Parker v The Queen

Case [2022] SASCA 89

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 89

Court of Appeal – Criminal:  Livesey P, Lovell and Doyle JJA

  1. 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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Parker v The Queen [2022] SASCA 89
Case
[2022] SASCA 89
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CaseChat Overview and Summary

The appeal concerned a conviction for sexual offences. The appellant, Parker, was found guilty by a jury of certain offences against the complainant. The appeal was brought before the Full Court of the Supreme Court of South Australia.

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.

Orders

Orders of the court

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Background

Background to the litigation

JM said that she had minimal subsequent contact with the complainant until they eventually reconciled. That said, she described their relationship even after that reconciliation as confined primarily to the exchange of letters, and occasional visits when the complainant came back to Adelaide from interstate. Agreed facts The prosecution also relied upon several agreed facts. Most of these related to formal matters not of significance to this appeal. However, agreed facts 8 and 9 are potentially significant:Hospital Record8. Brevet Sergeant Jasmin McDonald obtained [the complainant’s] medical records from Modbury Hospital for a check-up appointment. There is a note in the records that [the complainant] attended at Modbury Hospital for a check-up appointment for her asthma on 28 July 1989. A handwritten note on that date reads, ‘no problem with asthma since last visit. Has now quit school and is looking for a job – hasn’t yet found one.’Blockbuster Video Store Campbelltown9. Focus Video store was also located at 519 Lower North East Road Campbelltown from 1988 until it became Blockbuster Video Store in either 1992 or 1993.The defence case The defence case was that the alleged offending did not occur. Defence counsel emphasised the uncorroborated nature of the complainant’s evidence, together with several inconsistencies in the evidence said to undermine the complainant’s credibility and reliability. In particular, defence counsel pointed to aspects of the complainant’s evidence which conflicted with the evidence of TT and JM, and inconsistencies between statements made by the complainant prior to and during trial. Defence counsel also highlighted the significant forensic disadvantage suffered by the appellant as a result of the passage of over 30 years between the offending and the trial, including the inability of the defence to test the evidence of JM in cross examination. The defence case was that, when considered together, these matters left a reasonable doubt as to the appellant’s guilt of the charged offences. The appellant was not called to give evidence. He suffers from a mild form of Alzheimer’s disease but was determined to be fit to plead at trial. No witnesses were called in the defence case.The appeal The appellant complains that the verdict on each count was unreasonable and unable to be supported by the evidence. In his particulars of this ground, as developed in written and oral submissions, the appellant relies upon several suggested inconsistencies and inadequacies in the evidence. For the purposes of analysis they may be grouped under the following topics:1.the complainant’s evidence was uncorroborated and not aided by complaint evidence;2.inconsistencies or difficulties with the complainant’s evidence in relation to Count 1 given the agreed fact that there was no Blockbuster video store at the time, the unlikelihood of the offending occurring in such a public place, the difficulties with her evidence in relation to the appellant smoking and knowing that the complainant smoked, and the evidence to the effect that it was JM and not the appellant who drove her to her medical appointments;3.the failure of the appellant to mention the conduct the subject of Count 3 when first giving a statement to the police;4.inconsistencies between the evidence of the complainant and the evidence of JM and TT; and5.the appellant’s forensic disadvantage given that the allegations related to conduct that occurred over 30 years prior to the trial.

Evidence

Evidence Before The Court

TT explained that it was predominately JM who drove the complainant to places she needed to go (such as medical appointments), as the appellant was always busy with his work or needing to stay at home because he was on call. She acknowledged, however, that the appellant would sometimes take her and the complainant to the video store.Brevet Sergeant McDonald’s evidence Brevet Sergeant McDonald was the investigating officer in this matter. Through her, the prosecution tendered the complainant’s birth certificate and adoption record, as well as the statement taken from JM on 24 March 2019.JM’s statement JM was the complainant’s adoptive mother and the appellant’s wife at the time of the offending. As mentioned, she passed away a week before she was due to give evidence at trial. Her statement was read to the jury. It included the following. JM married the appellant when she was 21 years of age. Together, they had three biological children: two daughters and a son. When their youngest child, TT, was around nine or 10 years old, JM advised the Department of Child Welfare that she and the appellant wished to be foster parents. This ultimately led to their adoption of the complainant and her sister. JM described the complainant and her sister as “very difficult and quite naughty”. She acknowledged that she was a very strict and conservative parent, and that they had resisted her attempts to parent them. She explained that they never did any work around the house and that, on the odd occasion that she did attempt to get them to help, they would refuse and talk back to her. JM said that the complainant suffered badly from asthma, and as a result frequently attended the Modbury Hospital. She recalled that the complainant wanted to smoke and that she had told her that she could not do so because of her asthma. JM said that while appellant worked full time, she worked part time and was left in charge of the children. On her evidence, she would deal with any issues that arose, such as at school, and would take the complainant to appointments or anywhere else she needed to go. She recalled that the appellant did not have a lot of one-on-one time with the complainant, although he would sometimes visit her when she was in hospital with her asthma. JM said that when the complainant was 15 or 16 years old, she wanted to do things that she was not allowed to do, such as go out at night. She recalled that the complainant was often upset with her. She said that one day, out of the blue, the complainant told her that a lady from the Department of Child Welfare was coming to pick her up, and that she was leaving home. JM said that she had never seen any inappropriate behaviour between the appellant and the complainant, and that that none of the children had ever disclosed anything to her about the appellant nor said anything bad about him. She had separated from the appellant around six months after the complainant left home. She explained that they had been waiting for the children to grow up before doing so.

Decision

Reasons for decision

In undertaking the independent review of the evidence required of this Court, we have taken account of the appellant’s forensic disadvantage as described by the trial judge. While the passage of time undoubtedly disadvantaged the appellant’s ability to meet the prosecution case, we are not satisfied that this consideration, even when considered in combination with the other matters relied upon by the appellant, required reasonable doubt as to the charged conduct.Conclusion In summary, we do not consider that the matters raised by the appellant, either individually or cumulatively, were sufficient to require doubt as to any of the challenged convictions. For the reasons given, we grant permission to appeal but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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