Police v A, TG - [2006] SASC 299

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
POLICE v A, TG
[2006] SASC 299
Judgment of The Full Court
(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Sulan)
28 September 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
Crown appeal against acquittal - youth charged with assault with intent to commit rape, contrary to ss 48 and 270(1) of the Criminal Law Consolidation Act 1935 - whether the trial Judge erred in failing to find that the youth intended to rape the complainant - role of appellate court in relation to an appeal from a decision of a court of summary jurisdiction - role of appellate court in respect of Crown appeals against acquittal, conviction and sentence - appeal allowed - conviction of common assault and the sentence set aside - verdict of guilty of assault with intent to rape entered - matter remitted to the Youth Court for sentence.
Criminal Law Consolidation Act 1935 s 48, s 270(1); Youth Court Act 1993 s 22; Magistrates Court Act 1991 s 42, referred to.
Thorogood v Warren (1979) 20 SASR 156, distinguished.
Allison v Police [2005] SASC 447; Everett v The Queen (1994) 181 CLR 295; Fox v Percy (2003) 214 CLR 118; H, A v Minister for Families and Corrections [2005] SASC 339; House v The King (1936) 55 CLR 499; P v Police (Unreported, Supreme Court of South Australia, Full Court, Cox, Perry, Lander JJ, 19 July 1996, Judgment No S5677); Police v Cadd (1997) 69 SASR 150; Police v Dorizzi (2002) 84 SASR 416; Tazroo v Police [2002] SASC 155; Warren v Coombes (1979) 142 CLR 531; Weiss v The Queen (2002) 158 A Crim R 133, considered.

POLICE v A, TG
[2006] SASC 299
Full Court: Perry, Nyland and Sulan JJ
Youth Court Appeal

PERRY J: In my view, the appeal should be allowed. I agree with the order proposed by Sulan J and substantially with his reasons.
This is an appeal where there is no challenge by either party to the findings of fact made by the trial judge.
The question whether or not the respondent intended at the time of the assault to rape Ms R is a matter of inference to be drawn from the facts as found. This Court is in as good a position as the trial judge to draw that inference.
With respect to the trial judge, it does not seem to me that the objective facts as found by him, including what he found to be the nature of the personality of the respondent, were matters which should have operated in any way to deflect the court from drawing the ordinary inferences which would be drawn from the actions and statements of the respondent.
Of course, this being a prosecution appeal, the substitution of an inference leading to a conclusion of guilt would only be a legitimate process for the appellate court to follow if the conclusion of guilt can safely be drawn beyond reasonable doubt.
In the particular circumstances of this case, I have no doubt that the prosecution succeeded in proving to the requisite degree of satisfaction the intention of the respondent at the relevant time
NYLAND J: I agree that the appeal should be allowed for the reasons expressed by Sulan J. I also agree that the matter should be remitted to the Youth Court for sentence
SULAN J: This is an appeal against the acquittal of A, TG (“A”), a youth who had been charged with assault with intent to commit rape, contrary to ss 48 and 270(1) of the Criminal Law Consolidation Act 1935. The ground of appeal is that the trial Judge erred in failing to find beyond reasonable doubt that A intended to rape the complainant, Ms R. The trial was before a Judge of the Youth Court, who found A not guilty of the charge but guilty of common assault. The appellant submits that the verdict was contrary to the evidence, and that the Judge was in error in acquitting A.
Background
The facts can be briefly summarised. The prosecution case relied on the evidence of Ms R. The incident occurred at Golden Grove Road, Greenwith, at about 9.30 a.m. on 12 April 2005. Ms R had taken her child to school and was walking along Golden Grove Road towards her home. She was about to cross the road opposite her home when she was grabbed firmly from behind by A, whose arm came around from the left across her neck and shoulders. A put his hand around her mouth so that she was unable to speak. He said, “You’re going to fuck me now, cunt”. She felt him pull her back against his chest and his pelvis, and she could feel his erect penis against her bottom. He was attempting to manoeuvre her in the direction of a lane towards some bushes. He continued to rub his pelvis backwards and forwards against her backside. Ms R heard a car coming from behind and she tried to wave the car down by flapping her arms. A let her go and walked away. She saw him cross Golden Grove Road.
Her evidence was accepted by the trial Judge. It is unnecessary to give a detailed account of other evidence called on behalf of the prosecution, other than to indicate that A was interviewed by the police. He denied that he was the person who had assaulted Ms R. He gave evidence and he maintained that denial throughout the trial. The issue in the trial was identity. The trial Judge was satisfied beyond reasonable doubt that A had assaulted Ms R. That is not an issue in this appeal.
The Judge considered other elements of the charge. He concluded that there was an assault, and that no-one had suggested otherwise. He then considered the question of whether it had been proved beyond reasonable doubt that A intended to rape Ms R. He said:
On the face of it, a statement by the attacker “you’re going to fuck me now cunt” would be sufficient to infer, beyond reasonable doubt, an intent to rape. But in his case, it is not that simple.
There are features of this case which cause me to hesitate to draw that inference beyond reasonable doubt. These cannot all be fully explicated, but they include:-
·    A was not quite 18 years of age at the time.
·    The evidence of A, his family, and other witnesses, show him to be an unusual young man. His lifestyle is very much at odds with most youths his age. He lives a cloistered existence.
·    His demeanour also contrasts with most youths his age. He lacks worldliness, and the usual indicators of social interaction and life experiences.
Turning to the circumstances of the incident:-
·    It was in broad daylight, on a major road at 9.30 in the morning.
·    It was right next to his house.
·    He promptly desisted when Ms R tried to attract attention.
·    He then went straight back to the vicinity of his own house.
·    Shortly afterwards he was acting oddly, at Ms F’s place.
This whole incident is indicative of a lack of forethought. Whilst there was clearly a sexual element to the attack, and despite the words used, I am left with reservations that A had formed any clear, specific, intent, to actually carry out a rape.
The nature of appeals from the Youth Court
The appeal is pursuant to s 22 of the Youth Court Act 1993 (“the Act”), which provides that an appeal against a judgment of a Judge of the Youth Court is to the Full Court of the Supreme Court.
The question of the nature of an appeal pursuant to s 22 of the Act was discussed by White J in H, A v Minister for Families and Corrections.[1] White J concluded that appeals from the Youth Court are to be considered as an appeal from a court of summary jurisdiction, pursuant to s 42 of the Magistrates Court Act 1991. He referred to a number of authorities which considered the question of whether an appeal pursuant to s 22 was an appeal stricto sensu or an appeal by way of re-hearing. He referred to P v Police,[2] in which Cox J, with whom Perry and Lander JJ agreed, said:
The powers of the Supreme Court in reviewing appeals from courts of summary jurisdiction involving disputed findings of fact are wide. See Taylor v Hayes (1990) 53 SASR 282 (Perry J) and Laurie v Nixon (1991) 162 LSJS 16 (FC) in which the authorities are discussed. As Napier J said in Hunter v Walsh [1928] SASR 336, the appeal provisions “throw upon the appellate court a duty to enquire, and to protect the appellant against any substantial miscarriage of justice” (at 340). The powers and restraints on any appeal from the Youth Court to the Supreme Court are those generally applicable to any appeal by way of a rehearing on the documents – for example, an appeal from a single judge of this Court to the Full Court. Thus the Supreme Court will be required to examine for itself the Youth Court’s assessment of the evidence, although in reviewing the Court’s credibility findings it will bear in mind the advantage that is necessarily enjoyed by the tribunal that has seen and heard the witnesses. Devries v Australian National Railways Commission (1993) 177 CLR 472. There is a question whether it is correct now to say that the appeal powers of the Supreme Court under the Youth Court Act or the Magistrates Court Act are wider than those contained in s 353 of the Criminal Law Consolidation Act. See Ghys v Crafter [1934] SASR 28, at 32-3; Taylor v Hayes, at 291; cf. M v The Queen, at 491-495. But they are certainly no narrower.
[1] [2005] SASC 339.
[2] Unreported Supreme Court of South Australia, Full Court, 19 July 1996, Judgment No S 5677.
The nature of appeals pursuant to s 42 of the Magistrates Court Act 1991 (SA) was discussed in Police v Cadd[3] and Police v Dorizzi.[4]In Cadd, Doyle CJ concluded that the prosecution can appeal against an acquittal.
[3] (1997) 69 SASR 150.
[4] (2002) 84 SASR 416.
The function of the court in an appeal by way of re-hearing was discussed in Tazroo v Police[5] and Allison v Police.[6] In Tazroo, Lander J said:
Because it is a re-hearing and because it is an appeal from the Magistrates Court the Court has an obligation to re-hear the case in the sense that it must reconsider all of the evidence before the magistrate together with such other evidence as it might admit.
It is the duty of this Court to make up its own mind, after giving due weight to the magistrate’s advantage in seeing and hearing the witnesses, and of course after giving weight to any findings on credibility which depend largely or on part on demeanour.
I think the duty of the Court in an appeal under s 42 of the Act is no different to the duty imposed on this Court under the repealed s 177 of the Justices Act; Taylor v Hayes (1990) 53 SASR 282.[7]
[5] [2002] SASC 155.
[6] [2005] SASC 447.
[7] [2002] SASC 155, [18]-[20].
In Fox v Percy[8] the High Court discussed the nature of an appeal by way of re‑hearing. Gleeson CJ, Gummow and Kirby JJ observed that the appellate court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance. It must, of necessity, observe the natural limitations that exist in the case of any appellate court proceedings wholly or substantially on the record. Those limitations include the difficulty of an appellate court in evaluating witnesses, the impracticality of the appellate court reading all the evidence and of not having time, over a long period, to reflect upon and consider the evidence carefully. The appellate court, nevertheless, is obliged to conduct a review and is obligated to weigh conflicting evidence and draw its own inferences and conclusions, having made due allowance for the fact that it has not heard the witnesses.
[8] (2003) 214 CLR 118.
In Warren v Coombes[9] the majority of the High Court said:
… “[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.” …[10]
[9] (1979) 142 CLR 531.
[10] (1979) 142 CLR 531, 551.
The majority in Fox v Percy,[11] in approving the statement in Warren v Coombes said:
After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.[12] (Footnotes omitted)
[11] (2003) 214 CLR 118.
[12] (2003) 214 CLR 118, 127 [26].
McHugh J referred to Warren v Coombes and made the following observations:
There is nothing in Warren v Coombes that is inconsistent with Abalos or Devries. Warren decided only that “whether the facts found do or do not give rise to the inference that a party was negligent” is not a matter that “should be treated as peculiarly within the province of the trial judge”. In earlier cases, Barwick CJ and Windeyer J had suggested that the findings of trial judges were entitled to special deference, even when the findings were based on inferences drawn from facts found or admitted. Warren denied that proposition. In a joint judgment, Gibbs A-CJ, Jacobs and Murphy JJ said:
“Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.”(Emphasis added.)
Thus, Warren was concerned with the approach of an appellate court in drawing inferences from facts admitted or found by the trial judge. Abalos and Devries were concerned with the approach of an appellate court where the trial judge had made a finding as the result of accepting the oral evidence of a witness that other evidence contradicted. The distinction between the two classes of case is fundamental and almost always decisive.[13]
[13] (2003) 214 CLR 118, 145-146.
In Weiss v The Queen,[14] the High Court observed that the task of an appellate court is an objective task, not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction.
[14] (2005) 158 A Crim R 133 [39].
There is no singular universally applicable criterion that can be formulated which identifies cases in which it would be proper for an appellate court to overturn a decision of a court at first instance. The appellate court is in as good a position as the court at first instance in drawing inferences from facts which are found to be proved.
Submissions of the appellant
The Solicitor-General, who appeared for the appellant, submitted that the conclusions of the trial Judge were not open on the evidence. He submitted that the issue in the case was identification and, although the trial Judge had to be satisfied beyond reasonable doubt about each element of the charge, he contended that the only reasonable inference to be drawn from the factual conclusions of the trial Judge, was that the respondent intended to rape the complainant. He submitted that, on the factual findings, any notion that this was a momentary indecent assault must be rejected. He submitted that the only reasonable conclusion was that the appellant intended to rape the complainant.
Submissions of the respondent
Counsel for the respondent accepted that the role of the appeal court is to re-assess the evidence and arrive at its own conclusion. He submitted that the principle applies to appeals against convictions, but that there are different considerations in respect of appeals against acquittal. He submitted that the appeal court should rarely interfere with a decision at first instance to acquit, and it is only in exceptional circumstances that the court will overturn an acquittal. He relied upon Thorogood v Warren[15] and Cadd¸ and submitted that the court should be more cautious in allowing Crown appeals, both against conviction and sentence.
[15] (1979) 20 SASR 156.
In Thorogood, the Magistrate refused an application of no case to answer by the defendant. The defendant did not give evidence. The Magistrate acquitted the defendant. The prosecution appealed and contended that if there is a finding of no case to answer and the defendant elects to call no evidence, then if there are material facts peculiarly within the defendant’s knowledge, and he does not give evidence, a conviction should follow. Zelling J rejected this argument. He observed that, before convicting, a magistrate must be satisfied beyond reasonable doubt of the guilt of the defendant. As to the role of an appellate court, Zelling J said:
The fact is that appellate courts have rightly been very reluctant to interfere with a verdict of acquittal based upon a reasonable doubt. A finding of reasonable doubt owes much to the atmosphere of the trial and the appraisal of the witnesses by the court at first instance, and neither of those things are readily susceptible to review by an appeal court.[16]
[16](1979) 20 SASR 156, 159.
Zelling J was dealing with findings based upon the assessment of a witness’ evidence. He was not concerned with the inferences to be drawn from facts which were found to be proved by the court at first instance. Furthermore, the decision must be considered having regard to the decisions of Fox v Percy and Warren v Coombes.
Cadd was an appeal against sentence from a decision of a Magistrate. Doyle CJ, with whom Duggan and Mullighan JJ agreed, applied the principle, in Everett v The Queen,[17] that prosecution appeals against sentence in a case that relates to a custodial sentence may only be justified in rare and exceptional circumstances. Principles relating to prosecution appeals against sentence are not applicable to prosecution appeals against conviction. If the appeal involves a review of the exercise of a discretion, then the principles applicable to an appellate court’s review of the exercise of a discretion are applicable: See House v The King.[18]
[17] (1994) 181 CLR 295.
[18] (1936) 55 CLR 499.
There may be occasions when appeals against conviction do raise questions of the exercise of a discretion. For example, if an issue arises about the admissibility of evidence, dependent upon the exercise of a discretion.
However, this is not such a case. The issue in this appeal is what inference is to be drawn from the established facts, and whether there was a reasonable doubt that A intended to rape Ms R. If the appellate court is of the opinion that the trial Judge was in error, then there is no requirement that the circumstances be exceptional for the acquittal to be set aside.
Conclusion
The trial Judge found that A assaulted the complainant in the following circumstances:
(i)at about 9.30 a.m. on 12 May 2005, as the complainant was walking along the footpath she was grabbed by the respondent from behind.
(ii)    he had his hand around her mouth and was holding her tightly.
(iii)he was holding her close against his body and she could feel his erection against her.
(iv)    the respondent said, “You’re going to fuck me now, cunt”.
(v)     he was manoeuvring her to a landscaped area of bushes next to the footpath.
(vi)the complainant attempted, without success, to attract the attention of the driver of a four-wheel drive vehicle which approached.
(vii) the respondent desisted and walked away across Golden Grove Road.

A denied the allegation. He said he was at home watching television and denied that he was the person who approached the complainant.
The Judge concluded that A was an unusual young man who lived a cloistered existence. He lacked worldliness and the usual indicators of social interaction and life experiences. The incident occurred in broad daylight on a major road next to the respondent’s house. A desisted when the complainant tried to attract the attention of a passer-by and went back to his house. The Judge found that this conduct indicated a lack of forethought, although there was a clear sexual element to the attack. I cannot agree. The conduct of A demonstrated a degree of pre-meditation. He attacked Ms R from behind. He must have been waiting for her whilst hidden from her view. The conduct demonstrates forethought. Even if it was open to the Judge to conclude that A lacked forethought, the question is whether, at the time he assaulted Ms R, A had the requisite intention to commit rape. Forethought is not an element of the charge. In that respect, the trial Judge misdirected himself.
To establish the offence, the intention to rape must be held at the time that the assault takes place. It can be momentary. The fact that an attacker desists if his victim resists does not demonstrate a lack of intention on the part of the defendant.
The Judge found that there was an assault accompanied by circumstances of indecency. There was a contemporaneous statement at the time of the assault asserting an intention to rape. The respondent had an erection, and he attempted to drag the complainant towards the nearby bushes.
In my view, the only reasonable inference to be drawn is that at the time of the assault the respondent intended to rape his victim. Although he may have changed his mind as soon as the victim resisted, the evidence establishes that he had an intention to indulge in sexual intercourse with the complainant when he grabbed her, pushed his body into her and attempted to push her into the bushes. The reasoning of the trial Judge demonstrates an error. The conclusions of the Judge were not open. The inference to be drawn from the proven facts must lead to the conclusion that A intended to rape Ms R.
I would allow the appeal, set aside the conviction of common assault and the sentence, and enter a verdict of guilty of assault with intent to rape. I would remit that matter to the Youth Court for sentence.