Police v Rosales

Case [2017] SASC 118

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v ROSALES

[2017] SASC 118

Judgment of The Honourable Justice Peek

15 August 2017

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED

MAGISTRATES - HEARING - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - DIRECTIONS TO JURY

MAGISTRATES - GENERALLY - POWERS AND DUTIES - REASONS

Appeal against a finding of guilt of indecent assault.

The appellant was found guilty by a Magistrate of indecent assault of Ms S, with whom he worked at a nursing home. Responding to a defence request, the prosecution provided further written particulars of the indecent assault as “… he grabbed me from behind … around my shoulders and slid his arms down and then caressed my breasts with his hands and said, “They are firm””.  Ms S gave evidence that, while they were alone in a kitchenette, the appellant stroked Ms S’ hair, attempted to kiss her on the lips, and then, while standing close behind her, placed his hands on her breasts and said “they were firm”.

Shortly after the incident, Ms S complained to several persons including her boyfriend, mother, and three other employees of the nursing home. Each gave evidence that she was visibly distressed at the time.

The defence case relied on inconsistencies between the evidence of Ms S and the evidence of the complaint witnesses; evidence of the appellant’s good character; and evidence of the appellant’s denials in his police interview.

The grounds of appeal asserted that the Magistrate erred in: her consideration of the evidence of the appellant’s good character; failing to direct herself pursuant to s 34R of the Evidence Act 1929 in relation to the appellant’s alleged discreditable conduct towards Ms S immediately before the offence (being the stroking of the hair and attempt to kiss her on the lips); failing to adequately direct herself, and provide any reasons for her findings in relation to the defendant’s denials of guilt; and in finding that the appellant’s guilt had been proved beyond reasonable doubt.

Held (granting an extension of time, dismissing the appeal):

(1) The evidence of the appellant’s conduct immediately prior to the particularised offending was relevant and admissible as part of the res gestae, and was not received pursuant to s 34P. It was not objected to at trial. The Magistrate did not err in not directing herself pursuant to s 34R of the Evidence Act 1929.

(2)     The Magistrate gave herself correct directions as to both the defendant’s denials in the interview and the good character evidence, and was permitted to be satisfied beyond reasonable doubt of the guilt of the appellant on the basis of the evidence of Ms S notwithstanding such evidence.

(3)     The Magistrate correctly dealt…

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Police v Rosales [2017] SASC 118
Case
[2017] SASC 118
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CaseChat Overview and Summary

In Police v Rosales, the appellant appealed against his conviction and sentence on various grounds, including the handling of evidence of his good character, directions to the jury, and the assessment of his denials to police. The Supreme Court of South Australia reviewed the appeal to determine if there was a miscarriage of justice. The court considered whether the magistrate correctly applied the principles concerning good character evidence, whether there was a misdirection or non-direction regarding the jury's consideration of the appellant's prior good character, and whether the magistrate erred in assessing the appellant's denials to police.

The key issue was whether the magistrate properly considered the appellant's good character evidence in determining the likelihood of his guilt and the credibility of his denials to police. The court examined if the magistrate appropriately balanced the appellant's good character against the prosecution's evidence. The court also assessed if the magistrate's directions to the jury on the use of good character evidence aligned with statutory provisions and legal precedents. Furthermore, the court evaluated whether the magistrate's rejection of the appellant's denials to police was justified.

The court found that the magistrate had correctly outlined the two uses of good character evidence and had borne in mind the appellant's good character when considering the credibility of the complainant's evidence. The court concluded that the magistrate had not misdirected herself on the use of the evidence, as she had correctly applied the principles laid out in legal precedents. The court determined that there was no miscarriage of justice in the magistrate's handling of the evidence of the appellant's good character and upheld the conviction and sentence.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ground 1 of appeal was abandoned during argument. The other grounds raise a number of issues which I will consider in the following order:·evidence of the appellant’s prior good character (ground 3);·directions pursuant to Evidence Act 1929, s 34R(1) (ground 4);·rejection of the appellant’s denials to the police (grounds 5 and 6);·was the charge proven beyond reasonable doubt? (ground 7); and·evidence of distress (ground 2).GROUND 3: EVIDENCE OF GOOD CHARACTERGround 3: The Magistrate erred at paragraph [133] in her consideration of the evidence of the appellant’s good character. The Magistrate made a number of references to the evidence of the prior good character of the appellant. At the beginning of her judgment at [5] her Honour referred to the fact that the appellant called two good character witnesses. During her survey of the evidence of the prosecution witnesses, her Honour referred to positive evidence concerning the character of the appellant given by Ms Trewin at [42], [90] and Ms Barokah at [38], [90]. Her Honour then referred in detail to the evidence of the defence witnesses Ms Dalfson at [84] to [85] and Mr Japson at [86] to [89]. The Magistrate later stated:[129] The defendant led evidence of his good character from Mrs Dalfson and Mr Japson. Ms Dalfson appeared to be on friendly terms with both the defendant and the complainant. I accept in its entirety the voracity and reliability of Mrs Dalfson and Mr Japson’s evidence regarding the defendant’s good character. I accept that he was highly regarded and well-liked at the nursing home and highly regarded and respected as an honest person of good reputation in his social, sporting and spiritual circles. I accept that, on the basis of their contact with the defendant, they do not consider he would commit the alleged offence charged.[130] DS Spark gave evidence that the defendant has no prior criminal convictions and was cooperative in the police investigation. Mrs Trewin and Mrs Barokah spoke highly of the defendant and his good character in their evidence. I accept their evidence on this topic in its entirety.[131] I have borne in mind the defendant’s previous good character in considering whether the prosecution has proved the charge beyond reasonable doubt. I bear it in mind as a factor affecting the likelihood of the defendant having committed the alleged offence and in assessing the credibility of the explanations given by him at interview, which was led as part of the prosecution case without objection.[3] …[3] R v Trimboli (King CJ). Pausing there for a moment, one sees that the Magistrate had thus far correctly directed on the two limbs of good character evidence. Importantly in the present case (where the appellant had not given evidence at trial), her Honour correctly directed herself that the good character evidence was relevant to “assessing the credibility of the explanations given by him at interview”.[4] The Magistrate later concluded:[133] Although I accept the evidence of the defendant’s prior good character in its entirety, that evidence does not cause me to doubt the credibility and reliability of the complainant’s evidence regarding the alleged events leading up to and the subject of the charge. Having considered all the evidence, including the alleged conduct and words the subject of the charge and bearing in mind the defendant’s prior good character, I do not consider it a possibility that the complainant became confused or misinterpreted innocent conduct or an accidental touching as the conduct the subject of the charge.[4] King CJ in R v Trimboli (1979) 21 SASR 577 stated at 578: “The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused’s previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.” See also: Melbourne v the Queen (1999) 198 CLR 1.The appellant’s argument

Decision

Reasons for decision

PEEK J

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Ratio Decidendi

Legal Principle Established

Established by: PEEK J

The appellant’s argument is summarised in his summary of argument thus:[48] Whilst the Magistrate did refer at [131] to the two theoretical uses that could be made of the evidence of the appellant’s good character, she only referred to actually using that evidence in the following ways:[5]- The evidence of the appellant’s prior good character, “… does not cause me to doubt the credibility and reliability of the complainant’s evidence regarding the alleged events leading up to and the subject of the charge.”- Bearing in mind the evidence of the appellant’s prior good character, “I do not consider it a possibility that the complainant became confused or misinterpreted conduct or an accidental touching as the conduct the subject of the charge.”[49] The appellant submits that the Magistrate failed to use the evidence of his prior good character to consider the unlikelihood that he, a person of good character, would have acted in the way that was alleged, and therefore the unlikelihood that he was guilty.[50] The Magistrate ought not to have asked herself the question whether the evidence of the appellant’s good character caused her to doubt the credibility and reliability of the complainant’s evidence, but whether that evidence left her with a reasonable doubt about the appellant’s guilt.[6] [5] At [133].[6] R v P, S [2016] SASCFC 97, [86].Consideration As to paragraph 48 of the summary of argument, it is to be noted that at paragraphs [129] to [131] the Magistrate had directed herself correctly as to the two limbs of good character evidence to be borne in mind when considering whether the prosecution has proved the charge beyond reasonable doubt; there is no reason to think that her Honour then failed to take those factors into account when coming to her ultimate decision. The correct analysis of paragraph [133] is that her Honour was not here attempting to restate, yet again, the two limbs of good character evidence (and failing to adequately do so as is apparently submitted). Rather, the Magistrate at paragraph [133] correctly stated the conclusion she reached after having adopted the correct process she had previously delineated at paragraphs [129] to [131]. As to paragraph 49 of the summary, I simply observe that the bare allegation that the Magistrate failed to take something into account does not make it so. As to paragraph 50 of the summary, this was not a case of oath against oath. The evidence on oath of Ms S, if believed, was capable of proving each of the required elements of the charged offence[7] in circumstances where the appellant declined to give evidence on oath. However, the Magistrate was clearly well aware of two important matters. First, no less than proof beyond reasonable doubt would suffice. Second, the appellant was entitled to have his prior good character evidence taken into account in respect to both the unlikelihood that he would commit such an offence and the credibility of his denials to police in the tendered police interview. [7] Of course, the prosecution case depended on acceptance beyond reasonable doubt of that evidence.