M, B v Police

Case [2019] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

M, B v POLICE

[2019] SASC 58

Judgment of The Honourable Justice Parker

12 April 2019

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - CONSENT

This is an appeal against a conviction for aggravated indecent assault contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA) recorded after a trial in the Magistrates Court. The Magistrate found that the complainant was affected by an intellectual impairment that rendered her incapable of freely and voluntarily agreeing to the sexual activity that she engaged in with the appellant, a family friend.

The only ground of appeal against the conviction is that it is unsafe and unsatisfactory. The appellant denies that the sexual activity occurred. In the alternative he contends that, if sexual activity did occur, the complainant freely and voluntarily agreed to engage in that activity and was capable of doing so notwithstanding her intellectual disability.

Held, per Parker J, upholding the appeal:

1.  The Court, on an appeal by way of rehearing, must independently review the evidence and carefully scrutinize the findings made by the Magistrate (at [52] and [120]).

2.  The Court should not interfere with the findings of fact made by the Magistrate unless they are shown to be wrong by “incontrovertible facts or uncontested testimony”, are “glaringly improbable” or “contrary to compelling inferences” (at [53]).

3.  The Magistrate did not err in finding beyond reasonable doubt that the appellant engaged in the sexual activity alleged (at [54]-[61]).

4.  An assault will be indecent if it has an element of “sexual lewdness” or a “sexual connotation” (at [122]).

5. The considerations identified in R v Mobilio [1991] 1 VR 339 as being relevant to the assessment of the capacity to give consent under Victorian law are also relevant when determining whether the complainant was capable of freely and voluntarily agreeing to sexual activity (at [129]-[132]).

6.  After careful examination of the evidence of the expert forensic psychologist, there is a reasonable doubt as to whether the complainant was incapable of freely and voluntarily agreeing to participate in the sexual activity that occurred (at [133]-[141]).

Criminal Law Consolidation Act 1935 (SA) ss 20, 46, 49, 56; Supreme Court Civil Rules 2006 (SA) r 286, referred to.
Fox v Percy (2003) (2003) 214 CLR 118; Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; R v Mobilio [1991] 1 VR 339; Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141; Pol v City of Port Adelaide Enfield [2017] SASC 116; R v C, M (2014) 246 A Crim R 21, applied.
M v The Queen (1994) 181 CLR 487; R v Eastwood (1998) 114 A Crim R 448; R v Harkin (1989) 38 A Crim R 296; R v P, LB [2008] SADC 6

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M, B v Police [2019] SASC 58
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[2019] SASC 58
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CaseChat Overview and Summary

In the case of M, B v Police, the appellant was convicted by the Magistrates Court of South Australia of indecent assault and related offences. The appellant appealed against his conviction and sentence, arguing that the evidence was insufficient to prove the sexual activity occurred and that if it did occur, the complainant was capable of consenting to it. The appeal was heard in the Supreme Court of South Australia.

The legal issues the court had to decide were whether the evidence was sufficient to prove that the sexual activity occurred and if it did, whether the complainant could consent to it given her intellectual impairment. The court had to independently review the evidence and scrutinise the findings of the Magistrate, ensuring there was no miscarriage of justice.

The court found that the Magistrate's conclusion that the sexual activity occurred was based on the evidence of JH, the complainant’s aunt, who was deemed a truthful and reliable witness. The court did not find any errors in the Magistrate’s assessment of JH’s evidence or the other witnesses. The court further found that the complainant’s intellectual impairment did not necessarily mean she was incapable of consent. However, the court found that the evidence did not prove beyond reasonable doubt that the appellant’s actions were non-consensual, given the complainant’s apparent pleasure and the loving nature of the embrace.

The court upheld the appeal against conviction, finding the verdict unreasonable or insupportable having regard to the evidence. The appeal against sentence was not considered necessary. The conviction was quashed, and the appellant was acquitted.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, I uphold the appeal against conviction. For that reason it is not necessary to consider the appeal against sentence.Background The prosecution alleged that on 13 November 2016, the appellant engaged in sexual activity with the complainant by placing his hand on or under her left breast while her top was pulled down, placing his mouth on her left breast above his hand and sucking her nipple. This was alleged to have occurred on the front porch of the complainant’s home while PSG, her grandfather, and CM, her brother, were at home. It was further alleged that, pursuant to s 46(3)(e) of the CLCA, the complainant is affected by an intellectual impairment that rendered her incapable of freely and voluntarily agreeing to the sexual activity. The appellant was 54 years old at the time of the alleged conduct. He knew both the complainant and her family through their church. He had visited their home regularly for many years and had known the complainant since her early childhood. On 13 November 2016, JH, the complainant’s aunt, came to the complainant’s home with her husband, BH. She allegedly saw the sexual activity taking place on the front porch. JH was the sole eye witness. Although BH approached the front porch immediately behind JH, he did not observe the activity. At the time of the offence, the complainant was aged 23 years. She lives with her grandparents and brother. She suffers from an intellectual impairment such that her mental age is in the early primary school range (5-9 years of age). Put another way, the complainant has an IQ performance score of approximately 42. She is engaged in sheltered employment. The witnesses at the two day trial were two police officers, the complainant’s aunt JH, her uncle BH, her grandfather PSG, her grandmother PAG and Mr Luke Broomhall, a forensic psychologist. The complainant was not called to give evidence and the appellant exercised his right not to do so. I will consider separately the appellant’s contention that the sexual activity did not occur and his alternative contention that, if it did occur, the complainant freely and voluntarily agreed to engage in that activity and was capable of doing so. Whether sexual activity occurred The finding by the Magistrate that the appellant had engaged in sexual activity with the complainant was largely based upon the evidence of the latter’s aunt, JH. The evidence JH stated in evidence that she visited her parents’ home in a provincial city late on the afternoon of Sunday, 13 November 2016. She called at her mother’s request to see how the complainant’s brother, CM, was faring during her mother’s absence in Adelaide. She said that CM has autism and “mental delays”. JH was accompanied by her husband, BH. To get to the front door of her parents’ home JH walked past the lounge room window. JH could see her father, PSG, sitting in his chair watching television. As she approached the front veranda or porch she “heard some weird noises, like bit of moaning and some loud kind of sucking noises”. JH saw the complainant, her niece, in an embrace with the appellant. She said that the appellant had his hand down the complainant’s shirt and was cupping her breast. She also said that “it was like a lover’s embrace and he had his head on her breast and was sucking on her breast quite loudly”. She had observed this activity for about five seconds (although the Magistrate suggested the period may have been shorter). Both the complainant and the appellant had their eyes closed. JH also stated that the moaning sounded pleasurable and the embrace appeared to be loving and physically consensual.

Evidence

Evidence Before The Court

The finding by the Magistrate that the appellant had engaged in sexual activity with the complainant was largely based upon the evidence of the latter’s aunt, JH. The evidence JH stated in evidence that she visited her parents’ home in a provincial city late on the afternoon of Sunday, 13 November 2016. She called at her mother’s request to see how the complainant’s brother, CM, was faring during her mother’s absence in Adelaide. She said that CM has autism and “mental delays”. JH was accompanied by her husband, BH. To get to the front door of her parents’ home JH walked past the lounge room window. JH could see her father, PSG, sitting in his chair watching television. As she approached the front veranda or porch she “heard some weird noises, like bit of moaning and some loud kind of sucking noises”. JH saw the complainant, her niece, in an embrace with the appellant. She said that the appellant had his hand down the complainant’s shirt and was cupping her breast. She also said that “it was like a lover’s embrace and he had his head on her breast and was sucking on her breast quite loudly”. She had observed this activity for about five seconds (although the Magistrate suggested the period may have been shorter). Both the complainant and the appellant had their eyes closed. JH also stated that the moaning sounded pleasurable and the embrace appeared to be loving and physically consensual. JH stated that the complainant was wearing a loose fitting shirt which the appellant had pulled down under her breast and he had her breast lifted up in his hand. She initially stated that it was her right breast and his right hand and that the complainant was arched upwards to her left side. After demonstrating what she saw, JH corrected her earlier evidence to say that the appellant was holding the complainant’s left breast. At that time she was about one metre away. She also stated that the appellant had the complainant’s breast in his hand and his mouth was on her nipple. Upon seeing JH, the complainant had pushed the appellant away and brought her top up so as to cover her breast. JH stated that when the appellant saw her “he looked shocked. He leant back with a confused look on his face …”. JH also stated that the complainant had said “sorry Aunty [JH] I’m so sorry” while the appellant had his head down. JH stated that she said to the appellant he was a “fucking dog cunt” and should “get inside and tell them what I’ve just caught you fucking doing”. The complainant asked her to stop swearing. JH stated that she pushed or guided the appellant inside where her father, PSG, was. While initially unsure if the appellant had a tablet[1] in his right hand and keys in his left hand, JH later stated that he did not have keys in his left hand and there was nothing but the complainant’s breast in his right hand. There was also nothing in his hands when, very soon after, he stood inside the house.[1] i.e. an electronic device rather than medication.

Decision

Reasons for decision

I agree with those observations and consider them to be highly apposite to the present case.[16][16] Similar observations were made by White J in R v Richardson (Unreported, Supreme Court of South Australia, King CJ, White and Mohr JJ, 20 June 1990, Judgment No 2321).Conclusion I uphold the appeal against conviction. It is therefore not necessary to consider the appeal against sentence.

Ratio Decidendi

Legal Principle Established

While the appellant contends that his reaction upon being confronted by JH suggested his innocence, the respondent submits that there was no evidence that the appellant shook his head in disbelief at JH’s allegations. Rather, the evidence was that the appellant stood looking at the ground while nodding and agreeing with JH and shaking his head in disbelief that JH had caught him red handed.Consideration as to whether sexual activity proven In accordance with r 286 of the Supreme Court Civil Rules 2006 (SA) this appeal is by way of a rehearing. An appeal by way of rehearing is effectively a trial over again on the evidence used in the Magistrates Court. While the Court may receive fresh or further evidence on the appeal, permission to introduce additional evidence has not been sought. The Court must independently review the evidence and carefully scrutinize the findings made by the Magistrate. The fundamental task of the Court on appeal is to satisfy itself that there was no miscarriage of justice. The Court must make due allowance for the advantage held by the Magistrate in seeing and hearing the evidence at trial. The Court must recognise that it did not hear or see the witnesses and it should not interfere with findings of fact made by the Magistrate unless they are shown to be wrong by “incontrovertible facts or uncontested testimony”, are “glaringly improbable” or “contrary to compelling inferences”.[2] [2] Fox v Percy (2003) 214 CLR 118 at 128 [28]-[29] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at 558-559 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ). The key element in the Magistrate’s finding that the alleged sexual activity had occurred was his Honour’s conclusion that JH was a truthful and reliable witness. Although some discrepancies had been identified between her oral evidence and her earlier witness statement, the differences were minor. Importantly, the Magistrate accepted that JH had seen the appellant holding and sucking the complainant’s left breast. The other complaints made by the appellant about the evidence of JH have been satisfactorily addressed by the respondent. I am not persuaded that the Magistrate erred in finding JH to be a truthful and reliable witness. In my view, his Honour carefully analysed the evidence as a whole before concluding that the incident had occurred as described by JH. I also consider that the appellant has not identified any error by the Magistrate in finding that BH was unable to see the sexual activity witnessed by his wife even though he was only a short distance behind her. The evidence of both JH and BH was that his view was blocked by the wall adjacent to the porch. However, while he could not see what was happening, BH did hear his wife’s immediate outraged yelling. In my view there is no substance to the appellant’s complaint that if the activity described by JH had occurred it would have been seen by CM through his bedroom window. There was no admissible evidence that CM was in his bedroom at the relevant time and also no evidence that the blind of his bedroom window was up. Moreover, the evidence of JH was that she saw CM cooking in the kitchen.