Neuendorf v The King - [2023] SASCA 13

Supreme Court of South Australia
(Court of Appeal: Criminal)
NEUENDORF v THE KING
[2023] SASCA 13
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
23 February 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTIONS TO JURY - JURY DELIBERATION - CONFLICTING EVIDENCE
The applicant was charged, and following a trial by jury, was convicted of one count of aggravated indecent assault, in contravention of s 56 of the Criminal Law Consolidation Act 1935 (SA). The circumstances of the offending involved a single allegation that the applicant indecently touched the complainant’s vagina while they were sleeping together in a tent during an overnight camping trip. The complainant was the applicant’s granddaughter, who was seven years old at the time of the alleged offending.
The applicant seeks permission to appeal against his conviction on the sole ground that the verdict is unreasonable and unable to be supported by the evidence.
Held, per the Court, dismissing the appeal:
1.Having regard to the evidence as a whole, the jury was not required to entertain doubt as to the credibility or reliability of the complainant’s evidence as to the alleged offending, and hence as to the applicant’s guilt of that offending.

Criminal Law Consolidation Act 1935 (SA) s 56; Evidence Act 2017 (SA) ss 12AB, 13BA, referred to.
Dansie v The Queen [2022] HCA 25; DES v The Queen [SASCFC] 32; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Parker v The Queen [2022] SASCA 8; Pell v The Queen (2020) 268 CLR 123, considered.

NEUENDORF v THE KING
[2023] SASCA 13
Court of Appeal – Criminal: Doyle, Bleby and David JJA

THE COURT: Following a trial by jury, the applicant was convicted of one count of aggravated indecent assault, contrary to s 56 of the Criminal Law Consolidation Act1935 (SA). The complainant is the applicant’s granddaughter.
The offending was alleged to have occurred during a camping trip in January 2014. It involved a single incident of the applicant indecently touching the complainant’s vagina while they were sleeping together in a tent. The complainant was born in January 2007, and so was seven years of age at the time of the alleged offending. The charge was aggravated by reason that the complainant was under the age of 14 at the time of the offending.
The applicant seeks permission to appeal against his conviction on the sole ground that the verdict was unreasonable and unable to be supported by the evidence.
Leave to appeal was referred for hearing as on appeal.
The prosecution case
The prosecution case at trial relied largely upon the…

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 Neuendorf v The King

Details

AGLC: Neuendorf v The King [2023] SASCA 13
Case: [2023] SASCA 13
Decision Date: 23 February 2023

CaseChat Overview and Summary

The appeal concerned a conviction for indecent assault. The applicant, Neuendorf, appealed against his conviction, arguing that the verdict was unreasonable or insupportable having regard to the evidence. The appeal was heard by Doyle, Bleby and David JJ.

The central legal issue before the court was whether the evidence presented at trial was sufficient to allow a jury to be satisfied beyond reasonable doubt of the applicant's guilt. This involved an assessment of the complainant's evidence, including her account of an incident during a camping trip in January 2014, and whether any inconsistencies or weaknesses in her testimony rendered the jury's verdict unsafe.

The court considered the complainant's evidence detailing an incident where the applicant allegedly touched her underneath her clothing while they slept in a tent. While acknowledging some inconsistencies in her cross-examination regarding her attire at the time, the court found that her core evidence remained consistent. The judges concluded that the cumulative effect of the matters raised by the defence did not necessitate doubt as to the complainant's credibility or reliability. Upon an independent assessment of all the evidence, the court was satisfied that it was open to the jury to find the applicant guilty beyond reasonable doubt.

The court granted permission to appeal but ultimately dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The prosecution also called evidence from EC, who was the initial complaint witness, and from AD, who was the complainant’s mother, and whose evidence included an elaboration upon the initial complaint. The prosecution also led evidence from CB, who was a friend of the complainant’s father. The complainant’s evidence The complainant commenced her evidence in chief by answering several questions about her personal circumstances including her age, family dynamics and upbringing. She was asked about her relationship with the applicant and gave evidence that she spent quite a lot of time with him while growing up, including living with him for a period. The complainant said that she often used to go camping in Renmark with the applicant. She said that she could not always remember the particular instances of camping, but that she remembered “snippets of some of them”. The complainant described a specific camping trip to Renmark in January 2014. When asked how she knew it was that month, she explained that the camping trip was a couple of days after her seventh birthday. She said that she had received a quad bike for her birthday which she had taken with her on the camping trip. She said that the trip lasted two days and that they stayed overnight. She gave evidence that those present included her father, her grandfather (the applicant), some of her father’s friends, and some of the children of her father’s friends. The group stayed at a property owned by CB, who was one of her father’s friends. The property had a number of connecting houses and units situated on it. During cross-examination, the complainant said that she had a broken leg at the time of the camping trip, and that she either had a cast on her leg or had just had the cast taken off. She said that she was nevertheless able to ride the quad bike. According to the complainant, the applicant brought his Toyota Hilux utility vehicle on the trip, and it had a tent affixed to the top of it. The complainant said that she slept the night with the applicant in the tent affixed to his vehicle. She said that only she and the applicant had slept in the tent. Several photos of the applicant’s vehicle with an affixed tent were tendered during the complainant’s evidence. The complainant said that, early the next morning, she woke with her back to the applicant and realised that the applicant was touching and stroking the outside of her vagina underneath her clothing in a repetitive stroking, or “up and down sort of motion”. She said that the touching continued for several minutes; that she did not know what was happening; that she was tired and was tossing and turning, trying to get back to sleep; and that eventually the applicant stopped. There was no allegation of penetration. The complainant’s evidence was that she was not wearing underwear at the time, but that she could not recall if she was wearing pants or a shirt. Under cross-examination, the complainant initially said that she could not have been wearing long pants at the time because she recalled “skin-to-skin contact”; however, when pressed on this point, she later conceded that she may have been wearing pants at the time. Her evidence remained consistent that the applicant had touched her underneath her clothing; that is, he touched her directly on her skin.

Decision

Reasons for decision

This particular was not developed in written or oral submissions. As we understand it, it is intended merely to address the cumulative effect of the matters addressed in particulars (a) and (b). Having already canvassed our reasons for concluding that the matters addressed under those particulars do not individually provide a basis for impugning the jury’s verdict, it remains to state our conclusion that we are also satisfied that their cumulative effect was not such as to require that the jury entertain doubt as to the credibility or reliability of the complainant’s evidence as to the alleged offending, and hence as to the applicant’s guilt of that offending. Upon our independent assessment of the evidence as a whole, we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged.Conclusion We would grant permission to appeal but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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