On appeal from the Supreme Court of South Australia
Representation
M E Shaw QC with B J Doyle for the appellant (instructed by Town & Country Lawyers)
C D Bleby SC, Solicitor-General for the State of South Australia with B Lodge for the respondent (instructed by Director of Public Prosecutions (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
DL v The Queen
Criminal law – Trial by judge alone – Adequacy of reasons – Where appellant convicted of "[p]ersistent sexual exploitation of a child" – Where offence comprised of two or more acts of sexual exploitation separated by not less than three days – Where complainant alleged various acts of sexual exploitation over many years – Where alleged inconsistencies and implausibilities in complainant's evidence – Where trial judge regarded complainant as reliable witness as to "core allegations" – Whether trial judge's reasons inadequate because failed to identify two or more acts constituting offence – Whether trial judge's reasons inadequate because failed to explain process of reasoning.
Words and phrases – "adequacy of reasons", "basis for decision", "conflict between evidence", "credibility", "inadequacy of reasons", "inconsistencies in evidence", "process of reasoning", "reasons", "trial by judge alone".
The appellant was charged under s 50(1) of the Criminal Law Consolidation Act1935 (SA) with one count of persistent sexual exploitation of a child. At the relevant time, that sub-section created an offence where an adult person, "over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age". The appellant was tried by judge alone and convicted. He was sentenced to 10 years' imprisonment for "indecent assaults [upon the victim], acts of fellatio upon each other, the showing of pornographic magazines, masturbating in the victim's presence and causing the victim to masturbate".
The appellant appealed to the Court of Criminal Appeal of the Supreme Court of South Australia. One ground of appeal to that Court was that the trial judge's reasons were inadequate. The Court of Criminal Appeal (Blue J, with whom Kourakis CJ and Bampton J agreed) held that the reasons were not inadequate. The appellant appeals to this Court from that conclusion. But he relies upon a different basis for the alleged inadequacy of the trial judge's reasons. The essential basis of his appeal raised an issue that overlapped with two other matters that were also given special leave to appeal[1]. The issue in this appeal is whether the trial judge's reasons failed to identify, and to disclose the process of reasoning leading to his finding of, the two or more acts of sexual exploitation upon…
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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Details
AGLC
DL v The Queen [2018] HCA 26
Case
[2018] HCA 26
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by DL against his conviction for persistent sexual exploitation of a child. The appellant's primary contention was that the trial judge, who conducted a trial by judge alone, failed to provide adequate reasons for his verdict. Specifically, DL argued that the judge did not identify the specific acts of sexual exploitation that formed the basis of the conviction, nor did he adequately explain the reasoning process that led him to be satisfied of guilt beyond reasonable doubt.
The legal issue before the High Court was whether the trial judge's reasons for convicting the appellant were legally inadequate. This inadequacy, the appellant submitted, arose from the failure to specify the two or more distinct acts of sexual exploitation constituting the offence, and to articulate the reasoning process by which the judge concluded those acts were proven beyond reasonable doubt. The appellant argued that this failure amounted to a miscarriage of justice.
The High Court, in its reasoning, considered the trial judge's findings that the complainant was a reliable witness as to the "core allegations" and that he was "describing real events that happened to him". The Court concluded that these statements, when read in the context of the entire judgment and the particulars of the charge, indicated the judge's acceptance of the complainant's evidence regarding all the sexual acts alleged to constitute the offence. The Court found that the reference to "core allegations" was consistent with the judge's focus on the substantive issues of the sexual conduct, and that the judge had implicitly found the appellant had committed all the acts alleged in the particulars. Therefore, the Court held that the trial judge's reasons were not inadequate on the basis argued by the appellant.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
On 24 October 2017 Nettle and Gordon JJ granted the appellant special leave to appeal. The essence of the appellant's challenge in this Court is the trial judge's failure to identify the two or more acts of sexual exploitation of the commission of which his Honour was satisfied beyond reasonable doubt, and to explain the process of reasoning leading to that satisfaction. He submits that the failures involved legal error. For the reasons to be given, that submission should be accepted. The failure to give adequate reasons for a verdict following a trial by a judge alone is a miscarriage of justice under the third limb of the common form criminal appeal provision (here, s 353(1) of the CLCA). It is unnecessary to consider whether it is also correctly characterised as a "wrong decision on any question of law"[30] under the second limb of the provision. Relevantly, for the purposes of the consequential order, the appellant does not submit in this Court that his conviction is unreasonable, or that it cannot be supported having regard to the evidence, under the first limb of the provision. The appeal should be allowed and a new trial directed. [30]Cf AK v Western Australia (2008) 232 CLR 438 at 453 [47] per Gummow and Hayne JJ; [2008] HCA 8. The background evidence MGF was between 5 and 15 years old, and the appellant was between 31 and 41 years old, in the period of the alleged offending. Throughout this period the appellant was married to W, who is MGF's aunt. The offending was alleged to have taken place largely at the appellant's and W's home at Christies Beach, South Australia ("the Christies Beach house"). MGF, his older sister and, later, his younger brother stayed at the Christies Beach house during some school holidays and on some weekends. MGF first reported the offences to the police in late 2011. At the date of giving evidence, MGF was 35 years old. MGF's evidence MGF's evidence was as follows. The abuse commenced when he was aged around five years. He was playing with slot cars, which were set up in the lounge room of the Christies Beach house, when the appellant touched his "private parts" over his clothing. Indecent touching of this description "went on lots of times while I was in the lounge room". On occasions, indecent touching of the same description occurred when MGF was playing computer games in the master bedroom of the Christies Beach house. On "numerous" occasions the appellant masturbated in front of MGF in the master bedroom while MGF was playing computer games. On some of these occasions, with the appellant's encouragement, MGF also masturbated. In cross-examination, MGF explained that the occasions of masturbation did not occur all the time but they occurred "more than once". When pressed, MGF put the number of occasions on which the appellant and he masturbated at "about three, four times". From when MGF was about seven years old, the appellant had shown him pornographic magazines and videos. The magazines had "Asian content" and the videos were "of Asian women with Aussie men and Asian men as well". MGF gave no further description of the nature of the material.
Evidence
Evidence Before The Court
The appellant appealed to the Court of Criminal Appeal of the Supreme Court of South Australia. One ground of appeal to that Court was that the trial judge's reasons were inadequate. The Court of Criminal Appeal (Blue J, with whom Kourakis CJ and Bampton J agreed) held that the reasons were not inadequate. The appellant appeals to this Court from that conclusion. But he relies upon a different basis for the alleged inadequacy of the trial judge's reasons. The essential basis of his appeal raised an issue that overlapped with two other matters that were also given special leave to appeal[1]. The issue in this appeal is whether the trial judge's reasons failed to identify, and to disclose the process of reasoning leading to his finding of, the two or more acts of sexual exploitation upon which the conviction was based. The appellant's submission that the trial judge's reasons were inadequate for this reason should not be accepted. For the reasons below, the appeal should be dismissed.The particulars and the evidence[1]Hamra v The Queen (2017) 91 ALJR 1007; 347 ALR 586; [2017] HCA 38; Chiro v The Queen (2017) 91 ALJR 974; 347 ALR 546; [2017] HCA 37.The particulars of the offence charged The particulars of the offence charged in the information under s 50(1) of the Criminal Law Consolidation Act were that the appellant: (i) touched the complainant's genitals over the complainant's clothes; (ii) showed the complainant pornography; (iii) masturbated in the complainant's presence; (iv) encouraged the complainant to masturbate in his presence; (v) caused the complainant to perform fellatio upon him; and (vi) performed fellatio upon the complainant. The period during which the offence was alleged to have been committed began on 6 February 1984, when the appellant was 31 years old and the complainant was five years old. It was alleged to have concluded on 1 September 1994, when the appellant was 41 years old and the complainant was 15 years old.The prosecution case At the time of the acts relied upon by the prosecution, the complainant was a child who lived with his parents and his brother and sister. The appellant was the complainant's uncle. Because of the work commitments of the complainant's parents, the complainant and his siblings, an older sister and a younger brother, occasionally stayed with the appellant's family at the appellant's house in Christies Beach. The appellant lived with his then wife and, initially, one daughter. The prosecution case relied heavily upon evidence of the complainant although the prosecution also called the complainant's wife, his parents, his sister, his brother, and his aunt. The complainant's evidence was that the first occasion of a sexual assault by the appellant was when the complainant was "about five" years old, in the lounge room of the appellant's house. On that occasion, the appellant touched him on his genital area over his clothing while he and the appellant were playing with a slot car track. The complainant gave evidence of other occasions when the appellant touched him on his genital area over his clothing. One occasion was at his grandmother's house on Christmas Day when he was "nine ... or seven", when the appellant gave him a remote control car. Other occasions of such touching occurred after he was "close to nine", when the appellant would take him to a slot car venue called Red Line. The complainant said that during some of the journeys to Red Line, in the appellant's car, the appellant would touch the complainant on his genital area.
Decision
Reasons for decision
KIEFEL CJ, KEANE AND EDELMAN JJ
BELL J
NETTLE J
When these paragraphs are considered in the context discussed above, the findings by the trial judge that the complainant "was describing real events that happened to him" and that he was "a reliable witness as to the core allegations" were an acceptance that the complainant was truthful and reliable about all of the sexual acts that he had described, which fell within the particulars of the s 50 offence for which the appellant was charged. The "core allegations" to which the trial judge referred must have been a reference to those acts that were the basis for the s 50 charge, with allegations such as the complainant's particular age at the time of the sexual offences or the precise location of those offences being outside the core allegations. The reference to "core allegations" is consistent with the description by the trial judge of all the allegations of sexual conduct as the "substantive issues". It is also consistent with the distinction that he drew between the evidence concerning the "substantive allegations" and inconsistencies on other matters arising from the evidence.The decision of the Court of Criminal Appeal and the appeal to this Court The appellant relied upon three grounds of appeal in the Court of Criminal Appeal. The first was that the verdict was unreasonable or could not be supported having regard to the evidence. The second was that the trial judge had erred in his application of the burden of proof. The third was that the trial judge erred "in failing to give adequate reasons in so far as he did not deal with incontrovertible, or arguably incontrovertible inconsistencies affecting the credibility of the complainant, and consequently his conclusion of proof beyond reasonable doubt". The Court of Criminal Appeal dismissed all grounds. None of those grounds was relied upon in this Court. Before this Court, there were three limbs to the appellant's sole ground of appeal. The appellant alleged that the Court of Criminal Appeal should have found that: (i) the trial judge had failed to give adequate reasons; (ii) the verdict of guilty was uncertain, unreasonable, and unsafe; and/or (iii) there was a miscarriage of justice. As the appellant clarified in oral submissions, the references to "unreasonableness" and "miscarriage of justice" were in support of the submission that the trial judge's reasons were inadequate due to a failure to identify sufficiently the actus reus of the offence. Although the appellant's oral submissions strayed at times from the grounds of appeal, the appellant's argument reduced ultimately to whether the trial judge's reasons were inadequate because they "did not identify the two or more acts of sexual exploitation found proved beyond reasonable doubt ... and the process of reasoning leading to guilt of those acts". The appellant submitted that the Court of Criminal Appeal erred because it did not approach the ground of appeal concerning adequacy of reasons "by reference to the proof of actual sexual offences comprising the actus reus". The submission that the trial judge's reasons were inadequate on that basis was not made in the Court of Criminal Appeal. The submission might not have been made in the Court of Criminal Appeal because counsel may have concluded that the trial judge's reasons, read as a whole, involved a finding that the appellant had committed all of the acts alleged in the particulars to constitute the s 50 offence.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, KEANE AND EDELMAN JJ,
BELL J,
NETTLE J