Bates v The King

Case [2023] SASCA 65

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

BATES v THE KING

[2023] SASCA 65

Judgment of the Court of Appeal  

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

15 June 2023

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - TAKING OBJECTION TO SUMMING UP

CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE

This is an appeal against conviction.

Following a trial by jury, the appellant was convicted 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) (‘CLCA’). The particulars alleged that between 24 December 2010 and 30 November 2015, the appellant maintained an unlawful sexual relationship with the complainant by engaging in two or more sexual acts with her when she was between the age of five and 10 years old. At the time of the charged offence, the complainant was the daughter of the appellant’s former de-facto partner and was living at the appellant’s farmhouse with her mother, older stepsister, and younger brother.

At trial, the only issue in dispute was whether the prosecution had proved that two or more of the alleged sexual acts had occurred.

The prosecution also relied on evidence of an uncharged act which involved the appellant calling the complainant into the kitchen while he stood at the kitchen table with his erect penis exposed and the tip covered in icing (‘the uncharged act’). At trial, it was common ground that the uncharged act constituted evidence of discreditable conduct such that ss 34P and 34R of the Evidence Act 1929 (SA) (‘the Evidence Act’) were engaged. The prosecution sought to rely on the evidence of the uncharged act for a non-propensity purpose pursuant to s 34P(2)(a) of the Evidence Act to provide the context in which the particularised sexual acts were alleged to have occurred.

The prosecution case relied almost entirely on the evidence of the complainant. On the defence case, the complainant’s evidence could not be accepted on three premises: first, her demeanour and manner of giving evidence was ‘monotonal’; secondly, the inconsistencies in her own account of events and the fact that her evidence was without any material support; and thirdly, there were aspects of her account that were implausible. The defence case also emphasised the appellant’s denials in his interview with police on 25 November 2020 which, it was submitted, reflected his innocence.

The appellant now seeks permission to appeal against his conviction on four grounds of…

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Bates v The King [2023] SASCA 65
Case
[2023] SASCA 65
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, Bates, for offences of maintaining a sexual relationship with a child and persistent sexual abuse of a child. The complainant, MS, alleged that a series of unlawful sexual incidents occurred between December 2010 and November 2015 at the appellant's farm. MS was unable to provide precise dates or a chronological order for these alleged incidents, only being able to narrow the timeframe by reference to her stepsister's departure from the home.

The legal issues before the Court of Appeal included whether the verdict was unreasonable or insupportable having regard to the evidence, whether there was a misdirection or non-direction in the summing up, and whether a warning regarding the complainant's delay in reporting the offending, often referred to as a "Longman warning," was required or advisable. The Court also considered the judicial discretion to admit or exclude evidence, particularly where that evidence might be prejudicial.

The Court of Appeal granted permission to appeal on one ground and referred the consideration of permission for other grounds to the full Court. The evidence presented at trial detailed MS's allegations of specific sexual acts, including an incident of inappropriate touching while she was on the appellant's lap and a subsequent incident where a pencil was inserted into her vagina. MS's inability to recall specific dates, her age at the time of the incidents, or the precise circumstances surrounding them formed a significant part of the evidence considered. The Court's reasoning would have addressed the adequacy of the evidence to support the verdict, the directions given to the jury concerning the complainant's evidence, and the application of principles relating to the admission of potentially prejudicial evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Permission to appeal was granted in respect of Ground 4. The question of permission to appeal with respect to Grounds 1, 2 and 3 were referred to this Court for consideration. The evidence In order to properly consider the appeal grounds, it is necessary to outline in some detail the evidence at trial. In December 2010, MS commenced living at the appellant’s farm in Verran with her mother, younger brother, DS, and older stepsister, PS. Between 24 December 2010 and 30 November 2015, MS alleged that nine unlawful sexual incidents occurred at the appellant’s farm; eight were particularised as part of the charged offence, and a further incident was alleged as an uncharged act. MS could not specify when each incident took place, nor the complete chronological order in which they occurred. Outside of the nine unlawful sexual acts, MS gave no evidence of any other uncharged offending having occurred. MS could only narrow the dates over which the alleged offending occurred by reference to her older stepsister PS, who moved out in 2011 or 2012. MS said that all of the unlawful sexual acts took place after PS left home. The appellant worked on the farm whilst AS ran a hairdressing salon in Cleve. MS and her brother DS caught the bus to school most days and would arrive home at about 4:00pm, whereas their mother, AS, would arrive home from work at about 5:30pm or 6:00pm. The appellant would generally commence working before AS left for work and return after she got home from work, although sometimes the appellant would be in the office when MS and DS returned from school. There were also other occasions when their mother was out, such as a sewing class on Wednesday night, or if she had to work on Saturday, and they would be alone with the appellant. Particularised unlawful sexual acts MS was asked about the first instance of inappropriate touching by the appellant. She described an incident which occurred while she was watching television in the lounge room. MS said she was sitting on the appellant’s lap when he put his hands down her pants and rubbed the outside of her vagina (‘the first incident’). MS pushed the appellant’s arm away, but it had no effect. She could not recall how old she was at the time, during what year this occurred, or what year of school she was attending. MS agreed that in her police statement she did not identify this incident as being the first occasion of inappropriate touching. Next, MS described another incident in the lounge room which she said occurred in the same manner as the first incident, except on this occasion the appellant inserted the end of a lead pencil into her vagina (‘the pencil incident’). She said it felt cold but not painful. She said there was a pencil pot positioned on a table next to the recliner from where the appellant retrieved the pencil. Her mother, AS, also gave evidence that there was a pencil pot in that location. MS said this incident occurred after the first incident but could not specify how long later in terms of days, weeks or months. Nor could MS recall how she came to be sitting on the appellant’s lap or whether he pulled her pants down or pushed them to the side. She said it occurred during an afternoon but could not recall if her mother or younger brother were home.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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