Park (a pseudonym) v The King

Case [2022] SASCA 132

Supreme Court of South Australia

(Court of Appeal: Criminal)

PARK (A PSEUDONYM) v THE KING

[2022] SASCA 132

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)

8 December 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERALLY

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

The appellant was convicted of seven counts of unlawful sexual intercourse against his then teenage foster sister. The offending took place when the complainant was between 14 and 16 years of age and living with her foster family, the Parks, at their rural property.

The appellant appeals against his convictions on eight grounds, including that the trial Judge inadequately dealt with the complainant's admitted lies, erred in his assessment of the evidence of the complainant's former foster mother and, in any event, that the verdict was unreasonable and could not be supported having regard to all of the evidence.

Held, per the Court, granting permission to appeal, allowing the appeal on Grounds 2, 3 and 4 and remitting the matter to the District Court for retrial:

1.   The trial Judge failed to adequately explain how he dealt with the question of the complainant's admitted lies.

2.   The trial Judge did not err in his assessment of Mrs N's evidence.

3.   The trial Judge erred in finding that the complainant's evidence at trial was not inconsistent with any prior out-of-court statements. Such a finding had the effect of bolstering the complainant's credit.

4.   It was open to the trial Judge to find that, in the circumstances, the complainant's knowledge of the appellant's circumcision demonstrated esoteric knowledge.

5.   In considering the complainant's evidence on Count 6, the trial Judge was not in error in failing to acknowledge the agreed fact of the Volvo truck having a synchromesh gear box.

6.   Notwithstanding the significant forensic disadvantage suffered by the appellant, the Court does not consider that the trial Judge must have entertained a doubt about the guilt of the appellant.

Criminal Law Consolidation Act 1935 (SA); Evidence Act 1929 (SA), referred to.
Dansie v The Queen [2022] HCA 25; DL v The Queen (2018) 266 CLR 1; Goldsmith v Sandilands [2002] HCA 31; JGS v The Queen [2020] SASCFC 48; Kirkland v The Queen [2021] SASCA 14; M v The Queen (1994) 181 CLR 487; Macks v Viscariello (2017) 130 SASR 1; Palmer v The Queen (1998) 193 CLR 1; Patterson (a pseudonym) v The Queen [2022] SASCA 57; Pell v The Queen (2020) 268 CLR 123; Piddington v…

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Park (a pseudonym) v The King [2022] SASCA 132
Case
[2022] SASCA 132
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction recorded on a guilty plea by the appellant, Park, against charges of sexual offences. The complainant, who was between 14 and 16 years old during the alleged offending, gave evidence via recorded videos from previous trials. The prosecution alleged that the appellant, who was 26 years old at the time and lived at the same property, regularly engaged in sexual intercourse with the complainant in his bedroom over a two-year period. The appeal was heard by the Court of Appeal.

The legal issues before the Court of Appeal included whether the trial judge had erred in his findings and reasoning, leading to a miscarriage of justice. Specifically, the court considered grounds of appeal relating to the unreasonableness or insupportability of the verdict having regard to the evidence, and the improper admission or rejection of evidence. The appellant also argued that he suffered a significant forensic disadvantage at trial.

The Court of Appeal, after considering all the evidence and the submissions, found that grounds 2, 3, and 4 of the appeal were established. While acknowledging the significant forensic disadvantage suffered by the appellant, the court did not consider that the trial judge must have entertained a doubt about the appellant's guilt, thus dismissing that specific ground. However, due to the nature of the errors identified in grounds 2, 3, and 4, the court determined that the proviso, which allows an appellate court to dismiss an appeal if it believes no substantial miscarriage of justice has occurred, was inappropriate. The court granted permission to appeal on Ground 4 and allowed the appeal on Grounds 2, 3, and 4.

The Court of Appeal ordered that the matter be remitted to the District Court for retrial before a different judge. The appellant's request to stay the prosecution, given the lengthy history of the matter, was not acceded to, with the court stating that the decision to prosecute again rested with the Director of Public Prosecutions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As the appellant challenges the reasoning of the trial Judge and several of his findings, it is necessary to set out the evidence in some detail.Evidence at trial The complainant did not give evidence in person. As mentioned, the prosecution tendered videos that recorded the complainant’s evidence given in two earlier trials and the transcript of that evidence. The prosecution tendered plans and photographs of the house where the offending allegedly took place. A number of facts were agreed. Finally, the prosecution tendered the incomplete evidence-in-chief given by the accused at one of the earlier trials. Prosecution evidence The complainant was born on 24 May 1986. She lived under the foster care of Mr and Mrs N from July 1990 to October 1999, when she was between four and 13 years’ old. From October 1990 at age 13, the complainant ceased living with Mr and Mrs N and was placed under the foster care of Mr and Mrs Park at their farmhouse (“the property”). The appellant is the biological son of Mr and Mrs Park and was also living at the property at the same time as the complainant. He was 26 years’ old when the complainant moved in. The complainant remained in the care of Mr and Mrs Park until June 2002 when she was 16 years’ old. The prosecution alleged that during a two-year period in which the complainant lived at the property, from between 2000 to 2002, the appellant regularly had sexual intercourse with her in his bedroom. The complainant was between 14 and 16 years’ old during this time. The prosecution case relied on the recorded evidence of the complainant given at two previous trials. The circumstances of the alleged offending can be summarised as follows:·Counts 1 and 2: the complainant gave evidence that the appellant entered her bedroom while she was in bed. They went to the appellant’s bedroom, got into his bed and watched television. He inserted his finger into her vagina. That act was followed by an act of penile/vaginal sexual intercourse the subject of Count 2. Following Counts 1 and 2, the complainant gave evidence that the appellant routinely had sexual intercourse with her in his bedroom, typically while she was lying on her back. Counts 3–7 involved specific occasions of sexual intercourse recalled by the complainant in the context of this routine offending.·Count 3: the complainant recalled an occasion of penile/vaginal sexual intercourse which occurred while she was on top of the appellant. She specifically remembered this occasion as it was not the “usual” position.·Count 4: when the complainant was approximately 14 years’ old, she entered the appellant’s bedroom and saw that he held the barrel of a rifle in his mouth. The appellant told the complainant that he had broken up with his girlfriend. The complainant thought he was contemplating suicide. After some discussion, the complainant fellated the appellant.·Count 5: the night following the offending the subject of Count 4, the complainant and the appellant had penile/vaginal sexual intercourse. The complainant believed them to be in a romantic relationship.·Count 6: an act of penile/vaginal sexual intercourse in the back of a Volvo F12 truck, which the appellant had allowed the complainant to drive for a short distance on the farm. ·Count 7: the complainant was driving a chaser bin in the paddock and the appellant was driving a header. The appellant asked her to get into the header and proceeded to have penile/vaginal intercourse with her.

Decision

Reasons for decision

We have considered all the evidence. We have taken into account the significant forensic disadvantage suffered by the appellant. We generally agree with the respondent’s submissions on this ground. We do not consider that the trial Judge must have entertained a doubt about the guilt of the appellant. We dismiss this ground of appeal. Conclusion Grounds 2, 3 and 4 have been established. Given the nature of the errors, any application of the proviso is inappropriate. The appellant urged this Court, given the lengthy history of the matter, to consider not remitting the matter for a further trial if error was established. Practically, that is asking this Court to stay the prosecution. While the history is indeed unfortunate, the question of whether the case should be prosecuted again is a matter for the Director of Public Prosecutions to consider.Orders We would grant permission on Ground 4 and allow the appeal on Grounds 2, 3 and 4. We would remit the matter to the District Court for retrial before a different judge.

Ratio Decidendi

Legal Principle Established

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