Supreme Court of South Australia
(Court of Appeal: Criminal)
PARKER v THE QUEEN
[2022] SASCA 89
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle)
1 September 2022
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
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Between July and August 1989, the appellant was alleged to have committed sexual offences against his 16-year-old adopted daughter. The first involved the appellant touching her breast in the car park of a video store. The second, third and fourth offences occurred at the family home and involved a further touching of the complainant’s breast, digital penetration of her vagina and an act of cunnilingus.
The appellant was convicted by majority verdict of a jury of two counts of indecent assault and two counts of unlawful sexual intercourse, contrary to ss 56 and 49(3) of the Criminal Law Consolidation Act 1935 (SA). He seeks permission to appeal against his convictions on the ground that the verdicts were unreasonable and cannot be supported by the evidence.
Held, per the Court, granting permission to appeal but dismissing the appeal:
1.The inconsistencies or difficulties with the complainant’s evidence in relation to the first offence, the inconsistencies between her evidence and other witnesses generally, and the failure of the complainant to raise the allegation of digital penetration in her first statement were all matters which the jury were reasonably entitled to resolve in favour of the complainant’s credibility and reliability, and did not require doubt as to the charged conduct.
2.The absence of corroboration and complaint evidence, and the forensic disadvantage suffered by the appellant due to the passage of time between the offending and trial, did not, even in combination with the other factors raised on appeal, require a reasonable doubt.
Criminal Law Consolidation Act 1935 (SA) ss 49(3), 56; Evidence Act 1929 (SA) ss 34CB, 34L(5), referred to.
Dansie v The Queen [2022] HCA 25; DES v The Queen [2020] SASCFC 32; Fennell v The Queen (2019) 93 ALJR 1219; Greensill v The Queen (2012) 37 VR 257; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; R v MAS (2013) 118 SASR 160; Tyrrell v The Queen [2019] VSCA 52, considered.
PARKER v THE QUEEN
[2022] SASCA 89Court of Appeal – Criminal: Livesey P, Lovell and Doyle JJA
THE COURT: Following a trial by jury the appellant was convicted, by majority verdict, of two counts of indecent assault and two counts of unlawful sexual intercourse, contrary to ss 56 and 49(3) of the Criminal Law Consolidation Act 1935
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CaseChat Overview and Summary
The central legal issue before the Full Court was whether the verdict reached by the jury was unreasonable or unsupported by the evidence, as argued by the appellant. This ground of appeal was based on several perceived weaknesses in the prosecution's case, including the uncorroborated nature of the complainant's evidence, inconsistencies within the complainant's own testimony, discrepancies between the complainant's evidence and that of other witnesses (specifically JM and TT), and the significant forensic disadvantage suffered by the appellant due to the passage of over 30 years between the alleged offending and the trial.
The Full Court acknowledged the forensic disadvantage faced by the appellant due to the considerable time lapse since the alleged offences. However, after undertaking an independent review of the evidence, the Court concluded that this disadvantage, when considered alongside the other matters raised by the appellant, did not create a reasonable doubt as to the charged conduct. The Court found that the matters relied upon by the appellant, whether considered individually or cumulatively, were insufficient to undermine the challenged convictions.
The Full Court granted the appellant permission to appeal but ultimately dismissed the appeal, upholding the jury's verdict.
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