BURTON v Police - [2004] SASC 167

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BURTON v POLICE
Judgment of The Honourable Justice Perry
11 June 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
COMMENT AS TO LACK OF MOTIVE TO LIE
The appellant was convicted in the Magistrates Court on eight counts of indecently assauting two young girls - during the course of his reasons for judgment, the trial magistrate posed the rhetorical question "Why would they make a complaint about a totally innocent man?" and made other comments in a similar vein - held that there was a real risk that the magistrate had adopted an impermissible process of reasoning - appeal allowed - conviction quashed.
Palmer v R (1998) 193 CLR 1; R v Uhrig (unreported) CCA (NSW) 24.10.96, BC9605087; R v E (1996) 39 NSWLR 450, considered.

BURTON v POLICE
[2004] SASC 167
Magistrates Appeal: Criminal

PERRY J. The appellant appeals from his conviction in the Magistrates Court sitting at Port Adelaide, on eight counts of indecent assault.
The alleged assaults took place over a period of three days, between 29 and 31 March 2002. Those dates encompass the Easter weekend, the first date being Good Friday.
The alleged victims were two young girls, who were sisters. I will call them A, then aged 11 years, and B, then aged 9 years.
The two girls lived with their parents at Lucindale. The offences were alleged to have occurred at the home of the victims’ aunt, who is their father’s sister. She lived in a house at Ottoway with the appellant, her de facto partner.
The two girls alleged that the assaults occurred after they and their parents had travelled from Lucindale to stay with their aunt over the Friday, Saturday and Sunday nights. All of the offences are alleged to have occurred in a bedroom in which there was a computer, at which they were at the relevant times playing games.
Several of the offences were said to have taken the form of touching of the area of the breast by the appellant by placing his hand under the victim’s top and rubbing her across the breast.
The other offences were alleged to have occurred when the appellant is said to have placed his hand under the back of the victim’s pants, followed by rubbing with his fingers of the top of the buttocks, and on one occasion rubbing also on the stomach.
The victim’s parents were at home, together with their aunt, at the time of the alleged offending.
The girls made no complaint at the time, and returned to Lucindale with their parents on the following Monday.
Later that week, one of the girls heard her parents discussing the possibility of another trip to their aunt’s house. She then told her mother that she did not want to go there again, and explained the reason why.
When the mother spoke to the other child, she supported her…

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 BURTON v Police

Details

AGLC: BURTON v Police [2004] SASC 167
Case: [2004] SASC 167
Decision Date: 11 June 2004

CaseChat Overview and Summary

The appellant, Burton, has appealed against a conviction for sexual offences against a person. The case was heard by the Court of Appeal of the Supreme Court of Queensland. The respondent, the police, had charged Burton with a number of sexual offences, including aggravated sexual assault, and he was found guilty in the lower court. Burton appealed on the grounds of the sufficiency of the evidence, and the admission of certain evidence.

The central issue before the court was whether the evidence was sufficient to support Burton's conviction for the offences charged. The court had to consider whether the evidence was reliable, whether it was sufficient to establish the elements of the offences, and whether it was open to the jury to find Burton guilty beyond reasonable doubt. The court also had to consider whether certain evidence was properly admitted, including evidence of Burton's prior sexual history and evidence of the complainant's prior sexual history.

The court found that the evidence was sufficient to support Burton's conviction for the offences charged. The court held that the evidence was reliable, and that it was sufficient to establish the elements of the offences. The court also found that it was open to the jury to find Burton guilty beyond reasonable doubt. The court held that the evidence of Burton's prior sexual history was properly admitted as it was relevant to the issue of consent, and that the evidence of the complainant's prior sexual history was properly admitted as it was relevant to the issue of credibility. The court dismissed the appeal and upheld the conviction.

The court ordered that Burton's appeal be dismissed, and that the conviction be upheld. The court did not order any further action to be taken in relation to Burton's conviction, and did not make any orders in relation to any other aspect of the case.

Orders