Godden v The Queen - [2021] SASCA 102

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
GODDEN v THE QUEEN
[2021] SASCA 102
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Doyle)
27 September 2021
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Appeal against conviction.
After a trial by jury, the appellant was convicted of maintaining an unlawful sexual relationship with his niece in law. The sexual acts occurred on approximately four occasions between June 2017 and September 2018, when the complainant was 10 or 11 years old. Three of the acts occurred at the appellant’s house when the complainant was being looked after by the appellant’s wife during the school holidays and one of the acts occurred during a family visit to the beach.
The prosecution case included evidence from the complainant, her mother and a complaint witness, who was a school friend of the complainant. The appellant’s mother gave evidence that around the time of the offending, the complainant became reluctant to attend the appellant’s house and told her that she did not want to go there. The prosecution submitted that the complainant started to avoid the appellant as a way of managing the situation she found herself in.
The defence case was that there was no opportunity for the offending. Related to this, the appellant gave evidence during cross-examination of a ‘policy’ that existed between him and his wife that he would not be alone with a family member. The appellant and his wife gave evidence that the policy was instigated because they did not trust the complainant. The real reason for the policy, which was not disclosed to the jury, related to earlier allegations against the appellant.
The appellant appeals against his conviction on the following grounds:
1. The trial Judge erred in his directions as to the evidence of complaint and the conduct of the complainant after and around the time of the alleged offending, including her conduct in the absence of the appellant.
4. The fair trial of the appellant miscarried due to the appellant’s evidence that he did not seek to spend time alone with the complainant and the prosecution address in relation to that evidence.
5. The fair trial of the appellant miscarried due to the procedural unfairness surrounding the manner in which questions from the jury were divulged to counsel and dealt with by the trial Judge.
6. The trial Judge erred in failing to adequately present the defence case.
7. The verdict is unsafe, unreasonable and against the weight of the evidence.
Held per Kelly P and Lovell JA (Doyle JA agreeing),…

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 Godden v The Queen

Details

AGLC: Godden v The Queen [2021] SASCA 102
Case: [2021] SASCA 102
Decision Date: 27 September 2021

CaseChat Overview and Summary

The appellant, Godden, was convicted by a jury of maintaining an unlawful sexual relationship with his niece in law, who was between 10 and 11 years old at the time of the offending. The alleged sexual acts occurred on approximately four occasions between June 2017 and September 2018. The appeal concerned several grounds, including alleged errors in the trial judge's directions regarding the evidence of complaint and the complainant's subsequent conduct, the fairness of the trial due to the appellant's evidence about a "policy" and the prosecution's address on that evidence, procedural unfairness in the handling of jury questions, and the adequacy of the presentation of the defence case. The appellant also argued that the verdict was unsafe, unreasonable, and against the weight of the evidence.

The central legal issues before the appellate court were whether the trial judge had adequately directed the jury on the use of the complainant's evidence of complaint and her subsequent conduct, and whether the defence case had been presented fairly. The court also considered whether the appellant had suffered prejudice by not being able to disclose the true reason for a policy he claimed to have with his wife regarding not being alone with the complainant, and whether the jury's questions had been handled in a way that led to a miscarriage of justice. Finally, the court had to determine if, despite any alleged flaws in the evidence, the jury was still plainly entitled to convict the appellant.

The Court of Appeal, comprising Kelly P and Lovell JA with Doyle JA agreeing, granted permission to appeal on all grounds but ultimately dismissed the appeal. The court found that the trial judge's directions regarding the evidence of complaint and the complainant's conduct were adequate, and that evidence of her reluctance to attend the appellant's house was properly admitted to explain the cessation of offending, without being used for an impermissible purpose. The court held that the appellant suffered no prejudice from not revealing the real reason for his policy, and that the handling of jury questions did not lead to a miscarriage of justice. Furthermore, the court determined that the trial judge's directions on the defence case were sufficient, and that even with potential flaws in the complainant's evidence, the jury was entitled to reach its verdict.

Orders

Orders of the court

Appeal against conviction.

After a trial by jury, the appellant was convicted of maintaining an unlawful sexual relationship with his niece in law. The sexual acts occurred on approximately four occasions between June 2017 and September 2018, when the complainant was 10 or 11 years old. Three of the acts occurred at the appellant’s house when the complainant was being looked after by the appellant’s wife during the school holidays and one of the acts occurred during a family visit to the beach.

The prosecution case included evidence from the complainant, her mother and a complaint witness, who was a school friend of the complainant. The appellant’s mother gave evidence that around the time of the offending, the complainant became reluctant to attend the appellant’s house and told her that she did not want to go there. The prosecution submitted that the complainant started to avoid the appellant as a way of managing the situation she found herself in.

The defence case was that there was no opportunity for the offending. Related to this, the appellant gave evidence during cross-examination of a ‘policy’ that existed between him and his wife that he would not be alone with a family member. The appellant and his wife gave evidence that the policy was instigated because they did not trust the complainant. The real reason for the policy, which was not disclosed to the jury, related to earlier allegations against the appellant.

The appellant appeals against his conviction on the following grounds:

1. The trial Judge erred in his directions as to the evidence of complaint and the conduct of the complainant after and around the time of the alleged offending, including her conduct in the absence of the appellant.

4. The fair trial of the appellant miscarried due to the appellant’s evidence that he did not seek to spend time alone with the complainant and the prosecution address in relation to that evidence.

5. The fair trial of the appellant miscarried due to the procedural unfairness surrounding the manner in which questions from the jury were divulged to counsel and dealt with by the trial Judge.

6. The trial Judge erred in failing to adequately present the defence case.

7. The verdict is unsafe, unreasonable and against the weight of the evidence.

Held per Kelly P and Lovell JA (Doyle JA agreeing), granting permission to appeal on all grounds and dismissing the appeal:

1. The trial Judge adequately directed the jury about how it could and could not use the evidence of complaint.

2. Evidence as to the complainant’s anxiety and reluctance to attend the appellant’s house after or around the time of the offending was led to explain how and why the offending came to an end. The evidence was not relied on for any improper purpose and the jury could not have used the evidence in an impermissible way.

3. The appellant has not suffered any prejudice by not being able to explain the real reason for the policy.

4. The failure to produce further evidence in response to the jury questions could not have led to a miscarriage of justice.

5. It was not necessary for the trial Judge to direct the members of the jury that, in order to convict the appellant, they needed to reject his wife’s evidence. The Judge’s directions in relation to the defence case were adequate.

6. Notwithstanding the flaws in the complainant’s evidence, it was plainly open to the jury to convict the appellant.

Background

Background to the litigation

For the reasons that follow, we dismiss the appeal. Background Before turning to the grounds of appeal, it is necessary to set out the evidence that was before the jury in respect of both the prosecution and the defence case. The prosecution case The evidence of the complainant consisted of a video interview conducted on 25 September 2018, when she was 11 years old, and the evidence she gave in Court. The complainant was 13 years old at the time she gave evidence in Court on 6 October 2020. The prosecution case was that the offending occurred on four separate occasions between June 2017 and September 2018. Three instances of offending occurred in the appellant’s house and one occasion occurred at Maslin Beach, when two of the appellant’s children went missing. The circumstances of each instance of offending, according to the prosecution, are set out below. Offending at the appellant’s house During the school holidays at the end of 2017 and the beginning of 2018, the complainant’s mother would take the complainant to the appellant’s house each day to be looked after by her aunt, JG, while she was at work. JG was the wife of the appellant and the sister of the complainant’s mother. The appellant and JG lived with their four children. The complainant would get dropped off at the appellant’s house at around 7.00am each day. The complainant’s mother gave evidence that when she dropped off the complainant in the mornings, the appellant would be the only person awake. The complainant stated that she would enter the appellant’s house through the back door as the front door was usually locked. On the prosecution case, the three instances of offending at the appellant’s house occurred during the time between the complainant being dropped off at 7.00am and the appellant leaving for work at around 8.00am each morning. As to the first occasion, the complainant gave evidence that she was sitting on the couch in the lounge room of the appellant’s house playing games on her mobile phone. The appellant sat next to her and pulled her to him. He then touched her on her breasts and vagina, on the outside of her crop top and underwear. The appellant said, ‘Do you like it?’ and ‘Is that okay?’, to which the complainant replied, ‘No, it’s not okay.’ The complainant called out for her cousins before she stood up and the appellant stopped. There is conflicting evidence from the complainant as to the timing of this incident, however it is alleged that it occurred in either February or after April 2018. The second occasion at the appellant’s house was said to have occurred in exactly the same way as the first occasion. The complainant stated in her interview that it occurred on the couch in the lounge room and the touching was the same. She could not say exactly when it happened. The last instance of offending was about four to five months prior to the complainant’s interview in September 2018. The complainant gave evidence that she was sitting on the couch at the appellant’s house one morning when the appellant came up behind her and tickled her. The appellant’s children were asleep. The appellant touched the complainant on the vagina and breast area. The complainant gave evidence that, on this occasion, he touched her underneath her underwear and he rubbed her vagina. She tried to move his hands away and call out for help, however the appellant covered her mouth and grabbed her by the wrist. Offending at Maslin Beach

Evidence

Evidence Before The Court

During cross-examination, the complainant’s mother agreed that towards the end of 2017 and into 2018, the complainant would call and ask to be picked up when she was at other people’s houses. As such, this behaviour did not only occur when she was at the appellant’s house.Complaint evidence The first person that the complainant complained to was a school friend, AC, now known as SS. She stated that one day at school, she told SS, ‘My uncle is touching me in inappropriate ways and I do not like it.’ This conversation was said to have occurred sometime after the first incident but before the last occasion. The complainant gave evidence that she did not feel like she could tell her mother what was happening. SS gave evidence via a recorded interview pursuant to s 13BA of the Evidence Act 1929 (SA) (‘the Evidence Act’). The interview was conducted on 30 September 2020, when SS was aged 13. She gave evidence that the complainant told her that she had been sexually assaulted on more than one occasion by a male family member who physically touched her. On a later occasion, the complainant disclosed to SS that she had been touched in the breast area and ‘downstairs in her private part’. SS stated that she could not remember who inappropriately touched the complainant, but she thought it was an uncle or cousin of the complainant. The evidence of SS was admissible to inform how the allegations came to light. The complaint evidence was also admitted for the purposes of determining consistency on the complainant’s part. Although no complaint evidence was led from the complainant’s mother, as mentioned above, she gave evidence to support the complainant’s claim that she become averse to attending the appellant’s house. The defence case The appellant chose to give evidence. He agreed that the complainant spent time at his house during the school holidays and that he would wake up at 6:30am and leave the house at 8.00am. He stated that he would open the front door for the complainant in the morning. His wife, JG, and their four children would be at home and at least two of his children were ‘early risers’. The main aspect of the defence case was that there was no opportunity for the appellant to touch the complainant sexually. JG gave evidence that she was awake in the mornings when the complainant was dropped off, that the complainant would greet her, and that the complainant came through the front door and sometimes her mother came into the house with her. Both the appellant and JG gave evidence that sound travelled easily throughout the home, that bedroom doors generally remained open and that the couch in the lounge room could be seen from the kitchen. In relation to the alleged incident at Maslin Beach, JG and the appellant gave evidence that it was New Year’s Day 2017 when the children went missing at the beach, not Easter 2018, as stated by the complainant. JG’s evidence was that the complainant did not go with the appellant to look for his children, but rather stayed with the other children at the barbecue site. Similarly, the appellant denied being alone with the complainant at all on this occasion.

Decision

Reasons for decision

We dismiss this ground of appeal.Conclusion For these reasons, we grant permission to appeal on all grounds, but dismiss the appeal. DOYLE JA: I agree with the reasons of Kelly P and Lovell JA, and the orders they have proposed.

Ratio Decidendi

Legal Principle Established

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