DINEDIOS v Police - [2016] SASC 146

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DINEDIOS v POLICE
[2016] SASC 146
Judgment of The Honourable Justice Doyle
7 September 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
A Magistrate convicted the appellant of two counts of indecent assault. The complainant, the appellant, and the appellant’s two daughters had attended a birthday party in Whyalla. The offending was alleged to have occurred during the evening while the appellant was checking on his eldest daughter who was sleeping next to the complainant on a recliner.
The appellant appealed on a number of grounds. The appellant contended that the Magistrate failed to direct herself on the proper use of the evidence of complaint and distress; erred in her approach to, assessment of, the appellant’s evidence, and in making the findings she made in relation to credit; and erred in her assessment of the reliability and credibility of the complainant’s evidence. The appellant also contended that the verdicts were unsafe, unsound and against the weight of the evidence.
Held per Doyle J, dismissing the appeal:
1. No error in the Magistrate’s approach or assessment has been established.
Criminal Law Consolidation Act 1935 (SA) s 56(1), referred to.
R v J, JA (2009) 105 SASR 563; R v Baltensperger (2004) 90 SASR 129; R v Keyte (2000) 78 SASR 68; R v Dennis (2010) 202 A Crim R 453; R v Latifi [2014] SASCFC 74; R v R, R & R, LJ [2008] SASC 35; R v Livingstone (2011) 109 SASR 380; Driscoll v The Queen (1977) 137 CLR 517, considered.

DINEDIOS v POLICE
[2016] SASC 146
Magistrates Appeal.
DOYLE J:

The appellant was charged with three counts of indecent assault, contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). A Magistrate convicted the appellant of counts 1 and 2, but acquitted him of count 3.
In this appeal against his conviction of counts 1 and 2, the appellant relies upon 10 grounds of appeal. Those grounds may be summarised as alleging:
1.The Magistrate erred in failing to direct herself on the proper use of the evidence of complaint and distress (grounds 4, 5 and 8).
2.The Magistrate erred in her approach to, and assessment of, the appellant’s evidence, and in making the finding she made as to his (lack of) credit (grounds 3, 6 and 9).
3.The Magistrate erred in her assessment of the reliability and credibility of the complainant’s evidence (ground 7).
4.The verdicts of guilty were unsafe, unsound and against the weight of the evidence (grounds 1 and 10).
The appellant also alleged that the convictions on counts 1 and 2 are inconsistent with the acquittal on count 3 (ground of appeal 2), however that ground of appeal was ultimately not pressed.
Background
At the relevant time, the complainant was 14 years of age.…

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 DINEDIOS v Police

Details

AGLC: DINEDIOS v Police [2016] SASC 146
Case: [2016] SASC 146
Decision Date: 7 September 2016

CaseChat Overview and Summary

In the case of Dinedios v Police, the appellant sought to appeal against his convictions of indecent assault against a 14-year-old girl. The incidents occurred during a birthday party where the appellant was checking on his sleeping daughter who was lying on a recliner next to the complainant. The Information alleged three counts of indecent assault, which were later particularised in court. The complainant gave evidence supporting the allegations, while the appellant claimed that any contact was accidental and not indecent. The appeal was dismissed by the Supreme Court.

The primary legal issue in this appeal was whether the primary judge erred in finding the appellant guilty of two counts of indecent assault. The court had to consider the credibility and reliability of the evidence provided by the complainant and the appellant. The court also had to determine whether the appellant's contact with the complainant was accidental or intentional, and whether it amounted to an indecent assault.

The court found that the primary judge was entitled to prefer the evidence of the complainant over that of the appellant. The court found that the complainant's evidence was credible, consistent, and supported by the physical evidence. The court also found that the appellant's evidence was inconsistent and lacked credibility. The court concluded that the appellant intentionally touched the complainant's breasts and bottom, which amounted to an indecent assault.

The appeal was dismissed, and the convictions were upheld. The court found that none of the grounds of appeal had been made out, and the primary judge's findings were not erroneous. The appellant's contact with the complainant was intentional and amounted to an indecent assault. The court found that the primary judge was entitled to prefer the complainant's evidence over that of the appellant, and the convictions were properly based on that evidence.

Orders

Orders of the court

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Background

Background to the litigation

The appellant also alleged that the convictions on counts 1 and 2 are inconsistent with the acquittal on count 3 (ground of appeal 2), however that ground of appeal was ultimately not pressed. Background At the relevant time, the complainant was 14 years of age. The appellant is the brother of her aunt’s partner. On the date of the incidents, 2 August 2014, the complainant and the appellant were attending a birthday party in Whyalla for the complainant’s seven year old twin cousins. The party was at the home of the mother of the twins, who was the complainant’s aunt. The appellant took his two children (aged 4 and 7 at the time) to the party. The party was during the afternoon, but some of the guests decided to stay the night. The complainant’s mother attended the party but left in the evening. The complainant stayed. The aunt set up a sleeping area for the children in the lounge area. The complainant and the appellant’s seven year old daughter (S) settled in together on a recliner chair in the lounge. The aunt slept on a mattress a couple of metres from the foot of the recliner chair. The offending was alleged to have occurred during the late evening while the appellant was checking on his daughter, who was lying on the recliner next to the complainant. The Information alleged three counts of indecent assault. At the commencement of the trial the three counts were particularised as follows:1.While the complainant was on the recliner, the defendant came over and touched her on the breast area, moved his hand from her breast to her stomach area and then left.2.The appellant returned sometime later and touched the complainant’s breast and bottom area before leaving again.3.The appellant touched the complainant on her lips and put his hand under her jumper from the neck area towards her breasts. The complainant gave evidence in support of the allegations, the detail of which is summarised below. The prosecution also called evidence from the aunt, which included complaint evidence. The appellant gave evidence. His evidence, and the defence case, was that he attended to his daughter on the recliner on several occasions that evening, initially to assist in settling her and then subsequently to check upon her. On a couple of occasions he made contact with the complainant in an attempt to move her away from his daughter. On his version of events, his contact was with the hip and forearm or shoulder of the complainant and not her breast. Any other contact with the complainant was fleeting and accidental. Against the background of this overview, it is appropriate to commence by summarising the critical evidence of the three witnesses, before turning to the key aspects of the Magistrate’s reasoning and conclusion.The complainant’s evidence The complainant’s evidence was that after taking S out to say goodnight to her father, the appellant, she and S attempted to go to sleep lying next to each other on the recliner. After a while, the complainant heard S asking her father to sit next to her. She lay next to S, trying to sleep, while the appellant was kneeling beside his daughter and assisting her to settle and go to sleep. He was patting S on her head and talking to her quietly. The complainant was lying on the wall side of the recliner. She was lying on her side, with her back facing the wall and her front facing S. S was between her and the appellant, who was at the side of the recliner. The recliner was about halfway between the upright and horizontal positions. There was a blanket over the complainant and S as they lay on the recliner, although it only covered the bottom half of them.

Evidence

Evidence Before The Court

Against the background of this overview, it is appropriate to commence by summarising the critical evidence of the three witnesses, before turning to the key aspects of the Magistrate’s reasoning and conclusion.The complainant’s evidence The complainant’s evidence was that after taking S out to say goodnight to her father, the appellant, she and S attempted to go to sleep lying next to each other on the recliner. After a while, the complainant heard S asking her father to sit next to her. She lay next to S, trying to sleep, while the appellant was kneeling beside his daughter and assisting her to settle and go to sleep. He was patting S on her head and talking to her quietly. The complainant was lying on the wall side of the recliner. She was lying on her side, with her back facing the wall and her front facing S. S was between her and the appellant, who was at the side of the recliner. The recliner was about halfway between the upright and horizontal positions. There was a blanket over the complainant and S as they lay on the recliner, although it only covered the bottom half of them. The complainant said that after about five minutes she “felt a press on [her] breast”. She also described it as a “light squeeze”. The contact was to her right breast, and on the outside of the jumper she was wearing. It lasted “about 10 seconds”. She heard the appellant sigh, and he then stood up and left and returned outside to where some of the adults were still drinking and talking. While her aunt, and some of her cousins, were in the room at the time, she thought they were all asleep. At the time, the complainant did not know what to think about what had happened. She was not sure whether it was an accident. She was embarrassed, but tried to go to sleep and succeeded in doing so. The complainant said that she then woke up to the touch of the appellant again. She opened her eyes and saw him. He was at the side of the recliner, on S’s side. The complainant said that the appellant touched her right breast again. The contact was “harder” than the previous occasion, and felt like “more of a squeeze”. The contact was to the outside of her jumper and lasted for “the same amount of time, about seven seconds.” The appellant did not say anything. She could hear S snoring, and assumed she was asleep. The complainant had her eyes closed. She heard the appellant leave and walk to an adjacent room where he was apparently going to sleep. The complainant was scared and did not know what was going on. She did not try and move until the appellant had left. The complainant said that at that point she started to cry, and could not stop crying. She now knew that it was not an accident. She said she “freaked out”, but did not want to wake everyone up because she did not want to “mess everything up” on the twins’ birthday. The complainant stood up and went over to her cousin (J) who was sleeping on the other side of the room. She woke him and asked to borrow his phone, but as he did not have it available, she went back to her position on the recliner next to S and tried to go back to sleep. She tried rolling over into a position “where he [could not] touch my breasts”, with her left arm in front of her.

Decision

Reasons for decision

At the risk of repetition, I am conscious of the requirement that I undertake my own review and assessment of the evidence. However, in a case such as the present, where the case turned on the assessment of the evidence of the two key witnesses (the complainant and the appellant), the advantages experienced by the Magistrate were very significant. Having read the transcript and the Magistrate’s reasons, there is nothing that suggests error on the part of the Magistrate in her assessment of the witnesses and hence in the ultimate findings made.Conclusion None of the grounds of appeal has been made out. The appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

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