Kotz v The Queen - [2019] SASCFC 160

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
KOTZ v THE QUEEN
[2019] SASCFC 160
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Doyle)
20 December 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction for one count of maintaining an unlawful sexual relationship with a child, CB, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) (count 1) and two counts of aggravated indecent assault against AM contrary to s 56 of the CLCA (counts 5 and 6).
The unlawful sexual relationship was between the appellant and CB, the daughter of his then girlfriend. CB was aged between seven and 12 years during the period of the alleged offending. The offending took place at CB’s mother’s home as well as one occasion at the appellant’s home. The appellant often stayed over at CB’s mother’s home. He would enter CB’s bedroom at night and massage her, which eventually escalated to touching her indecently under her clothing. Over time the offending progressed further. The appellant would lay on his back on CB’s bed, pull her close to him and push her bottom down, so that his genitals pushed against her vulva. Count 1 also particularised conduct including one occasion of penile-vaginal penetration and the appellant causing CB to masturbate him.
AM was a friend of CB and the alleged offending took place while AM stayed over at CB’s house. During the relevant period, AM was aged between 11 and 12 years. Counts 5 and 6 charged the appellant with indecently rubbing AM’s bottom.
The appellant’s eight grounds of appeal can be grouped as follows. First, a complaint that the Judge failed to address whether the evidence of CB and AM, even if honestly given, was reliable, particularly having regard to internal inconsistencies in their testimonies and inconsistencies with other evidence (grounds 1-5). Secondly, a failure to address the defence evidence, given by the appellant’s daughter, which was said to contradict CB’s account of the sexual offending at Salisbury East (grounds 6-7). Thirdly, that the Judge wrongly framed his fact finding as a binary choice between the evidence of the complainants and the appellant (ground 8). The final complaint, which was not included as a ground in the Notice of Appeal but a submission to that effect was made in written submissions, is that the verdict was unreasonable
Held per Kourakis CJ (Stanley and Doyle JJ agreeing), granting permission to appeal on grounds 2, 6, 7 and 8, and dismissing the appeal on all grounds:
1. The inconsistencies are not such…

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 Kotz v The Queen

Details

AGLC: Kotz v The Queen [2019] SASCFC 160
Case: [2019] SASCFC 160
Decision Date: 20 December 2019

CaseChat Overview and Summary

The appeal concerned a conviction for maintaining an unlawful relationship with a child and indecent assault. The appellant, Mr Kotz, was convicted in a trial before a judge without a jury. The appeal was brought before the Supreme Court of South Australia.

The legal issues before the court included whether the trial judge erred in assessing the credibility and reliability of the complainants' evidence, whether the onus of proof had been properly applied, and whether the verdict was unreasonable or insupportable having regard to the evidence. A further issue related to the cross-admissibility of evidence concerning uncharged acts.

The court considered the appellant's submissions that the trial judge failed to adequately address the reliability of the complainants' evidence, particularly in light of alleged inconsistencies. The court found that while inconsistencies existed, they were not of such a nature as to preclude the judge from making a finding that the offences were proved beyond reasonable doubt. The court noted that there was some supporting evidence for the complainants' accounts and concluded that there was no reason to doubt that the charged offences were committed. The court also addressed the cross-admissibility of evidence, noting that the judge had correctly limited its application to specific instances.

The appeal against conviction was dismissed on all grounds.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The finding is significant. It is an adverse finding against the credit of TM and a finding in favour of both the credibility and reliability of AM. That finding is not directly challenged on this appeal.The complaint evidence AM was the first person to whom CB disclosed Mr Kotz’s conduct. Similarly, AM first talked to CB about Mr Kotz touching her. CB gave evidence that she believed she was 11 years old when she spoke to AM about the incidents. She did so at AM’s house when they were sitting on AM’s bunk bed. She told AM how Mr Kotz massaged her and pulled her on top of him, putting pressure on her bottom. She could not recall whether she told AM where, or how often, the incidents took place. She confided to AM before ‘the worst incident’ in Hewett and the offending at Mr Kotz’s house. She recalled AM responding that on more than one occasion, Mr Kotz had done the same to AM, massaging her back, pulling her on top of him and applying pressure to her bottom. CB could not recall if AM told her where the offending occurred. AM testified that they had a ‘full-on talk about it’ at her house in her bedroom. She remembered CB telling her that Mr Kotz had ‘slid it in’. AM could not remember if CB had told her anything else during that conversation. AM told CB that Mr Kotz had touched her bottom. They then discussed the massages AM received. Contrary to CB’s testimony, AM’s memory was that the conversation took place when they were between 14 and 15 years old.Cross-admissibility The Judge found the evidence of Mr Kotz’s conduct on all counts cross‑admissible as to his conduct on all other counts:[5][169]I find that the evidence of each complainant is cross-admissible where each claims to have seen the accused do the same thing to the other. In this case that evidence relates to the uncharged acts tending to demonstrate a sexual interest in the other, that is, the sexualised picking them up and the sexualised conversation. Otherwise the evidence of the two complainants is to be considered separately.Grounds 1, 3, 4 and 5 – errors in the assessment of credibility and reliability, and the application of the onus of proof[5] [2019] SADC 3 at [169]. The submission of Mr Kotz is that the Judge failed to address and identify as the issue whether the accounts of CB and AM were reliable, even though they had ‘endeavoured to tell the truth’.[6] It is submitted that the Judge only addressed the question of reliability in his concluding paragraph:[7][262]I am satisfied that each of the complainants are truthful and reliable in their evidence of the charged offences. I reject the accused’s denials. [6] R v Thompson [2018] SASCFC 104 at [137] (Peek J).[7] [2019] SADC 3 at [262]. See also [265] of the Judge’s reasons reproduced below at [86]. Mr Kotz submits that the Judge failed to consider the reliability of the evidence of CB and AM in his earlier discussion of the evidence. It is necessary to refer to the paragraphs on which Mr Kotz relies.

Decision

Reasons for decision

Whether or not the inconsistencies left a doubt as to the commission of the offences required an evaluation of the testimony of CB and AM respectively. The number, nature and degree of the inconsistencies relied on by Mr Kotz were not such as to preclude the Judge from making a finding on the testimony of the complainants that the offences were proved beyond reasonable doubt. Moreover, there was some supporting evidence of their testimonial accounts. There is no reason for this Court to doubt that the charged offences were committed.Conclusion I would grant permission to appeal against conviction on grounds 2, 6, 7 and 8, but dismiss the appeal on those grounds. I also dismiss the appeal on grounds 1, 3, 4 and 5, and the unreasonable verdict ground. STANLEY J: I agree with the reasons of the Chief Justice, and with the orders he has proposed. DOYLE J: I agree with the reasons of the Chief Justice, and with the orders he has proposed.

Ratio Decidendi

Legal Principle Established

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