what occurred between them after 10 January 2016 and it is also evidence that the accused was aware that [the complainant] was susceptible to being manipulated by those techniques in the relevant time frame.Finally, I also consider that the comments made by the accused in the messages are consistent with her evidence that she saw the accused self-harming during this period. It makes sense that the accused knew [the complainant] had this knowledge as it explained why he knew threatening suicide would have an impact on her. I accept [the complainant’s] evidence that she did see such an act by the accused.…In the course of cross-examination, it appeared to be suggested to [the complainant] that in the telephone conversation in January 2016 the accused was in effect accusing the children of not loving him and not wanting to spend time with him. [The complainant] responded that she did not hear what the accused said to her brother. However she appeared to confirm that words of that nature had been said at some point during that period because she stated ‘and so it’s really hurtful when he said that we don’t love him or that he feels like we don’t love him because we were really trying but we were only children and we were doing the absolute best that we could.’ Not only is this another example of manipulation within their relationship which is not disputed, I also found her answer to be particularly compelling. I consider it reflected an honest attempt on her part to recount her relationship with her father at that time.The support Exhibit P3 gives to various aspects of the prosecution case is a significant consideration in my view to the assessment of her evidence. It is also I consider inconsistent with aspects of the evidence of Ms H. It either suggests Ms H was not as observant of their relationship dynamic as she purports to be or it suggests she has downplayed aspects of the accused’s behaviour in order to assist him.(Emphasis added.)

Decision

Reasons for decision

We reject this ground of appeal. Conclusion1.We grant permission to appeal but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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