Fergusson v The King

[2024] SASCA 63

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

FERGUSSON v THE KING

[2024] SASCA 63

Judgment of the Court of Appeal  

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

22 May 2024

CRIMINAL LAW - APPEAL AND NEW TRIAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES

This is a conviction appeal.

The appellant was charged with the offence of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). Following a trial by Judge alone, the appellant was found guilty of the offence.

The offending allegedly occurred between 19 December 2019 and 23 February 2021. At that time, the appellant was between 21 and 23 years of age, and the complainant was between 11 and 13 years of age. The appellant is the older brother of the complainant.

Most of the particularised acts were alleged to have occurred at the complainant’s home in Morphett Vale. Whilst the appellant did not live at the home, he would regularly stay there on weekends and on his own account, would often sleep the night in the complainant’s bedroom.

The prosecution adduced evidence of an initial complaint to the complainant 's best friend and an elaboration to her brother.

The appellant participated in a record of interview with police in May 2021, wherein he denied the allegations. It was an agreed fact that the appellant has no prior convictions. The appellant gave evidence in his own defence at trial and called good character evidence from two witnesses.

The appellant sought permission to appeal on three grounds relating to: first, the trial Judge’s use of the complainant’s distress when elaborating on her complaint to her brother; second, the trial Judge’s use of text messages sent by the complainant's mother  to the appellant to rebut recent invention; and third, the trial Judge’s use of evidence that the appellant regularly slept in the complainant’s bed to prove that he was sexually attracted to her when it was only relied on by the prosecution as evidence of his opportunity to commit the alleged unlawful sexual acts.

Held, by the Court, granting permission to appeal on Grounds 1 and 2, allowing the appeal, setting aside the conviction and ordering a new trial.

1.      The evidence of the complainant’s distress was not sufficiently temporally or causally connected to the alleged sexual offending to be admissible to support the complainant’s credibility, generally. The trial Judge's misuse of the evidence involved an error of law.

2.      The trial Judge’s use of the text messages to rebut an imputation of recent invention put by defence counsel…