(The Honourable Chief Justice Kourakis, The Honourable Justice Doyle and The Honourable Justice Livesey)
5 May 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Following a trial by judge and jury, the appellant was found guilty of two counts (counts 1 and 2) of maintaining an unlawful sexual relationship with a child in contravention of s 50(1) of the Criminal Law Consolidation Act 1935 (SA), and acquitted of one count (count 3) of indecent assault in contravention of s 56 of that Act.
The three counts each related to separate complainants and alleged offending by the appellant ranging from the mid-1980s through to the early 1990s. The complainants in relation to counts 2 and 3 (referred to as SM and KA) are sisters; and the complainant in relation to count 1 (referred to as LW) is the cousin of SM and KA. The appellant is the uncle of all three complainants.
The maximum penalty for maintaining an unlawful sexual relationship with a child is life imprisonment. The appellant was sentenced to 12 years imprisonment for count 1 and six years imprisonment for count 2. The judge made three years of the second sentence concurrent with the first sentence, resulting in an overall sentence of 15 years imprisonment. Having found the appellant to be a serious repeat offender and hence subject to a minimum non-parole period of four-fifths of the head sentence, his Honour fixed a non-parole period of 12 years.
The appellant has appealed both his convictions and his sentence.
In the appeal against conviction, the appellant relies upon three grounds.
The first ground of appeal alleges that the trial judge erred by dismissing the appellant’s application for severance of count 1 from counts 2 and 3 made at the end of the prosecution case. In developing submissions on appeal, counsel for the appellant accepted that this ground turned upon the cross-admissibility of the evidence on the various counts.
The second and third grounds of appeal allege that the verdicts in relation to counts 1 and 2 were unreasonable and cannot be supported by the evidence. In essence, the appellant contends that the inconsistencies and discrepancies in the complainants’ evidence were such that a reasonable jury ought to have had a reasonable doubt about the appellant’s guilt on both counts.
In his application for permission to appeal against sentence the appellant relies upon a single ground of appeal, namely that the sentence imposed…
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.
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AGLC
DES v The Queen [2020] SASCFC 32
Case
[2020] SASCFC 32
Decision Date
CaseChat Overview and Summary
The case of DES v The Queen involved the appellant, who was convicted of multiple charges of sexual offences against children. The appellant was found guilty of maintaining a sexual relationship with a child under 16 and persistent sexual abuse of a child under 16. The matter was heard in the High Court of Australia, where the appellant appealed against both his conviction and his sentence. The central legal issues in this case were the sufficiency of the evidence to support the conviction and the appropriateness of the sentence imposed by the lower court.
The court examined the evidence provided by the complainants and determined that the jury was entitled to find the appellant guilty based on the credibility and reliability of the complainants' testimony. The court rejected the appellant's arguments that the evidence was inconsistent or unreliable, finding that the jury could reasonably conclude that the appellant was guilty beyond a reasonable doubt. Regarding the sentence, the court found that the sentence was not manifestly excessive or inadequate and therefore dismissed the appeal against the sentence.
In summary, the High Court upheld the appellant's conviction for the sexual offences against children and rejected his appeal against the sentence. The court found that the evidence was sufficient to support the conviction and that the sentence imposed was appropriate.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The trial commenced on 22 October 2019. The three complainants each gave evidence in the prosecution case. Their evidence may be summarised as follows.The complainant LW’s evidence LW was born on 19 April 1977. Her evidence was that she was repeatedly sexually abused by her uncle, the appellant, during a period that commenced when she was eight or nine years of age and concluded when she was 12 years of age (that is, a period of between about 1985 and 1989/1990). LW said that her family moved to 23 Kilmington Road, Davoren Park when she was about five or six years of age (that is, in about 1982 or 1983). The first incident of sexual abuse occurred at night in the front room of her nanna’s[3] house at 21 Kilmington Road. She was staying the night at her nanna’s house with her sister and two friends on the night before she attended the appellant’s wedding to LL. They were all sleeping in the same room. LW woke to the feeling of something warm between her legs, which she came to realise was a penis being rubbed “back and forth” between her legs. She was shocked and initially thought it might have been one the boys sleeping in the room. But when she called that boy’s name, an adult hand was placed across her mouth. She smelt beer and heard the appellant say “shoosh”, and to “be quiet”. She recognised the appellant’s voice, although she did not see his face. The appellant stopped what he was doing and walked out of the room, and she went back to sleep.[3] Her nanna was her maternal grandmother, and the mother of the appellant. A week or two later the appellant, while babysitting LW and her sister (AW) at 23 Kilmington Road, was tickling LW. During the course of this, he placed his finger in her pants and touched her vagina. When he inserted his finger “just a little bit” she said to the appellant that it hurt and he stopped. LW said that after this incident, the sexual abuse occurred “quite regularly”. Indeed, she said it occurred whenever her mother and her mother’s partner were out drinking, and her uncle was babysitting her, which she said was virtually every other weekend. She said that often her nanna was babysitting her but that her uncle, who was living next door with her nanna around this time, would come over with her and indeed sometimes tell her nanna that she could go back home while he babysat LW and her siblings. LW described one occasion when the appellant got into her bed behind her and put his penis between her thighs. She said that she and AW slept in the same room in a bunk bed and that generally AW slept in the top bed while she slept in the bottom bed. However, on this night they had both been sleeping in the bottom bed together, with LW lying close to the wall and AW sleeping in front of her. She woke to find the appellant behind her, with his back up against the wall, and rubbing his penis between her thighs. She remembered her sister waking and running out to their mother (who she thought was in her bedroom at the time). She was not sure what AW said to their mother, but after a while (“a good eight to 10 minutes”) her mother came into the room and “pulled” or “dragged” the appellant out of her bed and told him to go home, or to “get the eff out”. LW said that the appellant was still behind her and had his pants down when her mother came into the room. He was really drunk and said something about thinking he was already home. LW could not recall anyone other than her sister, her mother and the appellant being present. She thought her nanna had been babysitting them but had already gone home by that stage.
Decision
Reasons for decision
It was perhaps also significant that it was implicit in LW’s evidence as to the false allegation that she was encouraged to make, that her mother (and also, it would seem, her nanna) were aware of the abuse by the appellant but were apparently not concerned enough to ensure that he was identified as the perpetrator. This apparent attitude by LW’s mother (and perhaps also her nanna) might be seen as consistent with the appellant’s apparent lack of concern about being observed by them abusing LW.Conclusion For the reasons set out, I do not consider that any of the above challenges to the credibility and reliability of LW’s evidence were sufficient to require that the jury have a reasonable doubt about the appellant’s guilt. Nor do I consider that the cumulative effect of those challenges was such as to require that the jury have a reasonable doubt. In my view, it was reasonably open to the jury, based upon LW’s evidence (particularly when viewed in combination with the corroborative evidence of AW, the complaint evidence of TH and the cross-admissible evidence of SM) to find count 1 proved beyond reasonable doubt. It follows that ground 2 of the appeal against conviction has not been made out.Challenges to the evidence of complainant SM The challenges made to the complainant SM’s evidence in support of count 2 may be summarised or grouped as follows:1. inconsistencies between her evidence as to the timing of the abuse and the appellant’s evidence about when he lived at 21 Kilmington Road; and2. inconsistencies between her evidence and that of KA. As to the first of these, on SM’s evidence she was abused on various occasion between the ages of 11 and 13 (that is, between about 1989 and 1991), and this abuse occurred at her grandparents’ house at 21 Kilmington Road, and during a period while the appellant was living at that address. However, on the appellant’s evidence, he had ceased living at that address by that point in time. He was living a few houses down the road with LL, and was only spending about one night a month at 21 Kilmington Road. On the face of it, there is a tension between the evidence of SM and the appellant. While it is true that the appellant’s evidence as to his living arrangements was not significantly challenged, as I explained earlier, his evidence in this respect was relatively general. The complainant SM’s evidence was similarly general in its terms. Indeed, given the time that had passed it was entirely to be expected that the evidence as to such matters would not be precise. In my view, it was reasonably open to the jury to conclude either or both SM and the appellant were slightly out in the time frames they gave, or that even after he had moved in with LL, the appellant continued to stay at 21 Kilmington Road more frequently than the approximately once a month estimate that he gave. I do not consider that the tension between the evidence of SM and the appellant as to timing and opportunity was of such a nature as to require a reasonable doubt on the part of the jury as to count 2.