Keenan (a pseudonym) v The King - [2023] SASCA 141

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
KEENAN (A PSEUDONYM) v THE KING
[2023] SASCA 141
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice David)
21 December 2023
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - IN GENERAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - WHERE NEW TRIAL ORDERED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
This is an appeal against conviction.

Following a trial by judge alone, the applicant, was convicted of one count of unlawful (digital) sexual intercourse with a person under 17 years, and two counts of indecent assault contrary to ss 49(3) and 56(1) of the Criminal Law Consolidation Act 1935 (SA).
The alleged offending took place on 2 April 2021, on a farming property in the Adelaide Hills. The property hosted a restaurant and several hundred sheep which the applicant agisted. The applicant was the manager of the restaurant, where the complainant also worked. On that day, the complainant attended the farm with the applicant along with the owner of the restaurant and various members of their families to pick grapes for wine.
The complainant was 15 years of age at the time of the alleged offending. At trial, she testified that following the grape picking, the applicant requested they go for a drive together to pick up his motorbike. He drove her from the restaurant to a nearby water tank located on the property. He then parked at a water trough a short distance from the tank and sexually assaulted her.
The applicant’s testimony at trial was different to that of the complainant. He testified that she volunteered to accompany him to the water trough in order for him to fix it and provide the sheep with water. Upon arriving at the tank, he asked the complainant to climb onto the top of it to hold a hose to enable him to siphon water from the tank to the nearby trough. He denied any sexual contact between himself and the complainant.
The complainant denied any conversation with the applicant about providing the sheep with water or about any siphoning from the water tank to the trough. She alleged that when at the water tank, the applicant remained in the car while she climbed the tank to better view the sunset, and that the applicant exited the vehicle for the first time while at the trough after the offending had occurred.
The applicant’s appeal submits a miscarriage of justice arising from inadequate, unsound or unfair reasoning by the Judge in reaching her…

Grounds of appeal

[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.

Continue reading Keenan (a pseudonym) v The King

Details

AGLC: Keenan (a pseudonym) v The King [2023] SASCA 141
Case: [2023] SASCA 141
Decision Date: 21 December 2023

CaseChat Overview and Summary

The appeal concerned a criminal conviction against the applicant, referred to as Keenan, for sexual offences. The dispute arose from conflicting accounts of an interaction between the applicant and a complainant, C, during a drive to a water tank. The appeal was heard by the Supreme Court of South Australia, comprising Chief Justice Kourakis, Justice Bleby, and Justice David.

The legal issues before the Court were whether the trial judge erred in her assessment of the applicant's credibility and whether this error resulted in a miscarriage of justice. Specifically, the court considered whether the judge's rejection of the applicant's evidence was based on an assumption not supported by the evidence presented at trial or by judicial notice.

The Court reasoned that the trial judge had made a finding regarding the improbability of a person having sufficient lung capacity to draw water through a long hose from a tank. This finding, which was crucial to the judge's adverse assessment of the applicant's credibility, was not supported by any evidence presented during the trial, nor was it a matter of common knowledge that could be judicially noticed. Consequently, the Court concluded that this unsupported finding led to a miscarriage of justice.

The Court granted permission to appeal, allowed the appeal, set aside the convictions, and ordered a new trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I would grant permission to appeal, allow the appeal, set aside the convictions and order a new trial.The evidence I confine my narrative to the accounts of the applicant and C concerning their visit to the tank and trough. The applicant gave evidence that at about 4:30pm after completing the picking and crushing of the grapes, he sat around the pizza ovens with other grape pickers. Some of them left, leaving him there with PS, C, and C’s father. The applicant went to the supermarket to make some purchases and returned to the restaurant at about 6:10pm. C testified that after the picking of the grapes, she slept for a short time. Shortly after she woke up, she was sitting down at the restaurant with the owner. The applicant pulled up in his car and asked her if she wanted to come for a drive to pick up his motorbike. C testified that she agreed. The applicant on the other hand, testified that when he returned from the supermarket, he told PS that he was driving to the paddock in which the sheep were kept to fill up the water trough. According to the applicant, C was in the presence of PS at that moment and volunteered to accompany him. When C got into the car, he asked her if she would mind driving the ute if he were to ride his motorbike back from the vineyard where he had left it. C declined, explaining that she could not drive a manual. As a result, the applicant never retrieved his motorbike. C denied volunteering to go for a drive with the applicant and denied any conversation about providing water to the sheep, but accepted that she had declined his’s invitation to drive the ute so that he could pick up his motorbike. C’s testimony as to the reason for going to the tank was:[3] [3] Trial transcript 51-52.Q.Do you remember him, I suggest, saying something to [PS] along the lines that he was going to give the sheep water.A. No.Q. That he needed to give the sheep some water.A. No, he didn’t say that.Q.Do you remember that there was a conversation about the sheep needing water at least a bit later.A. No.Q. Do you say that didn’t happen.A. I’m pretty certain, yes.…Q.In any event, you say you don’t remember any discussion at all about the sheep and water or anything of that nature.A. No, I don’t recall.Q. Didn’t happen.A. No.Q.Anyway, I’m suggesting to you that whilst he was telling - that is, he, that is [the applicant] - was telling [PS] that he was going to give the sheep water, you then offered to come for a drive.A. No.Q. And it was, in fact, you that asked him whether you could come with him.A. That’s not true.Q.And he said to you, didn’t he, at one stage, I suggest, that he wanted you to drive the car back so that he could pick up his motorbike.A. Yeah.…Q.And on that occasion he asked you if you could drive the car back so he could pick up his motorbike, but you said you couldn’t drive that car.A. Yeah.Q. Why did you say that.A. Because it was a manual. C testified that when they arrived at the concrete tank on the hill, the applicant asked her how ticklish she was. C said she laughed the conversation off. She said she then got out of the car and climbed onto the tank to watch the sunset.

Decision

Reasons for decision

Moreover, the Judge also rejected the defence submission that on the applicant’s evidence he did not ask for C to accompany him, because she volunteered. However as counsel for the applicant submitted on the appeal, it was precisely because he already had a volunteer in C that it was unnecessary for him then to ask C or anybody else to accompany him. Conclusion The Judge has rejected the applicant’s account on the basis of a fact which was neither proved in the evidence nor of which judicial notice could be taken. There has therefore been a miscarriage of justice. I would grant permission to appeal and allow the appeal. I would set aside the conviction and order a new trial. BLEBY JA: I agree, for the reasons given by the Chief Justice, that there was no evidential basis for the judge’s finding as to the improbability of a person having sufficient lung capacity to draw water through a 40-50 metre hose from a tank. That is not a matter of which judicial notice could be taken. Moreover, there was no evidence, for example, as to the state of preparedness of the siphon and whether the judge’s description of the task is what would have been required in this case. I also agree that this finding directly informed her Honour’s adverse assessment of the appellant’s credibility. That has resulted in a miscarriage of justice. This is not a case where the proviso can be applied.[15] I would allow the appeal, set aside the conviction and remit the matter for retrial.[15] Boyle (A Pseudonym) v The Queen (2022) 299 A Crim R 92; [2022] SASCA 50 at [145]. DAVID JA: I agree with the reasons and orders proposed by the Chief Justice.

Ratio Decidendi

Legal Principle Established

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