Kendall v The King

Case [2024] SASCA 54

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

KENDALL v THE KING

[2024] SASCA 54

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Kimber)

9 May 2024

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - WHAT CONSTITUTES

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - TAKING OBJECTION TO SUMMING UP

This is an appeal against conviction.

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 of the Criminal Law Consolidation Act 1935 (SA) ('the CLCA'). The particulars of the charge alleged that between 1 May 2006 and 31 October 2014, the appellant performed multiple unlawful sexual acts upon or with the complainant.

The appellant was the domestic partner of the complainant’s mother. At the time of the alleged offending, the complainant was between seven and 17 years of age. The trial took place about eight years after the offending ceased, when the complainant was 25 years of age.

This was the third trial. The first trial had mistried and the second trial resulted in a hung jury. The evidence of the complainant was video-recorded during the second trial and admitted into evidence at the third trial.

There was no further examination of the complainant at the third trial. The prosecution called two witnesses regarding complaint evidence, as well as the investigating officer, and a medical practitioner who examined the appellant’s buttocks.

The appellant did not give evidence at trial. He adduced evidence from a medical practitioner that he was circumcised.

The appellant now appeals his conviction on the following grounds:

1.The trial Judge's directions regarding the significant forensic disadvantage of the appellant pursuant to s 34CB of the Evidence Act 1929 (SA) (‘the Evidence Act’) were inadequate.

2.The trial Judge erred in failing to give the jury a Murray/Robinson direction: R v Murray (1987) 11 NSWLR 12; Robinson v The Queen (1999) 197 CLR 162.

3.The direction of the trial Judge regarding the complaint evidence did not comply with s 34M(4)(c) of the Evidence Act.

The question of permission to appeal on all grounds was referred to this Court for consideration upon hearing the merits of the appeal.

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

1.Although it would have been preferable for the trial Judge to adopt the specific wording of s 34CB of the Evidence Act, the directions ultimately communicated the effect of what was required by s 34CB.

2.In the circumstances of this case, a Murray/Robinson direction…

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Kendall v The King [2024] SASCA 54
Case
[2024] SASCA 54
Decision Date

CaseChat Overview and Summary

The case of *Kendall v The King* concerned an appeal to the Full Court of the Supreme Court of South Australia. The appellant, Kendall, was appealing his conviction for offences relating to the sexual abuse of a child. The complainant alleged that the appellant, who was in a relationship with her mother and acted as a father figure, commenced sexually touching her from approximately 2006 when she was eight or nine years old. The offending, which included digital penetration and causing the appellant to masturbate, allegedly continued until 2016.

The primary legal issues before the Full Court were whether the trial judge had misdirected the jury in relation to the elements of the offences and whether this constituted a miscarriage of justice. Specifically, the appeal grounds concerned the judge's summing up to the jury, with the appellant arguing that certain directions or lack thereof led to an unfair trial.

The Full Court acknowledged the evidence presented at trial, including inconsistencies in the complainant's evidence regarding the timing of certain events and the receipt of a puppy. However, the Court ultimately found that despite these issues and the grounds of appeal raised, the appeal should be dismissed. The Court granted permission to appeal on all grounds but concluded that no miscarriage of justice had occurred.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons that follow, we grant permission to appeal on all grounds but dismiss the appeal.The evidence Before turning to the appeal grounds, it is necessary to say something more about the evidence at trial. The complainant gave evidence that the appellant commenced a relationship with her mother in 2005 when she was seven or eight years old. The complainant and her mother lived together in Mount Gambier. The appellant was living in a different home throughout the earlier period of the alleged offending. The complainant’s two older brothers were no longer living at home, and her two younger brothers were living with their father in Queensland. From 2007 until 2010 or 2011, the complainant’s mother worked for a cleaning company five days a week. She would finish working at about 7:30pm. When her mother was at work, the appellant looked after the complainant, or she would be at home alone. The complainant’s mother stopped working in around 2010 or 2011 when she became ill. By this stage, the complainant was 13 or 14 years old. The complainant gave evidence that the appellant was a father figure to her. She enjoyed spending time with him, and together they would engage in activities such as fishing, bowling, camping, playing video games and going bushwalking. She said she saw him every day. The complainant said that the appellant started sexually touching her in the winter of 2006. The complainant thought she was seven or eight years old at the time. However, in 2006, she would have been eight or nine years old. She said that the first occasion of sexual offending occurred in the lounge room of the appellant’s house and consisted of him digitally penetrating her vagina with his fingers. He told her not to tell anyone. She linked this occasion to the appellant telling her that he could convince her mum to buy her another dog if she let him ‘play down there’. She said about eight weeks after this occurred, she was given a puppy named ‘Patches’. Defence counsel cross-examined the complainant in the second trial about her evidence at the first trial when she said that she thought she was given Patches in 2007. However, her evidence at this trial was that she received Patches in 2006. As to the inconsistency, she explained she was very young at the time of the alleged incident, only eight or nine years old, and she had confused the years because there was so much to remember. The complainant said that following this incident, the appellant continued to insert his fingers into her vagina over about a year. She could not recall how many times he did so. She said she got used to it and that she kind of ‘blocked it out’. The complainant gave evidence that in 2007, the appellant caused her to masturbate him to the point of ejaculation. She said that she was eight, nearly nine, years old when this first occurred and this type of offending continued until 2016. She spoke of the first incident of masturbation which occurred at the appellant’s house. She said the appellant repeated this type of sexual incident with her multiple times at his house after school when her mother was at work. She could not specify the precise number of occasions this occurred but said it happened often. The complainant said he would also look at her breasts and lick and touch them. She said the sexual touching occurred every couple of months, or whenever she wanted something, and it took place at the appellant’s house when her mother was at work.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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