Patterson (a pseudonym) v The Queen

Case [2022] SASCA 57

Supreme Court of South Australia

(Court of Appeal: Criminal)

PATTERSON (A PSEUDONYM) v THE QUEEN

[2022] SASCA 57

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle)

22 June 2022

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

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

CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - TAKING OBJECTION TO SUMMING UP

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTIONS TO JURY - JURY DELIBERATION - CONFLICTING EVIDENCE

Application for permission to appeal and appeal against conviction.

The appellant was convicted by a jury of the offence of unlawful sexual intercourse (Count 2), contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). He was acquitted of the charge of indecent assault (Count 1), contrary to s 56 of the CLCA.

The complainant was the appellant’s foster daughter. Count 1 involved an allegation that the appellant forced the complainant to masturbate him whilst in the bathroom of the family home. Count 2 related to an allegation of an act of penile / vaginal intercourse which occurred at a motel in Murray Bridge. On the prosecution case, the appellant and complainant stayed overnight at the motel after travelling to the town to see a movie. The act of sexual intercourse was alleged to have occurred after returning to the motel from the cinema.

The appellant seeks permission to appeal against his conviction on four grounds of appeal, namely that the verdict is unreasonable and cannot be supported having regard to the evidence (Ground 1), the trial judge failed to properly summarise the defence case and evidence to the jury (Ground 2), the trial judge’s directions as to forensic disadvantage were deficient and impermissible (Ground 3), and the trial judge erred in refusing to give a further direction of the kind contemplated by Liberato v The Queen (1985) 159 CLR 507.

In support of Ground 1, the appellant points to three evidential issues. The first is an inconsistency between the complainant’s evidence that she and the appellant watched different movies at the cinema and the agreed facts at trial that neither of the movies were showing on the date of the charged offending and the cinema only had one screen. The second concerns the evidence of Mr Heading, whom the complainant and appellant allegedly met while walking from the cinema to the motel. The third relates to the evidence of the motel’s current manager that the room booked by the appellant had at least two beds at the date of the charged offending, which contradicted the complainant’s evidence that…

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Patterson (a pseudonym) v The Queen [2022] SASCA 57
Case
[2022] SASCA 57
Decision Date

CaseChat Overview and Summary

The appellant, Patterson, sought permission to appeal against his conviction for unlawful sexual intercourse with his foster daughter, who lived with him and his wife between the ages of 13 and 16. The appeal concerned the conviction's reasonableness, the trial judge's directions to the jury, and the trial judge's handling of forensic disadvantage and corroboration warnings. The court had to decide whether the conviction was unreasonable, whether the trial judge adequately summarised the defence case, whether the directions on forensic disadvantage were appropriate, and whether the trial judge should have given an additional Liberato direction.

The court found that the conviction was unreasonable as there were significant issues with the complainant's credibility, which was central to the prosecution's case. The court also found that the trial judge did not adequately summarise the defence case and that the directions on forensic disadvantage were deficient. However, the court found no merit in the argument that the trial judge should have given a further Liberato direction.

The appeal was allowed on the ground that the conviction was unreasonable. The court found that the issues with the complainant's credibility and the forensic disadvantage made it reasonably possible that an innocent person had been convicted. The court did not address the other grounds of appeal as the appeal was allowed on the first ground.

The final orders of the court were that the appeal be allowed, the conviction be set aside, and a re-trial be ordered.

Orders

Orders of the court

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Background

Background to the litigation

Sitting as a single judge, I referred the appellant’s application for permission to appeal for hearing as on appeal.Background It is appropriate to commence my consideration of the various grounds of appeal with a summary of the prosecution and defence cases at trial. The complainant was born in May 1986, and was placed in foster care at a very young age. She lived with Mr and Mrs N for over nine years, from July 1990 to October 1999. Then, from 5 October 1999 until 15 June 2002 (that is, from when she was 13 years of age until she was 16 years of age), she lived with the appellant and his wife at their rural farming property in Coomandook. The appellant and his wife have three sons, but only the youngest of them was still living with them when the complainant lived with them. The complainant gave evidence of a single uncharged act, being an occasion before the event alleged in Count 1, when the appellant looked at her through a window whilst she was in the bathroom. She was naked at the time, having just had a shower. As to Count 1, the complainant’s evidence was that the conduct the subject of this charge occurred on an evening when she and the appellant were alone together at the family home. The appellant gave her some alcohol, which resulted in her vomiting in the passageway. She made her way to the bathroom, removed her clothing and got in the shower. The appellant followed her into the bathroom, undressed himself and got into the shower with her. He took her hand and placed it on his penis. He caused her to masturbate him for a period of time until he ejaculated. As to Count 2, the complainant described an occasion of sexual intercourse at the Olympic Motel in Murray Bridge. The complainant said that the appellant drove her to Murray Bridge so that they could see a movie and stay overnight at a motel. According to the complainant, this occurred when she was 14 years of age and in year 8 at school, on an occasion when the appellant’s wife (and son) were away picking potatoes. She said that after driving to Murray Bridge, they checked in to the motel. They then went to the movies. She said that on the walk back to the motel she met a male, Mr Heading. The complainant and the appellant stopped and spoke to Mr Heading. The complainant said that in doing so she was trying to delay their return to the motel, and that the appellant appeared agitated by this delay. However, they ultimately returned to the motel and the act of sexual intercourse occurred that night. The following day they returned to the family home. The complainant said this was the only time that she and the appellant stayed together in Murray Bridge.[13][13] She thought there might have been another occasion where she went to Murray Bridge with the appellant and his wife and stayed with a relative. The prosecution relied upon a number of agreed facts. I will mention some of these as they become relevant in my analysis of the evidence. The prosecution also led evidence which it contended corroborated the complainant’s evidence in relation to Count 2 in important respects.

Evidence

Evidence Before The Court

The offending was alleged to have occurred between October 1999 and June 2002. Following submissions, the trial judge gave a direction relating to delay resulting in significant forensic disadvantage to the appellant pursuant to s 34CB of the Evidence Act 1929 (SA) (the Evidence Act). It will be necessary to say something more about that issue. Following an earlier trial, a conviction for the unlawful sexual intercourse charge was set aside on appeal.[1] At the earlier trial no verdict was returned on the indecent assault charge. [1] R v P, TJ [2019] SASCFC 114 (Nicholson J, with whom Stanley and Doyle JJ agreed), regarding a failure to give directions on evidence which may or may have not been complaint evidence under s 34M of the Evidence Act 1929 (SA). That evidence does not appear to have been led at the retrial. The appellant challenges his conviction on a number of grounds, each of which require permission to appeal pursuant to s 157(1)(a)(ii) of the Criminal Procedure Act 1921 (SA) (CPA). We are grateful to Doyle JA for comprehensively setting out all of the grounds of appeal, the cases for the prosecution and the defence at trial, and the contentions made on appeal. Because we have reached the view that the appeal should allowed on appeal Ground 1, we may be comparatively brief. Appeal Ground 1: the verdict is unreasonable Appeal Ground 1 is concerned with whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, within the meaning of s 158(1)(a) of the CPA. On this ground the ultimate question is whether there is a significant possibility that an innocent person has been convicted.[2] That is, this Court must determine whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt.[3] The question is sometimes put as whether the jury must, as distinct from might, have entertained doubt about the appellant’s guilt.[4][2] Pell v The Queen (2020) 268 CLR 123, [9], see also [119], [127] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).[3] M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).[4] Libke v The Queen (2007) 230 CLR 559, [113] (Heydon J), followed in Pell v The Queen (2020) 268 CLR 123, [44]-[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). The appeal court must not “disregard or discount” that the jury is the body entrusted with primary responsibility for determining guilt or innocence and that it had the benefit of having seen and heard the witnesses and was, as a result, in a position to evaluate the evidence in a manner that is denied to a court of appeal.[5] [5] M v The Queen (1994) 181 CLR 487, 493-495 (Mason CJ, Deane, Dawson and Toohey JJ). In this case, it is necessary to bear in mind that the prosecution case depended upon the evidence of the complainant. Whilst the conviction suggests apparent acceptance of the credibility and reliability of the complainant by the jury, that acceptance was not unqualified, as is shown by the acquittal on the indecent assault charge.

Decision

Reasons for decision

These problems with the complainant’s account necessarily undermined her credibility and reliability in a case where the complainant’s credibility and reliability formed the centrepiece of the prosecution case. The evaluation of that evidence was necessarily undertaken in a context where the appellant was labouring under a significant forensic disadvantage caused by delay.Conclusions On the whole of the evidence, it is reasonably possible that the conduct alleged by the complainant did not occur. In these circumstances, we would grant permission to appeal on Ground 1 and allow the appeal. On the other grounds of appeal, we respectfully agree with the reasons of Doyle JA. DOYLE JA: The appellant seeks permission to appeal against his conviction for the offence of unlawful sexual intercourse. He seeks permission to appeal on grounds which include a contention that the verdict was unreasonable, as well as various complaints of miscarriage by reason of contended deficiencies in the directions given to the jury by the trial judge. By way of background, the appellant was charged with two offences, indecent assault[11] (Count 1) and unlawful sexual intercourse[12] (Count 2). The complainant in respect of both counts was his foster daughter. She commenced living with the appellant and his wife when she was 13 years of age, and continued to do so until she was 16 years of age. The offending was alleged to have occurred between 4 October 1999 and 16 June 2002, while the complainant was living with the appellant and his wife.[11] Contrary to s 56 of the Criminal Law Consolidation Act 1936 (SA) (the CLCA).[12] Contrary to s 49(3) of the CLCA. The charge of indecent assault involved an allegation that the appellant forced the complainant to masturbate him whilst in the bathroom of the family home. The charge of unlawful sexual intercourse involved an allegation of an act of penile / vaginal intercourse at the Olympic Motel in Murray Bridge. At an earlier trial of these charges, no verdict was returned in relation to the charge of indecent assault, and the appellant was convicted of the charge of unlawful sexual intercourse. That conviction was overturned on appeal. In the subsequent re-trial of these charges, the appellant was acquitted of the charge of indecent assault, but convicted of the charge of unlawful sexual intercourse. It is against this conviction that the appellant seeks permission to appeal. The appellant seeks permission to appeal on four grounds, namely that:·the verdict of guilty is unreasonable and cannot be supported having regard to the evidence (Ground 1);·the trial judge failed to draw the jury’s attention to certain aspects of the evidence upon which the defence case placed reliance, and otherwise failed to properly summarise the defence case to the jury (Ground 2);·the trial judge’s directions as to forensic disadvantage were deficient, and incorporated an impermissible reference to disadvantage that accrued on the prosecution case (Ground 3); and·the trial judge erred in refusing to give a further Liberato direction to the jury in light of their apparent focus upon the evidence of the accused (as evidenced by the jury questions) (Ground 4).

Ratio Decidendi

Legal Principle Established

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