JJP v The Queen

Case [2021] SASCA 53

Supreme Court of South Australia

(Court of Appeal: Criminal)

JJP v THE QUEEN

[2021] SASCA 53

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)

3 June 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 - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

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

The appellant was convicted following a trial by jury of maintaining an unlawful sexual relationship with his daughter.

The Information included three allegations of sexual offending by the appellant. The first allegation was that the appellant exposed his penis to the complainant in the shower. The second allegation was that the appellant touched the complainant’s vagina on multiple occasions using his fingers and a cotton bud. The third allegation was that the appellant touched the inside of the complainant’s vagina with his fingers and a cotton bud.

The complainant was eight years old at the time of the trial. In relation to the first allegation, she gave evidence that the appellant ‘flicked’ his penis in the shower and demonstrated what she meant. This led the prosecution to describe the first allegation as an act of masturbation.

It was the defence case that the complainant could not be relied on as a credible and reliable witness due to the numerous inconsistencies in her evidence. In addition, three explanations consistent with the innocence of the appellant were advanced. It was contended that the complainant’s mother influenced the complainant to fabricate the allegations, that the complainant was mistaken as to the identity of the offender, and that the acts described by the complainant were, in truth, innocent in nature.

The appellant appeals against his conviction. The grounds of appeal proceeded with are below:

2. The Judge erred in allowing the complainant to give sworn evidence without conducting an inquiry pursuant to s 9 of the Evidence Act 1929 (SA);

3.  The Judge failed to exclude inadmissible opinion evidence given by the complainant’s mother in relation to whether the appellant’s penis was erect at the time of the offending;

4.  The Judge failed to direct the jury as to the elements of the sexual offences and in relation to the factual issues he was obliged to consider for the purpose of determining whether the appellant committed the unlawful sexual acts;

4A.  The particularisation of facts in relation to the first allegation and the conduct of the prosecution case in relation to that allegation was bad for uncertainty;

5.  The Judge failed to adequately direct the jury as to the nature and significance of inconsistent statements made by the complainant;

7.  The verdict was unreasonable and could not be supported by the evidence.

Held per Kelly P (Doyle and Bleby…

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JJP v The Queen [3 June 2021] SASCA 53
Case
[2021] SASCA 53
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for maintaining a sexual relationship with a child and persistent sexual abuse of a child. The appellant, JJP, was accused of several acts of sexual offending against the complainant, who was aged between five and six years at the time of the alleged offending. The case came before the Full Court of the Supreme Court of South Australia.

The legal issues before the court included whether the trial judge had adequately directed the jury regarding the defence of accidental or innocent touching for hygiene or medicinal purposes, and whether the particularisation of acts in one of the allegations and the prosecution's conduct of the case in relation to that allegation were uncertain. The court also considered whether the complainant's sworn evidence was admissible without a specific inquiry into her understanding of the obligation to be truthful, and whether opinion evidence given by the complainant's mother was improperly admitted.

The Full Court allowed the appeal on grounds relating to the jury directions and the particularisation of the allegations. Kelly P, writing for the majority, found that the jury had not been adequately instructed on the need to reject the defence's assertions of innocent touching before finding the appellant guilty of indecent acts. Doyle JA agreed with these reasons and also rejected the grounds of appeal concerning the complainant's sworn evidence and the mother's opinion evidence.

Consequently, the Full Court quashed the conviction and ordered a retrial in the District Court. Permission to appeal was granted on several grounds, but the appeal was ultimately allowed on specific grounds related to the adequacy of jury directions and the certainty of the prosecution's case.

Orders

Orders of the court

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Background

Background to the litigation

In written and oral submissions on the appeal, counsel for the appellant advised that grounds 1 and 6 are abandoned. A further ground of appeal was added, being ground 4A. This ground contends that the particularisation of acts in allegation (a) of the Information, and the conduct of the prosecution case in relation to that allegation, was bad for uncertainty.Background The complainant was born in January 2012. She was aged between five and six years old at the time of the offending and eight years and seven months old at the time of the trial. The offending occurred against the background of family law disputes and proceedings. As the chronology of those proceedings was highly relevant to the defence case, it is necessary to set out some of that background here. In 2009, the appellant and the complainant’s mother, LP, commenced a relationship. During the relationship, LP lived with the appellant in a country town. They separated in April 2012, approximately three months after the complainant was born. Following the separation, LP moved to another country town where she lived with her new partner, DW. There was no formal agreement in place as to the care of the complainant, however the informal arrangement was that she lived with LP and spent time with the appellant. In 2014, LP and the appellant undertook mediation in an attempt to reach a formal agreement about the custody of, and access to, the complainant. No agreement was reached. In 2015, LP filed an application seeking sole custody of the complainant, following instances where the appellant failed to return the complainant to LP. By an order of the Federal Circuit Court,[1] LP was granted custody of the complainant pending final determination of the application. The appellant was permitted to have access to the complainant every second weekend and during Easter. This arrangement continued until February 2017. [1] Also known as the ‘Family Court’ during the trial. In February 2017, the complainant commenced living with the appellant, with the consent of LP. LP gave evidence that she agreed to this arrangement because she wanted to reduce the tension in her relationship with the appellant. It was agreed that the complainant would stay with the appellant for 12 months and that LP would have access to her on some weekends and during school holidays. By this time, LP and DW had relocated to Adelaide. LP and DW gave evidence that, within six months of February 2017, the appellant refused to hand the complainant over for her visits to her mother. They realised that they had made a mistake in allowing the complainant to live with the appellant. In November 2017, LP commenced proceedings to return the complainant to her care. She also filed contravention applications relating to the appellant’s failure to hand over the complainant on multiple occasions. In 2018, the appellant moved to live with his friend GP, who lived in the same country town. The complainant stayed at GP’s house when the appellant had access.

Evidence

Evidence Before The Court

In light of the allegations raised during the interview, the appellant was prohibited from seeing the complainant. He was arrested on 9 September 2019. Complainant’s evidence The prosecution case relied on statements made by the complainant in her interview with Ms Herbert and the evidence she gave at trial on 14 August 2020. The complainant gave evidence via audio-visual link. Three separate allegations of sexual offending were made against the appellant. It was alleged that he exposed his penis to the complainant on more than one occasion (allegation (a)), that he touched her vagina on more than one occasion (allegation (b)) and that he inserted his finger into her vagina (allegation (c)). I turn now to discuss each allegation in more detail. Allegation (a) The first allegation, referred to as ‘allegation (a)’ in submissions on the appeal, was based on the complainant’s statement to CPS that there were occasions when the appellant showed her ‘his penny, his willy’ in the shower and flicked ‘his penny around’ with his fingers when she was six years old. During examination-in-chief, the complainant was asked to give a demonstration of the manner in which the appellant ‘flicked his penny’. The complainant shook her right hand. This led the prosecution to contend in its closing address that the appellant had masturbated in front of the complainant in the shower. In relation to allegation (a), there was no evidence from the complainant as to whether the appellant’s penis was erect, whether he ejaculated or whether he may have been performing an innocent act such as washing himself. Allegation (b) The second allegation was based on statements made by the complainant that there were occasions when the appellant ‘tickled her penny’ in the shower and in her bedroom at GP’s house. During the interview, the complainant told Ms Herbert that this occurred eight times in total. When asked about the last time that it happened, the complainant stated that the appellant started tickling her on her back. When she said she wanted to go to her own room, he touched her on her penny. The complainant was asked to describe the first time that it happened. She stated that the appellant tickled her penny with his fingers and then washed his hands. The complainant told him to stop, however he continued to touch her. The complainant also described another instance when the appellant tickled her penny with his fingers and with a cotton bud. This occurred in the complainant’s bedroom in the appellant’s house, prior to him moving into GP’s house. The complainant thought she was aged five or six. During the interview, the complainant recalled that she wore bathers in the shower because she did not want the appellant to touch her penny. However, it is noted that in evidence, the complainant stated that she only wore bathers in the shower when she had been swimming in the appellant’s pool. Allegation (c) This allegation was based on the complainant’s assertion during the interview that the appellant ‘touched the inside’ of her penny with his fingers and a cotton bud. This was alleged to have occurred in the complainant’s bedroom at the appellant’s house. The complainant thought she was aged six at that time. The complainant stated that she was clothed and that the appellant went through her ‘knickers’ to touch her penny. The defence case

Decision

Reasons for decision

However, the fact that the accidental or innocent touching of the complainant for hygiene or medicinal purposes was an important aspect of the defence case cannot be ignored. Given this, I consider that the jury was not adequately instructed as to critical matters about which it needed to be satisfied of before finding that the appellant had committed two or more acts of an indecent nature towards the complainant. The jury was not told that, in order to find the appellant guilty, it needed to reject those important aspects of the defence case. Conclusion For these reasons, I would make the following orders: 1. Permission to appeal on grounds 4A, 5 and 7 is granted; 2. The appeal is allowed on grounds 4 and 5; 3. The conviction is quashed; and 4. The matter is remitted for a retrial in the District Court. DOYLE JA: The background to this matter, including the evidence at trial, the parties’ respective cases, and the grounds of appeal, are set out in the reasons of Kelly P. As her Honour has explained, there were originally seven grounds of appeal. These grounds were amended to add an additional Ground 4A. Grounds 1 and 6 were abandoned.Ground 2: the complainant’s sworn evidence I agree with Kelly P’s reasons for rejecting the appellant’s challenge to the trial judge’s decision to permit the complainant to give sworn evidence without conducting an inquiry to determine whether she had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. As her Honour has explained, s 9(1) of the Evidence Act 1929 (SA) creates a presumption that a person has the capacity to give sworn evidence, and the complainant’s young age (eight years) at the date of trial did not of itself require that the trial judge conduct an inquiry. While authority suggests that a trial judge would ordinarily conduct such an inquiry in the case of witness of this young age, this general approach should not be seen as tantamount to a rule of law. To suggest otherwise would tend to reverse the statutory presumption of capacity. In any event, through his viewing of the complainant’s record of interview, the trial judge had information available to him that would have assisted him to form a view as to the complainant’s capacity to understand the obligation to be truthful entailed in giving sworn evidence, and hence as to the need for an inquiry. While the interview did not involve any questions expressly addressing this capacity, it nevertheless gave the judge an opportunity to assess the complainant’s capacity to understand the difference between the truth and a lie, and to engage in the abstract thinking that underpins an ability to understand the obligation to be truthful when giving sworn evidence. In my view, the trial judge was also in a position to make an assessment of the (limited) significance of the inconsistencies and incongruities in the complainant’s interview to the complainant’s understanding of these matters. I do not think this ground of appeal has been made out.Ground 3: opinion evidence given by the complainant’s mother

Ratio Decidendi

Legal Principle Established

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