Fragos v The King

Case [2023] SASCA 6

Supreme Court of South Australia

(Court of Appeal: Criminal)

FRAGOS v THE KING

[2023] SASCA 6

Judgment of the Court of Appeal  

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

9 February 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

The appellant was found guilty by jury of maintaining an unlawful sexual relationship with his stepdaughter. The prosecution case at trial was that, when the complainant was aged between eight and 15 years' old, the appellant regularly sexually abused her, typically at their then family home while the complainant's mother, Mrs J, was at work or asleep.

The appellant appeals his conviction on six grounds, including, inter alia, that the trial Judge's directions were inadequate, that the trial Judge erred in admitting evidence of discreditable conduct and initial complaint and that the verdict was unreasonable.

Held, per the Court, granting permission to appeal and dismissing the appeal:

1.   The trial Judge appropriately directed the jury as to attempted unlawful sexual intercourse (particulars (f) and (h) on the Information). The question of merger does not arise on the facts of this case.

2. Evidence that the appellant licked the armpits of the complainant while on a family trip to Cuba was properly admitted as discreditable conduct evidence pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA).

3. The complainant's evidence of disclosing to a friend, M, that the appellant "touches [her]" was correctly admitted as initial complaint evidence pursuant to s 34M of the Act. The trial Judge's directions in relation to this evidence were appropriate.

4.   The trial Judge's directions in relation to the requisite burden of proof were appropriate.

5.   It was reasonably open to the jury on the complainant's evidence to find the charge proved beyond reasonable doubt.

Evidence Act 1929 (SA) s 34P(2); s 34M, referred to.
Boyle (a pseudonym) v The Queen [2022] SASCA 50; De Silva v The Queen (2019) 268 CLR 57; DES v The Queen [2020] SASCFC 32; Liberato v The Queen (1985) 159 CLR 507; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Murray v The Queen (2002) 211 CLR 193; Pell v The Queen [2020] HCA 12; R v Anderson [2017] SASCFC 125; R v Garner; R v Webb [2021] SASCA 68; R v Landmeter [2015] SASCFC 3; R v Lavery (2013) 116 SASR 242; R v Rippey; Rippey v The King [2022] SASCA 141; R v Usher [2014] SASCFC…

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Fragos v The King [2023] SASCA 6
Case
[2023] SASCA 6
Decision Date

CaseChat Overview and Summary

In the case of Fragos v The King, the appellant appealed his conviction on multiple grounds, focusing on alleged errors in the trial judge’s directions to the jury, the admission of evidence, and the overall reasonableness of the verdict. The appellant was convicted based on his stepdaughter’s allegations of long-term sexual abuse, which began when she was eight or nine years old and continued into her teenage years. The court had to determine whether the trial judge erred in several respects, including in directing the jury about the nature of the offence and the evidence presented.

The primary legal issues addressed by the court involved the correctness of the trial judge’s instructions to the jury, the admissibility of certain evidence, and whether the jury’s verdict was unreasonable or unsupported by the evidence. The appellant argued that the trial judge misdirected the jury by suggesting that certain acts were attempts at sexual intercourse, and that the judge should have provided more explicit guidance on the requisite burden of proof. Additionally, the appellant contended that the evidence of an initial complaint was improperly admitted and that the verdict was unreasonable. The court had to carefully examine the trial judge’s directions, the nature of the evidence, and the overall reasoning of the jury in light of the legal principles governing such matters.

The court found that the trial judge's directions to the jury were accurate and appropriate. The judge clearly defined the elements of the offence of attempted sexual intercourse and provided orthodox directions on the concept of attempt, ensuring that the jury understood the distinction between preparatory acts and those sufficiently proximate to the offence. The court held that the trial judge did not err in admitting evidence of the initial complaint, as it was probative of the consistency of the complainant’s conduct and the timing of the allegation. The court also concluded that the jury’s verdict was reasonable and supported by the evidence, taking into account the nature and duration of the abuse, the complainant’s detailed and consistent account, and the appellant’s actions. The appeal was therefore dismissed, affirming the conviction.

The court did not find any merit in the appellant’s grounds of appeal and upheld the conviction. The trial judge’s handling of the case, including the directions to the jury and the admission of evidence, was deemed to be within the bounds of legal propriety. The jury's verdict, after thorough consideration of all the evidence, was found to be reasonable and justified. Consequently, the appeal was dismissed, and the appellant’s conviction was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals his conviction on six grounds, including, inter alia, that the trial Judge erred in directing the jury that the complainant’s evidence was capable of proving the attempted unlawful sexual acts particularised and in admitting evidence of discreditable conduct and initial complaint, that the trial Judge’s directions as to the requisite burden of proof were inadequate and that the verdict was unreasonable or could not have been supported by the evidence.Background The complainant is the appellant’s stepdaughter. She was born in November 2003 and was aged between eight and 15 during the period of the alleged offending. The offending was alleged to have taken place at the then family home and on a few occasions, overseas. The house was a multi-level property. The complainant had a bedroom and bathroom on the downstairs level. There was also an office downstairs with a bed in it. The master bedroom was upstairs. The complainant alleged that sexual activity occurred in the downstairs bathroom, her bedroom, the office and the master bedroom. The sexual abuse commenced after the complainant, her mother and the appellant returned from a trip to Cuba in June 2012. However, the complainant gave evidence of an incident that occurred while on the Cuba trip, whereby the appellant licked her armpits whilst tucking her into bed. Subsequent to the Cuba trip, the complainant recalled that the appellant licked her vagina as they were having a bath at their home. The complainant was eight or nine years’ old. From that point, the sexual abuse escalated into what the complainant referred to in evidence as regular “itching”; a term used by her and the appellant to denote the appellant “scratching [her] vagina”, the “scratching” involved “him licking [her] vagina”. The appellant would ask; “Are you itchy”, or the complainant would say; “I’m itchy” and the appellant would “proceed to lick [the complainant’s] vagina”. The appellant then showed her how to masturbate him and perform oral sex on him. The appellant and the complainant would then “itch” each other on a regular basis, that is, they would perform oral sex on each other. The complainant stated that the sexual activity would occur before her mother, Mrs J, came home from work, when Mrs J was out on weekends, and when the complainant’s mother was home but asleep. There were also uncharged acts of sexual abuse which occurred on a subsequent overseas trip to Cuba and the USA in 2018. The appellant introduced the complainant to pornography and it became a part of the sexual abuse: the complainant would watch pornography while the appellant performed cunnilingus on her and the appellant would watch pornography while the complainant performed fellatio on him. The appellant attempted to insert his finger into the complainant’s vagina on multiple occasions but stopped each time as the complainant protested that it hurt and asked him to stop. Similarly, the appellant tried to insert his penis into her vagina but stopped each time the complainant protested. There was an occasion where the appellant inserted his finger into her anus and she reciprocated by inserting her finger into his anus.

Evidence

Evidence Before The Court

In R v Landmeter, Vanstone and Bampton JJ observed:[4]... We reiterate the view expressed in R v A, GP (2012) 113 SASR 146 by Vanstone J that evidence of the fact of a complaint about an alleged sexual offence answers the description of an initial complaint and is admissible, even where it is not accompanied by a description of the offending conduct. That is so, provided the evidence is capable of being probative in terms of the purposes set out in s 34M(4)(a)(i) or (a)(ii), that is, to inform the jury as to how the allegation first came to light or as evidence of the consistency of conduct of the alleged victim.(emphasis added)[4] [2015] SASCFC 3 at [12]. These authorities, and several others, were recently reviewed in some detail by this Court in R v Rippey.[5] Thus, it may not be necessary for the complaint to be accompanied by or include a description of the offending, provided that, on the relevant facts, the complaint can be understood as being referable to the conduct charged. In the context of the particular case, it must be evidence capable of demonstrating consistency of conduct and informing the jury of how the allegation first came to light.[5] R v Rippey; Rippey v The King [2022] SASCA 141 at [113]–[117] (per Livesey P, Doyle JA, and Buss AJA). We do not accept that the complainant’s evidence of her conversation with her friend M is too general to be admissible pursuant to s 34M of the Act. We reject the appellant’s submission that the description that the appellant “touches me” does not embrace the conduct the subject of the charge. In context, the allegation that her stepfather was ‘touching her’ was clearly referable to the alleged sexual abuse and was capable of demonstrating consistency of conduct. It also informed the jury of when the allegation first came to light. The evidence was properly admitted. The appellant submitted that, assuming the evidence was admissible as initial complaint, the trial Judge should have directed the jury that the evidence was only capable of demonstrating consistency of conduct in relation to those particulars involving ‘touching’ in the ordinary sense of the word. We reject that submission. There is no warrant in s 34M to limit the complaint evidence in such a manner. To the extent that there was any room for the jury to take the view that the terms in which the complaint was made did not correspond with some aspects of the charged offending, this was appropriately addressed through the trial Judge’s orthodox directions in relation to consistency. As required by the authorities,[6] those directions addressed the need for the jury to consider the degree of consistency of the complainant’s conduct both in making the complaint when, and in the circumstances that, one might expect, and the degree of consistency between the terms of the complaint and the complainant’s evidence of the offending. [6] Recently summarised by this Court in Weragoda v The Queen [2021] SASCA 123 at [55]–[59] (per Doyle JA, David JA and Stanley AJA).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

During the summing up, the trial Judge directed the jury on the definition of “sexual intercourse”, including that there would be an act of sexual intercourse “if there’s been any penetration of the vagina or the labia majora, however, if no penetration occurs then the offence of attempted unlawful sexual intercourse must be considered.” The trial Judge then directed the jury on the question of attempt in the following terms:It is a crime to attempt to commit a criminal offence. A criminal attempt is committed if it is proved that the accused had, at all material times, the guilty intent to commit the specified crime and it is proved that at the same time he had that guilty intent, that is the intent to commit the particular crime, he did an act or acts which are sufficiently proximate or connected to the intended commission of the specified crime and not merely preparatory or in the lead-up. So to put that into context, to be guilty of attempted unlawful sexual intercourse the prosecution has to prove that an accused intended to have sexual intercourse with a person under the age of 17 and did an act that is sufficiently proximate to the act of sexual intercourse and not merely a preparatory step.So in this case, what the prosecution alleges is that the attempt to insert a finger or penis into the complainant’s vagina at a time when she was under the age of 17 was something that was done with the intention of performing the act of sexual intercourse and was sufficiently proximate to that so as to constitute an attempt. The appellant did not criticise these orthodox directions. The trial Judge returned to the topic of attempt when dealing with the evidence of the complainant. Having discussed the complainant’s evidence on this topic, the trial Judge directed:If you are satisfied beyond reasonable doubt that [the appellant] attempted to insert his finger or penis into [the complainant’s] vagina when she was under 17 and that when he performed that particular act he was intending to perform an act of sexual intercourse and that what he did was sufficiently proximate to that act of sexual intercourse, which is penile-vaginal sexual intercourse or digital penetration, then you would be satisfied that he committed the unlawful sexual act of an attempt to commit the offence of unlawful sexual intercourse. Again, no criticism was made of the trial Judge’s directions which were consistent with what the appellant’s counsel at trial requested. The trial Judge at no stage suggested to the jury that the attempted offence would be proved if the jury were satisfied that penetration had in fact been achieved. Counsel at trial, understandably, made no application to have the issue withdrawn from the jury as there was evidence on which the jury could be satisfied that the offence of attempt had been committed. The question of merger does not arise on the facts of this case. The trial Judge did not direct the jury that it was open to them to find that the appellant simply “went further” than an attempt and that therefore they could convict on that basis.