MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
The appellant and complainant were in a relationship during which they shared sexually explicit images with each other. The appellant also shared sexually explicit images with a subsequent sexual partner, E. Once the appellant’s relationship with E ended, E informed the complainant the appellant had shared images of the complainant with E.
On 20 December 2021, the appellant was found guilty of four counts of distributing an invasive image of another person knowing, or having reason to believe, that the other person did not consent to that particular distribution of the image contrary to s 26C(1) of the Summary Offences Act 1953 (SA).
The appellant appeals against his conviction on grounds that the Magistrate’s reasons were not adequate, the Magistrate reversed the onus of proof and, in all of the circumstances, the finding of guilt is unsafe and unsatisfactory.
[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
Goring v Police [2022] SASC 93
Case
[2022] SASC 93
Decision Date
CaseChat Overview and Summary
The case of Goring v Police involved the appellant appealing against his conviction for non-consensual sharing of intimate images with intent to cause distress, contrary to section 229(1) of the Criminal Law Consolidation Act 1935 (SA). The appeal was heard in the Supreme Court of South Australia. The primary contention was whether the Magistrate erred in finding that the complainant had consented to the sharing of the images, given the explicit communications between the complainant and the appellant.
The court had to determine whether the Magistrate erred in concluding that the complainant had consented to the sharing of the intimate images, despite the explicit conditions set by the complainant regarding the privacy and exclusivity of the content. The appeal also examined whether the Magistrate's failure to provide detailed reasons for his decision constituted an error of law. Furthermore, the court needed to consider whether the evidence was sufficient to support the Magistrate's findings.
The Supreme Court found that the Magistrate was entitled to consider the complainant's messages, which contained conditions regarding the privacy of the shared content. The messages supported the Magistrate's inference that the complainant had, in fact, consented to the sharing of the images, albeit with specific conditions. The documentary evidence aligned with the complainant's testimony, and the conclusions drawn by the Magistrate were neither improbable nor inconsistent with the overall evidence presented. The court held that the Magistrate's decision was adequately supported by the evidence, and the appeal was dismissed.
In conclusion, the Supreme Court upheld the decision of the Magistrate, dismissing the appeal and affirming the appellant's conviction. The court found no error in the Magistrate's assessment of the evidence and reasoned that the appeal grounds were without merit.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
I set out a summary of the evidence below. Complainant’s evidence The complainant gave evidence that she met the appellant in around 2017 or 2018 through running events and was a Facebook friend of the appellant. The complainant had two Facebook accounts, a personal page and a professional page using a stage name, to keep her personal and professional life (as an exotic dancer) separate and maintain privacy. The complainant inadvertently disclosed her profession in a post published to her personal Facebook page. She said this prompted interest from the appellant who starting flirting with her in July 2019. The complainant wished to ensure the appellant’s interest in her was genuine and not a result of what he might think were characteristics attributable to her profession. On 15 August 2019, she determined there was genuine interest in her and, on 7 September 2019, a sexual relationship commenced. The complainant gave evidence that, in late July 2019, the appellant shared with her explicit images of him, and images depicting him engaging in sexual activity with other women. He did so after asking the complainant if he could send these to her, to which she agreed after asking whether the women depicted had consented to the sharing of the images.[1] In response, the complainant sent to the appellant lingerie type promotional photographs taken for her work. The complainant gave evidence she told the appellant she was trusting him not to share those photos[2] and she made it clear to him that she did not want them shared.[3] The complainant sent to the appellant a couple of explicit photographs of her. The complainant stated she was aware that the appellant also took photographs whilst they engaged in sexual relations. [1] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T48.14-21.[2] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T47.28-29. [3] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T49.7-8. At trial, the complainant gave evidence about conditions she placed on the appellant when she provided photographs of her to him. The complainant gave oral evidence as follows:[4]…I made it clear to him, I said no matter what happens between us these images – no matter what happens between us, what we are sharing, whether our messages or our photos, should not be shared with others or shown to others. He agreed. I referenced a few other times that I was building trust, so I would send the photo and say that I have racier ones but I’m building trust, meaning I’m building trust that you won’t share them and I believe I said that a few times.[4] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T51.1-10. The complainant was shown messages between her and the appellant. She gave evidence of sending the following message (Exhibit P3) to the appellant via Facebook on 22 August 2019:[5]…Taking a step back for a second, we on the same page right, that no matter what happens between us our conversations and photos stay between us. No-one else gets told about it.[5] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T51.37 - T52.2; tendered as Exhibit P3.
Decision
Reasons for decision
The Magistrate was entitled to have regard to the evidence of E and the complainant in the context of all of the evidence, including the documentary evidence. In the case of the complainant, that included the messages between the complainant and appellant relating to permissions to share. Those messages gave rise to inferences which supported the Magistrate’s conclusions. I do not consider the Magistrate reached conclusions that were glaringly improbable or contrary to other compelling inferences. I do not consider there was evidence which was inconsistent with other incontrovertible facts or uncontested testimony. Rather, as I have set out above, the documentary evidence supported evidence given by the complainant. Conclusion For the reasons above, each of the appellant’s grounds of appeal fail. Orders1.I dismiss the appeal.