H, SA v Police

Case [2013] SASCFC 86

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Youth Court Appeal)

H, SA v POLICE

[2013] SASCFC 86

Judgment of The Full Court

(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)

16 August 2013

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - VOLUNTARINESS - PARTICULAR CASES

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - PERSON IN AUTHORITY

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - DISCRETION TO EXCLUDE CONFESSIONAL STATEMENTS

CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN

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

The appellant was convicted by a Judge of the Youth Court of four counts of unlawful sexual intercourse. The Crown case was that the appellant, who was then aged 14, performed cunnilingus on his step-sister, who was then aged 5, on four occasions. The appellant appeals on the grounds that:

1. the Judge erred in admitting evidence of a confession by the appellant to police because the confession was not made voluntarily or, alternatively, because it should have been excluded in exercise of the Judge’s discretion;

2. the Judge erred in admitting evidence of an interview of the complainant by a psychologist under section 34CA of the Evidence Act 1929 (SA); and

3. the convictions on all counts were unsafe and unsatisfactory.

Held by the Court (allowing the appeal):

1. Per Blue J, Nicholson J agreeing: The appellant made the confession in circumstances in which his will was overborne by duress, intimidation, persistent importunity and sustained and undue pressure. The confession was therefore involuntary and inadmissible (at [110]-[115]).

Per Kelly J (contra): The circumstances in which the appellant made admissions to the police do not bring the confession within the reach of “basal involuntariness” (at [38]).

2. Per Kelly J: The appellant’s confession was not induced by any threats or promises from any person in authority. The confession was therefore voluntary (at [33]).

Per Blue J, Nicholson J agreeing: It is unnecessary to decide whether the appellant’s confession was not voluntary as being induced by threats or promises in the presence of a person in authority (at [117]-[118]).

3. The record of interview of the appellant should be excluded in the exercise of the Court’s discretion (at [51] per Kelly J, Blue and Nicholson JJ agreeing).

4. The trial Judge did not err in admitting evidence of the complainant’s interview pursuant to section 34CA of the Evidence Act 1929 (SA) because the defendant’s counsel conceded the pre-requisites and did not require the attendance of the complainant to be cross-examined (at [158]-[169] per Blue J, Kelly and Nicholson JJ agreeing).

5. The verdicts were not unsafe or unsatisfactory (at [59] per Kelly J, at [172] per Blue J, Nicholson J agreeing).

6. Conviction set aside. Matter remitted for trial (at [61], [172], [179]).

Evidence Act 1929

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H, SA v Police [2013] SASCFC 86
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[2013] SASCFC 86
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CaseChat Overview and Summary

The appellant, H, SA, was convicted by a Judge of the Youth Court of four counts of unlawful sexual intercourse. The appellant appealed against these convictions on several grounds, including that the trial judge erred in admitting evidence of a confession made by the appellant to the police, and that the convictions were unreasonable and unsupported by the evidence due to inconsistencies between the complainant's account and the appellant's admissions.

The legal issues before the court were whether the appellant's confession to the police was voluntary and, if so, whether it should have been excluded in the exercise of the judge's discretion. The court also considered whether the trial judge erred in admitting the complainant's interview with a psychologist under section 34CA of the Evidence Act 1929 (SA), and whether the convictions were unsafe and unsatisfactory given the alleged inconsistencies in the evidence.

The Full Court of the Supreme Court of South Australia allowed the appeal, quashed the convictions, and remitted the matter for a retrial before a different judge. The court found that while the complainant's evidence and the appellant's admissions could support guilty verdicts, it could not be said that convictions would inevitably have followed without those admissions. Furthermore, the court raised a significant question as to whether the concessions made by the appellant's counsel at trial could have justified the admission of the complainant's out-of-court statement under section 34CA of the Evidence Act.

Orders

Orders of the court

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Background

Background to the litigation

Finally, in support of the ground that the convictions were unsafe and unsatisfactory, the appellant contended that the Judge relied on both the account given by the complainant in the forensic interview and the admissions made by the appellant in his record of interview when the two versions were inconsistent and irreconcilable.Background The charges relate to four separate incidents at two different locations. Counts 2, 4 and 6 on the information were alleged to have occurred at Prospect between 30 April 2010 and 1 October 2010. Count 8 was alleged to have occurred in Enfield[2] between 1 April 2011 and 15 April 2011. The prosecution opened the case by particularising the counts as follows:In relation to count 1 … She states that she was in [H]’s bed when [H] pulled her pants down, licked her bottom and told her not to tell anyone. She said it felt slippery and was inside my front bottom. Count 2, [H] pulled her pants down when she was on [H]’s bed, licked her bottom and told her not to tell anyone. They were living in Prospect and she was wearing a pink dress with rainbows on it. Count 3, Enfield; her pants were pulled down by [H] and again her bottom was licked and then in relation to count 4, [H] pulled her knickers and then licked her bottom. They were living in the new house, it happened in the bed in [H]’s room under a blanket so adults couldn’t see. She was also kissed on the lips and she was told not to tell mum and dad. While this was happening the mother came in and caught [H] and then got cross.[2] The information refers to Enfield, but the trial was conducted on the basis that this was a reference to a house at Clearview. The prosecution alleged, and the Judge found, that the complainant’s interview disclosed four distinct episodes of unlawful sexual intercourse:1an occasion at the “new house” under the blanket in his bed when her mother intervened (count 8 on the information);2an occasion at the “new house” when she was wearing a red dress;3an occasion at the “old house” when she was wearing a pink T-shirt and pants; and4an occasion at the “old house” when she was wearing a pink dress with rainbows on it. The reference in the prosecution opening to counts 1, 2, 3 and 4 was a reference by the prosecutor to counts 2, 4, 6 and 8 on the information. At the time counts 2, 4 and 6 on the information were alleged to have been committed, the appellant was between 14 and 15 years old, while the complainant was five years old. At the time of count 8, the appellant was 15 years old and the complainant was between five and six years old. In late 2007, the appellant’s father commenced a relationship with the complainant’s mother. The appellant’s father and the complainant’s mother lived together, along with the complainant and the appellant’s brother. In May 2010, the appellant began to live with them at a house in Prospect. The family later moved to a house in Clearview. It was not clear on appeal when that move occurred.

Evidence

Evidence Before The Court

The prosecution case was that the defendant performed cunnilingus on the complainant on four occasions:1.in 2010 at a house at Prospect at which the defendant and complainant were both living, on an occasion on which the complainant was wearing a pink t-shirt and jeans; 2.in 2010 at Prospect on an occasion on which the complainant was wearing a pink dress with rainbows on it;3.in 2010 at a house at Clearview[14] at which the defendant and complainant were both living;4.in April 2011 at Clearview[15] on an occasion on which the complainant’s mother came into the room and disturbed them.[14] The Information alleged that the third occasion occurred at the Prospect house and not the Clearview house.[15] The Information alleged that the fourth occasion occurred at Enfield but the case was conducted on the basis that this was a reference to Clearview.The evidence The prosecution evidence principally comprised a record of interview of the complainant by a psychologist on 26 May 2011 which was tendered and received pursuant to section 34CA of the Evidence Act and a record of interview of the defendant by the police on 10 June 2011. In addition, the complainant’s mother gave evidence that around Easter 2011 she entered the defendant’s bedroom and saw both the defendant and the complainant under the covers of the bed. The complainant’s mother and grandmother also gave evidence of complaints under section 34M of the Evidence Act. While the defendant gave evidence on the voir dire, he did not give evidence at the trial itself.Background The defendant was born in September 1995. The complainant was born in April 2005. In late 2007, the complainant’s mother commenced a relationship with the defendant’s father. They came to live together at the house at Prospect with the complainant and the defendant’s half-brother (another of his father’s sons). In about May 2010, the defendant moved into the Prospect house to live with his father. He was then 14 years old. He had only learnt the identity of his true father when he was 11 and first met his father when he was 12. He lived with his mother in Victoria with very limited contact with his father until May 2010. In late 2010 or early 2011, the combined family moved from Prospect to Clearview. Around Easter 2011, the complainant’s mother saw the defendant and complainant in bed in the defendant’s bedroom. After that incident, the defendant’s father’s relationship with the complainant’s mother ended and his father moved interstate. The defendant was placed in foster care. His father ceased contact with him. His mother was still living in Victoria and did not have contact with him. On 26 May 2011, the complainant was interviewed by a psychologist and an audio visual record was made on a DVD. At about the same time, the defendant’s father moved him from the first foster carer to the foster care of Mr Kaplanis, who had been a next door neighbour when the combined family lived at Prospect. Mr Kaplanis lived in that house with his children. Mr Kaplanis had discussions with the defendant concerning the complainant’s allegations before 10 June 2011.The interview of the defendant

Decision

Reasons for decision

KELLY J NICHOLSON J
Upon the whole of the evidence I consider it was open to the Judge to be satisfied beyond reasonable doubt that the appellant was guilty of each of the four counts. Conclusion Even though the evidence from the complainant and the complainant’s mother was capable of supporting the verdicts of guilty, it could not be said in all of the circumstances that, absent the admissions made by the appellant, convictions would inevitably have followed. Moreover, there is a real question whether the concessions made by counsel for the appellant at trial could have justified the admission of the out of court statement of the complainant pursuant to s 34CA of the Evidence Act. It is for these reasons that I consider that the appeal should be allowed, the conviction quashed and the matter remitted for trial before a different judge. BLUE J: The appellant/defendant, H, S, was convicted by a Judge of the Youth Court of four counts of unlawful sexual intercourse.[13][13] Criminal Law Consolidation Act 1935 (SA) s 49. The defendant appeals against the convictions on essentially three grounds:1.the trial Judge erred in admitting evidence of a confession by the defendant to the police because it was not voluntary (ground 1) or it should have been excluded in the exercise of the Judge’s discretion (ground 3);2.the Judge erred in admitting evidence of an interview of the complainant by a psychologist under section 34CA of the Evidence Act 1929 (SA) (“the Evidence Act”) (ground 2);3.the convictions were unreasonable and cannot be supported having regard to the evidence because, in relation to the third count, the complainant’s complaint and the defendant’s confession were inconsistent and irreconcilable (ground 4).The prosecution case The prosecution case was that the defendant performed cunnilingus on the complainant on four occasions:1.in 2010 at a house at Prospect at which the defendant and complainant were both living, on an occasion on which the complainant was wearing a pink t-shirt and jeans; 2.in 2010 at Prospect on an occasion on which the complainant was wearing a pink dress with rainbows on it;3.in 2010 at a house at Clearview[14] at which the defendant and complainant were both living;4.in April 2011 at Clearview[15] on an occasion on which the complainant’s mother came into the room and disturbed them.[14] The Information alleged that the third occasion occurred at the Prospect house and not the Clearview house.[15] The Information alleged that the fourth occasion occurred at Enfield but the case was conducted on the basis that this was a reference to Clearview.The evidence The prosecution evidence principally comprised a record of interview of the complainant by a psychologist on 26 May 2011 which was tendered and received pursuant to section 34CA of the Evidence Act and a record of interview of the defendant by the police on 10 June 2011. In addition, the complainant’s mother gave evidence that around Easter 2011 she entered the defendant’s bedroom and saw both the defendant and the complainant under the covers of the bed. The complainant’s mother and grandmother also gave evidence of complaints under section 34M of the Evidence Act.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J, NICHOLSON J

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