Hill v The King

Case [2022] SASCA 114

Supreme Court of South Australia

(Court of Appeal: Criminal)

HILL v THE KING

[2022] SASCA 114

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice David)

3 November 2022

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 - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

Following a trial by jury, the appellant was convicted of the offence of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The alleged offending involved numerous unlawful sexual acts by the appellant touching the complainant on her vagina when she was between seven and nine years old. The appellant denied the offending in a police interview.

The appellant appeals against his conviction on four grounds. The appellant complains that the trial Judge erred; first, by not providing any or adequate reasons for rejecting the appellant’s denials and/or his version of events; second, by accepting that the unlawful sexual acts occurred on nine to 10 occasions; third, in failing to adequately address the issue of prior inconsistent statements made by the complainant; and fourth, in failing to provide adequate reasons for his verdict.

Held, per the Court, granting permission to appeal on all grounds but dismissing the appeal:

1.The trial Judge provided adequate reasons in rejecting the appellant’s denials and version of events.

2.There was no error by the trial Judge in making the impugned finding that the unlawful sexual acts occurred on nine to 10 occasions and, in the circumstances of this case, any alleged error in that regard did not result in a miscarriage of justice.

3.The trial Judge either expressly took each prior inconsistent statement into account or the inconsistency was peripheral and not of any material relevance. None of the inconsistencies, considered singly or in combination, were material to an assessment of the complainant’s credibility and reliability. That being so, a failure by the trial Judge to expressly address some of those matters did not result in a miscarriage of justice.

4.      The reasons for verdict were not inadequate.

Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) ss 12AB, 13BA, referred to.
AK v Western Australia (2008) 232 CLR 438; DL v The Queen (2018) 266 CLR 1; Douglass v The Queen (2012) 86 ALJR 1086; Henry v The Queen [2022] SASCA 60; Murray v The Queen (2002) 211 CLR 193; R v H, JH [2022] SADC 11; R v Keyte (2000) 78 SASR 68; R v M, DV (2019) 133 SASR 470;

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Hill v The King [2022] SASCA 114
Case
[2022] SASCA 114
Decision Date

CaseChat Overview and Summary

The appeal concerned an allegation that the appellant maintained an unlawful sexual relationship with a complainant, KF, who was between seven and nine years old during the period of the alleged offending. The dispute arose from the appellant's conviction for sexual offences, and the appeal was brought before the Court.

The legal issues before the Court included whether there was an error of law in the trial judge's decision, specifically concerning the adequacy of the reasons provided for the decision, and whether there was any interference with the judge's discretion or findings. The Court was also required to consider the grounds of appeal relating to the admission of evidence and the sufficiency of the evidence to support the conviction.

The Court considered the evidence presented, including the complainant's interviews and testimony, as well as evidence regarding familial connections and the timeline of events. The Court ultimately determined that permission to appeal should be granted on Grounds 1 and 4, but the appeal itself was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Permission to appeal was granted on Grounds 2 and 3. The question of permission to appeal with respect to Grounds 1 and 4 was referred to this Court for consideration.Background It was alleged that the appellant maintained an unlawful sexual relationship with the complainant (‘KF’) between 1 January 2019 and 15 January 2020, when she was between seven and nine years old. The offending involved two or more unlawful sexual acts, namely touching KF’s vagina. These acts were alleged to have occurred at her family home in Elizabeth Vale and on a single occasion at the appellant’s home in Salisbury East. The appellant is the de facto partner of KF’s eldest sister (‘JS’). KF made an initial complaint to her second eldest sister (‘RH’) on 15 January 2020. She participated in two prescribed interviews with police:[1] the first on 22 January 2020; and the second on 9 April 2020. Both interviews were tendered at trial.[2] KF also gave unsworn evidence at a pre-trial special hearing on 12 July 2021.[3] [1] This evidence was admitted pursuant to s 13BA of the Evidence Act 1929 (SA).[2] Trial Exhibit MFI P2; Trial Exhibit MFI P4.[3] That hearing was convened pursuant to s 12AB of the Evidence Act 1929 (SA). The prosecution called the complainant’s mother (‘NF’), stepfather, Mr Wayne Lindsay, RH and JS, to adduce evidence as to the various familial connections and the periods of contact between the families. There was also evidence led from RH as to the initial complaint. Evidence of unlawful sexual acts In her first prescribed interview, KF estimated there were about nine to 10 occasions the appellant had touched her, but she conceded it could have been more or less. She said it happened whenever the appellant and JS visited. She said the offending had been happening for a few months and it was ‘too long, too many times he’s done it’.[4] KF said the accused put his fingers down below and sometimes moved his fingers around. She said that sometimes, when he touched her, it hurt. [4] Trial Exhibit MFI P2 at line 714. In both her prescribed interviews, KF described specific occasions of the appellant touching her at various locations in her home, and, on one occasion, at the appellant’s home. In her second prescribed interview, KF elaborated in more detail about the specific occasions of touching she described in her first interview. Those occasions were as follows.Bedroom incidents In her prescribed interviews, KF said that there were three occasions when the appellant touched her in her bedroom. However, in cross-examination at the pre-trial special hearing, she said that there were two. Bedroom incident – Hanging up clothes In her first prescribed interview, KF described an occasion when the appellant touched her on the vagina in her bedroom when she was hanging up her clothes. She said the appellant came into her bedroom and said ‘stop for a minute I want to do it’.[5] She remained silent. He then reached down beneath her underwear and touched her ‘private part’.[6] He touched her ‘in the middle’ with his fingers.[7][5] Trial Exhibit MFI P2 at line 296.[6] Trial Exhibit MFI P2 at line 320.[7] Trial Exhibit MFI P2 at line 330.

Evidence

Evidence Before The Court

The prosecution called the complainant’s mother (‘NF’), stepfather, Mr Wayne Lindsay, RH and JS, to adduce evidence as to the various familial connections and the periods of contact between the families. There was also evidence led from RH as to the initial complaint. Evidence of unlawful sexual acts In her first prescribed interview, KF estimated there were about nine to 10 occasions the appellant had touched her, but she conceded it could have been more or less. She said it happened whenever the appellant and JS visited. She said the offending had been happening for a few months and it was ‘too long, too many times he’s done it’.[4] KF said the accused put his fingers down below and sometimes moved his fingers around. She said that sometimes, when he touched her, it hurt. [4] Trial Exhibit MFI P2 at line 714. In both her prescribed interviews, KF described specific occasions of the appellant touching her at various locations in her home, and, on one occasion, at the appellant’s home. In her second prescribed interview, KF elaborated in more detail about the specific occasions of touching she described in her first interview. Those occasions were as follows.Bedroom incidents In her prescribed interviews, KF said that there were three occasions when the appellant touched her in her bedroom. However, in cross-examination at the pre-trial special hearing, she said that there were two. Bedroom incident – Hanging up clothes In her first prescribed interview, KF described an occasion when the appellant touched her on the vagina in her bedroom when she was hanging up her clothes. She said the appellant came into her bedroom and said ‘stop for a minute I want to do it’.[5] She remained silent. He then reached down beneath her underwear and touched her ‘private part’.[6] He touched her ‘in the middle’ with his fingers.[7][5] Trial Exhibit MFI P2 at line 296.[6] Trial Exhibit MFI P2 at line 320.[7] Trial Exhibit MFI P2 at line 330. In her second prescribed interview, KF again described this same incident and said it occurred six months ago or more when the appellant and JS were visiting. At home was NF, Mr Lindsay, JS, KF’s younger sister (‘LL’), and the appellant’s son (‘KS’). She said the touching occurred when everyone was outside, at the front of the house. She said she was hanging her clothes in her cupboard when the appellant came into her bedroom and asked if he could wiggle his fingers down her private part. She stayed silent. She said he then closed the door and wiggled his fingers down her front private part for a couple of seconds. When everyone came inside, he stopped.Bedroom incident – Cleaning out her bedroom In her first prescribed interview, KF described another occasion of touching in her bedroom. She thought it happened when she was cleaning out her bedroom. She said the appellant came into her bedroom and asked if he could do it. She stayed silent. She said that he put his fingers on the outside of her vagina.Bedroom incident – Playing in her bedroom

Decision

Reasons for decision

We dismiss this ground of appeal. Conclusion We grant permission to appeal on Grounds 1 and 4 but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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