Police v A, TG

Case [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

  1. PERRY J:             In my view, the appeal should be allowed. I agree with the order proposed by Sulan J and substantially with his reasons.

  2. This is an appeal where there is no challenge by either party to the findings of fact made by the trial judge.

  3. 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.

  4. 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.

  5. Of course, this being a prosecution appeal, the substitution of an inference leading to a conclusion of…

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Police v A, TG [2006] SASC 299
Case
[2006] SASC 299
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CaseChat Overview and Summary

The appeal in Police v A, TG was brought by the Crown against an acquittal by the Youth Court of a youth charged with assault with intent to commit rape. The case was heard in the Supreme Court of South Australia. The central issue for the court was whether the trial Judge was correct in acquitting the youth of the more serious charge of assault with intent to commit rape, and whether there was a reasonable doubt that the youth intended to rape the complainant. The court was also required to consider the appellate court's role in reviewing decisions of courts of summary jurisdiction, particularly in relation to Crown appeals against acquittal.

The court held that the trial Judge had erred in acquitting the youth of the more serious charge. The Supreme Court found that the evidence established that the youth had intended to rape the complainant at the time of the assault. The court held that forethought is not an element of the offence of assault with intent to commit rape. The intention to rape must be held at the time the assault takes place, and can be momentary. The fact that the youth desisted when the complainant resisted did not demonstrate a lack of intention. The Supreme Court concluded that the only reasonable inference to be drawn from the established facts was that the youth intended to rape the complainant. The trial Judge's reasoning demonstrated an error and his conclusions were not open to him on the evidence. The appeal was allowed, the conviction for common assault and the sentence were set aside, and a verdict of guilty of assault with intent to rape was entered. The matter was remitted to the Youth Court for sentencing.

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

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.

Ratio Decidendi

Legal Principle Established

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