Lloyd v The King

Case [2023] SASCA 106

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

LLOYD v THE KING

[2023] SASCA 106

Judgment of the Court of Appeal  

(The Honourable Justice David, the Honourable Justice Stanley and the Honourable Justice Kimber)

28 September 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

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

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 - EXTENT OF OBLIGATION TO GIVE REASONS - GENERALLY

This is an application for permission to appeal against conviction.

The appellant was tried before a judge alone on two counts of aggravated indecent assault. Count 1 alleged that the appellant touched the complainant through her jeans on or near her groin. Count 2 alleged that the appellant took hold of the complainant’s hand and placed it on his jeans over his penis. The appellant was found not guilty on Count 1 but guilty on Count 2.

The appellant seeks permission to appeal the verdict of guilty on Count 2. He seeks leave to appeal on two grounds:

1.  the verdict of guilty is unreasonable and cannot be supported having regard to the evidence; and

2.  the conviction should be quashed on the ground that the trial judge’s reasons are inadequate.

Held (per the Court) granting permission to appeal but dismissing the appeal:

1.  there is no basis to conclude that the judge must have entertained a reasonable doubt about the complainant’s evidence and the appellant’s guilt; and

2.  it was not necessary for the trial judge to undertake a minute explanation of every step in his reasoning process. The appellant’s submissions go no further than a complaint that the judge failed to address a peripheral dispute. None of those matters were necessary steps to the verdict of guilty on Count 2.

Juries Act 1927 (SA) s 7(4), referred to.
DL v The Queen (2018) 266 CLR 1; Douglass v The Queen (2012) 86 ALJR 1086; Fleming v The Queen (1998) 197 CLR 250; Libke v R (2007) 235 ALR 517; Pell v The Queen (2020) 268 CLR 123; R v Keyte (2000) 78 SASR 68; R v Lloyd [2023] SADC 2; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, considered.

LLOYD v THE KING
[2023] SASCA 106

Court of Appeal – Criminal:  David JA, Stanley AJA and Kimber AJA

  1. THE COURT:  This is an application for permission to appeal against conviction. 

  2. The appellant was tried before a judge alone on two counts of aggravated indecent assault.  Both counts were alleged to have been committed at Oaklands Park on 28 August…

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AGLC
Lloyd v The King [2023] SASCA 106
Case
[2023] SASCA 106
Decision Date

CaseChat Overview and Summary

The appeal concerned a criminal conviction where the appellant, Lloyd, challenged the verdict of the trial judge. The dispute centred on the evidence presented in relation to Count 2 of the charges. The appeal was heard by David, Stanley and Kimber JJ of the court.

The primary legal issue before the court was whether the verdict on Count 2 was unreasonable or could not be supported having regard to the evidence. This ground of appeal was largely founded on an attack on the credibility and reliability of the complainant's evidence, particularly in light of CCTV footage. The appellant contended that the CCTV footage was inconsistent with the complainant's account of the incident, specifically her claim that she looked down to see her hand being placed on the appellant's groin.

The court considered the CCTV footage and found it to be equivocal, not sufficiently clear to contradict the complainant's evidence. The angle, distance, and resolution of the footage meant that an inconsistency between the complainant's testimony and the objective evidence could not be established. Furthermore, the court addressed a secondary submission regarding a minor inconsistency in the complainant's evidence about the extent to which she turned her head. The court concluded that this peripheral inconsistency, given the complainant's age and the time elapsed since the event, was not of sufficient weight to have caused the trial judge to entertain a reasonable doubt about the reliability of her account of the critical events.

Permission to appeal was granted, but the appeal itself was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The judge held that there was nothing unlikely about the scenario described by S and the absence of any vision on the CCTV footage inculpating the appellant did not cause him to entertain any doubt about S’s reliability and honesty in describing the incident alleged in Count 2. He found that unlike Count 1, the movement that was alleged in Count 2 could not have been accidental or unintentional. The complainant either remembered it happening or concocted the allegation. The judge excluded the latter as a reasonable possibility. The judge found the offence had occurred because he accepted S’s evidence beyond reasonable doubt.Was the verdict unreasonable or could it not be supported having regard to the evidence? Central to this ground is an attack on the evidence of S. The first foundation for this submission is the proposition that the CCTV evidence is inconsistent with S’s evidence that she turned her head and looked down to see her hand having been placed on the appellant’s groin. On the hearing of the appeal the Court viewed the relevant excerpt of the CCTV footage for the period in which it was alleged the appellant had committed the actus reus of the charge on Count 2. At trial it was not part of the prosecution case that the CCTV footage depicted the actus reus of the offence occurring. Rather, it was the appellant’s contention that the CCTV footage was inconsistent with S’s account of the facts alleged to prove the offence because it did not depict her looking to her left to see the appellant’s hand holding her left hand on his penis through his jeans, as she had claimed in her evidence. It was the appellant’s case that the probative weight of the CCTV footage was such that the judge should have found that was reasonably possible in relation to Count 2. In our view there are two answers to this submission. First, having viewed the relevant CCTV footage, it is not sufficiently clear that it contradicts S’s evidence that she looked down and to her left when she felt her hand on the appellant’s groin. In our view the CCTV footage is entirely equivocal on this factual question. We cannot be satisfied that the judge should have found that her evidence was inconsistent with the objective evidence of the CCTV footage. The angle from which the footage was taken, the distance over which the footage was taken and the quality of the footage’s resolution is such that we cannot accept the proposition that there is an inconsistency between S’s evidence and the evidence of the CCTV. The footage does not contradict S’s evidence that while she was sitting on the appellant’s leg playing the game she looked down and to her left to see the appellant placing her hand on his penis. Second, in any event, S agreed that she turned her head to look down in order to observe the appellant holding her hand on his groin.[3] It was suggested to her by defence counsel that she turned her head “a bit” in addition to looking down. It was contended that her acquiescence in this proposition established an inconsistency between her evidence and a statement she had given during the course of a police interview. This single “inconsistency” did not go to the crux of her testimony of the actus reus. It was evidence of a related but peripheral occurrence given by an 11-year old girl some fifteen months after the relevant events. In our view this was not a matter of sufficient weight that it ought to have caused the trial judge to form a reasonable doubt regarding the reliability of S’s account of the critical events constituting the actus reus of the charge on Count 2. [3] T27-28, 33-34.

Decision

Reasons for decision

The parties put submissions in relation to the application of the proviso in the event that the court found that the judge’s reasons were inadequate. In the circumstances it is unnecessary to address the application of the proviso.Conclusion We grant permission to appeal but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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