(The Honourable Acting Chief Justice Livesey, the Honourable Justice Bleby and the Honourable Justice David)
8 August 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - WHERE CONVICTION QUASHED AND VERDICT OF ACQUITTAL ENTERED
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
The appellant was convicted following a trial by judge alone of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The issue at trial was whether the appellant had established the defence under s 49(4)(b)(ii) of the CLCA (s 49(4) defence), namely that he believed on reasonable grounds that the complainant was 17 years or older when he had sexual intercourse with her on two occasions, a few weeks apart.
The complainant’s evidence was largely rejected and the appellant’s evidence was largely accepted. The appellant said he believed the complainant when she said she was 18 at the time of the first occasion, and he believed her and her friend when they said they were 17 on the second occasion. The trial judge found that the appellant made out the s 49(4) defence in connection with the first sexual encounter but not the second.
On appeal the appellant contended that the trial judge failed to give adequate reasons and the verdict was unreasonable or could not be supported having regard to the evidence. The appellant also sought permission to appeal against his sentence.
HELD (by the Court) allowing the appeal, setting aside the conviction and entering an acquittal, dismissing the application for permission to appeal against sentence:
1. The s 49(4) defence involves a two-stage test. The first element concerns the accused’s honest and genuine belief. The second concerns whether there were reasonable grounds for the accused’s belief. Both elements call for a finding of fact to be made on the balance of probabilities. The second element is broadly, but not wholly, objective. Self-induced intoxication will not assist in the evaluation of the second element.
2. The reasons given by the trial judge for rejecting the appellant’s s 49(4) defence were not adequate.
3. When determining whether the verdict was unreasonable or unsupported having regard to the evidence, after undertaking an independent assessment of the whole of the record the appeal court must determine whether the appellant established his s 49(4) defence on the balance of probabilities, with the consequence that it was not open to the trial judge to reject it. That is, whether this is a case where the trial judge must, as distinct from might,…
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.
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AGLC
Peacock v The King [2024] SASCA 97
Case
[2024] SASCA 97
Decision Date
CaseChat Overview and Summary
In *Peacock v The King*, the Court of Appeal of South Australia considered an appeal against a conviction for a sexual offence. The appeal concerned the interpretation and application of a statutory defence relating to the accused's belief about the complainant's age.
The central legal issue before the court was the proper test to be applied when assessing a defence under section 49(4) of the Criminal Law Consolidation Act 1935 (SA). Specifically, the court had to determine how to evaluate the two elements of this defence: first, whether the accused honestly and genuinely believed the complainant was of or above the age of 17, and second, whether that belief was based on reasonable grounds.
The court reasoned that section 49(4) requires a two-stage test. The first stage is subjective, focusing on the accused's actual belief about the complainant's age. This belief must be honest and genuine, and if the accused held no belief, the defence would fail. The court emphasised that the reasonableness of this belief is not relevant at this first stage. The second stage is broadly objective, requiring an assessment of whether there were reasonable grounds for the accused's belief, having regard to the evidence known to the accused at the time of the alleged offence. This evaluation involves a normative judgment about whether the grounds offered are objectively reasonable in the circumstances, excluding self-induced intoxication from consideration when assessing reasonableness. The court noted that while the belief itself might appear unreasonable, the factual question remains what the accused actually believed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Whilst s 49(4) is concerned only with a defence to offending under s 49 of the CLCA rather than a general defence, the broad concurrency in wording and approach to cases involving an accused’s belief, and whether that belief was based on reasonable grounds, is significant. Conclusions regarding the s 49(4) defence These authorities tend to support what is apparent from the text of the s 49(4) defence and the approach taken before this Court. That is, the adoption of a two-stage test, where the first element concerns the accused’s belief, and the second concerns whether there are reasonable grounds for that particular accused’s belief. The authorities also support the proposition that these elements must be evaluated having regard to the particular attributes and circumstances of the accused, save that self-induced intoxication must be left out of account when evaluating whether there were reasonable grounds for the accused’s belief. The first element of the s 49(4) defence is concerned with the accused’s belief about the complainant’s age. That may be described as the subjective element. Whether the accused’s belief is reasonable is not relevant to the first element. The court is not concerned with what the accused should have believed but with what, in fact, the accused honestly and genuinely believed was the age of the complainant. If the accused had no belief at all on the topic the defence must fail, though that circumstance might be thought rare. There may be cases where what is said to have been believed appears so unreasonable that it will be difficult to accept that it could represent what the accused actually believed. Having said that, the question for the court remains the factual question as to what the accused believed at the time of the alleged offending. That will call for a finding of fact to be made on the balance of probabilities based on the evidence before the court. The second element is concerned with whether the accused’s belief was based on reasonable grounds. That element is broadly, but not wholly, objective. The accused’s belief remains the centrepiece for the defence. The question for the court is whether, assuming that the accused believed that the complainant was of or above the age of 17, were there reasonable grounds for that belief. That is to say, the trier of fact must determine whether on the evidence before the court and known to the accused, there was a reasonable basis for the accused’s belief. The evaluation of what is “reasonable” will involve a normative judgment. The trier of fact must consider whether what is offered as reasonable grounds are in fact “reasonable”. That will require an evaluation to be made in the context of the circumstances of the case. To reiterate, the grounds relied on must have been known to the accused at the time of the alleged offending, they must have grounded the accused’s belief, and they must be capable of providing reasonable support for that belief.