Heathcote v The King

Case [2023] SASCA 68

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

HEATHCOTE v THE KING

[2023] SASCA 68

Judgment of the Court of Appeal  

(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Auxiliary Justice Mazza)

15 June 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

Appeal against conviction.

On 1 March 2022, a jury convicted the appellant of two counts of aggravated indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). The complainant was, at all relevant times, a child under the age of 14 years.

At the time of the alleged offences, the appellant was sharing a two storey townhouse in an Adelaide suburb. The appellant occupied one bedroom, his brother, K, occupied another, and the third bedroom was shared by a man, SW, and his then 11 year old son, IW.  The complainant and her older sister, A, were friends with IW. The appellant, having regularly visited their house, already knew both the complainant and A.

On 18 April 2020, the complainant and A had a playdate with IW, at the townhouse.  Although unplanned, the complainant and A ended up sleeping over. The complainant slept in the appellant’s bed.  A slept in IW’s room. The prosecution alleged that the appellant left the townhouse late on the evening of 18 April 2020. The complainant was using a laptop computer belonging to the appellant on his bed, where she fell asleep. The appellant returned to the townhouse in the early morning of 19 April 2020 and went to his bedroom, at which point the complainant woke up. She used the bathroom and then went back to sleep. According to the complainant, the appellant came back to the bedroom a couple of hours later. He then touched her chest (Count 1) and inside and outside her vagina (Count 2). The prosecution case, based on the complainant’s account of events, was that the appellant touched the complainant five or six times in the region of her chest, and about three or four times on the inside of her vagina.  According to the complainant, she told the appellant to stop what he was doing to her. Eventually, she fell asleep again.

On the morning of 19 April 2020, the complainant awoke and, after climbing over the appellant who was asleep, she telephoned her paternal grandmother, MH and sent her a series of texts to the effect that the appellant ‘touched’ her. MH contacted her mother, the complainant’s great grandmother, PO.  Later that day, the complainant accompanied PO to her (PO’s) home, where she told PO that the appellant had touched her breasts and between her legs. The matter was reported to police. On 8 May…

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Heathcote v The King [2023] SASCA 68
Case
[2023] SASCA 68
Decision Date

CaseChat Overview and Summary

The appeal before the Full Court of the Supreme Court of South Australia, constituted by Bleby and David JJ and Mazza AJ, concerned a criminal conviction. The appellant, Heathcote, had been found guilty of certain offences. The central dispute revolved around alleged misdirections or non-directions by the trial judge and whether the verdict was unreasonable or insupportable having regard to the evidence.

The legal issues before the Full Court included whether the trial judge had erred in failing to direct the jury regarding the absence of cross-examination of the complainant, and whether the verdict was unreasonable or insupportable given the evidence. The Court also considered grounds relating to directions concerning a medical examination.

The Court addressed the issue of the complainant not being cross-examined by noting that this was a deliberate forensic strategy adopted by the appellant's experienced trial counsel, who chose to highlight inconsistencies in the complainant's evidence rather than confront her directly. The appellant's counsel on appeal confirmed this strategy and did not argue that it was objectively unreasonable or that the appellant had suffered a miscarriage of justice as a result. The Court also considered the complainant's evidence regarding pain and injury, noting inconsistencies in her statements during an interview.

Ultimately, the Full Court granted permission to appeal in respect of certain grounds but found that none of the grounds of appeal had been made out. Accordingly, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

This evidence will be referred to in greater detail in dealing with Ground 4.The evidence of the complainant, A and IW was not the subject of cross‑examination Unusually, the three child witnesses, being the complainant, A, and IW, were not subjected to cross‑examination. The appellant’s very experienced trial counsel made no application to cross‑examine these witnesses, either at a special hearing on 28 June 2021 or at trial. Defence counsel informed the trial judge:[11]I’m not instructed to make any application to cross‑examine any of the three child witnesses.[11] T 11. The trial judge described this as ‘rather surprising’.[12] It is clear from defence counsel’s subsequent exchange with the trial judge, and his closing address, that defence counsel adopted, as a deliberate forensic strategy, an approach of impugning the credibility of the complainant by highlighting the ‘very significant inconsistencies in her evidence … both to identity and the actual acts themselves’, rather than by seeking to confront the complainant in cross-examination with the alleged inconsistencies.[13] [12] T 11.[13] T 13. During the hearing of this appeal, counsel for the appellant (who was not trial counsel) eschewed any point that the appellant had suffered a miscarriage of justice as a result of the failure by defence counsel to cross‑examine the complainant, and confirmed that the failure was a deliberate forensic decision by defence counsel.[14] It was not argued that the forensic decision was objectively unreasonable or that there was no valid reason for failing to cross-examine the appellant.[15] None of the grounds of appeal suggest that the appellant has suffered any miscarriage of justice as a result of the failure, which importantly appears to be consistent with the appellant’s instructions to his counsel. Further, we note that particular (a) of Ground 2, which originally alleged that the learned trial judge erred by failing to direct the jury regarding the absence of cross‑examination of the complainant, was abandoned.[14] Appeal T 5 - 6.[15] See TKWJ v The Queen (2002) 212 CLR 124 [74] - [85] (McHugh J).Ground 1 - directions regarding medical examination The relevant background to Ground 1 is as follows. Between 19 April 2020 and 8 May 2020, the complainant lived with, and was in the care of, her great‑grandmother, PO. On 8 May 2020, the complainant participated in the s 13BA interview, during which she said, in respect of Count 2, that the appellant inserted three or four fingers inside her ‘parts’.[16] The complainant also said that when the appellant touched her ‘parts’, she did not really feel any pain and that she sustained no injury.[17] Later in the interview, the complainant said that she did not remember feeling any pain. The interviewer asked her, ‘how far did the hand go when he was on your private?’, to which the complainant responded, ‘[p]retty far’. The interviewer asked, ‘did the hand go, um, inside you?’, to which the complainant said, ‘not really’.[18][16] Complainant’s interview, AB 95, lines 418 - 419.[17] Complainant’s interview, AB 81, lines 149 - 152.[18] Complainant’s interview, AB 91, lines 347 - 354.

Decision

Reasons for decision

For these reasons, while we give permission to appeal in respect of Ground 4, the ground has not been made out.Conclusion and orders None of the grounds of appeal have been made out. Accordingly, the appeal must be dismissed. The orders that we make are as follows:(1)Permission to appeal is granted on Grounds 2, 3 and 4.(2)Permission to appeal on Ground 1 is refused.(3)The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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