Police v Scheving - [2011] SASCFC 155

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v SCHEVING
[2011] SASCFC 155
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Blue)
19 December 2011
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES - NECESSITY FOR FINDING TO BE CLEARLY WRONG
CRIMINAL LAW - EVIDENCE - COMPLAINTS
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IMPEACHMENT OF CREDIT AND ADMISSIBILITY OF EVIDENCE AS TO CREDIT - PRIOR INCONSISTENT STATEMENTS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - FAILURE TO PUT MATTER TO WITNESS
A Magistrate found the respondent guilty of the offence of indecent assault – the respondent appealed against the conviction and sentence to a single Judge of the Supreme Court of South Australia, who allowed the appeal against conviction, set aside the conviction, and substituted a verdict of not guilty – the Informant, the Police, was granted permission to appeal to the Full Court against the decision of the single Judge.
The victim was a beauty therapist who provided waxing and other services – the respondent engaged the victim for her waxing services – during the course of the waxing treatment, the respondent touched the victim twice down the side of her body, made a sexually provocative suggestion and was seen by the victim to be masturbating – the victim complained to a man working in an office next door to her salon – the victim complained to police the same day.
The issues on appeal were: (1) whether the Judge was correct in his finding that the Magistrate made an error of law in the manner in which he dealt with the evidence of the complaint by the victim, and with her upset demeanour, when she spoke to the man occupying the office next door immediately after the incident; (2) whether the Judge was able to draw an adverse inference about the reliability of the victim on appeal using an inconsistency between the contents of her appointment book, a price list and the victim’s statement to the police tendered on appeal (3) whether it was open to the Judge to draw other adverse inferences in relation to the victim’s credibility; and (4) whether the Judge’s conclusion that the conviction was unsafe and unsatisfactory was sustainable.
Held: (1) it was open to the Magistrate to conclude that what the victim said to the man next door, and her demeanour at the time, were consistent with the evidence she gave about what the respondent did; (2) the Judge could not use the inconsistency that he found to make an adverse finding about the victim’s credit when the inconsistency had not been put to her at trial; (3) the negative credit findings were based on adverse inferences that were not open to the Judge to draw; and (4) the conclusion that the conviction was…

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.

Continue reading Police v Scheving

Details

AGLC: Police v Scheving [2011] SASCFC 155
Case: [2011] SASCFC 155
Decision Date: 19 December 2011

CaseChat Overview and Summary

The appeal concerned a decision of a single Judge of the Supreme Court of South Australia, who had allowed an appeal against conviction by the respondent, Mr Scheving, and substituted a verdict of not guilty for an indecent assault conviction. The Informant, the Police, sought permission to appeal this decision to the Full Court. The original conviction had been made by a Magistrate.

The Full Court was required to determine whether the single Judge had erred in law by interfering with the Magistrate's findings of fact, particularly those based on the credibility of the victim. The central issue was whether the single Judge had correctly applied the principles governing appellate review of findings of fact, especially when those findings were based on the assessment of a witness's demeanour and reliability.

The Full Court allowed the appeal, setting aside the single Judge's orders and reinstating the Magistrate's decision. The Court reasoned that the single Judge had impermissibly re-evaluated the evidence and substituted his own view for that of the Magistrate, who had the advantage of observing the victim's testimony directly. The Full Court emphasised that an appellate court should only interfere with a judge's findings of fact, particularly those concerning credibility, if those findings are demonstrably wrong. In this instance, the single Judge had failed to demonstrate that the Magistrate's findings were clearly wrong, and had instead engaged in a fresh assessment of the evidence.

The Full Court ordered that the appeal against conviction be dismissed, meaning the original conviction by the Magistrate stood. The appeal against sentence, which had been outstanding, was remitted to a single Judge for determination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I would allow the appeal. I would set aside the Judge’s orders. I would substitute an order dismissing the appeal against the Magistrate’s decision. That leaves outstanding an appeal by Mr Scheving against his sentence. The appeal against sentence should be remitted to a single Judge. It would be convenient to remit the sentence appeal to a member of the Full Court. My reasons follow.Evidence Ms O carried on business as a beauty therapist at premises in an Adelaide suburb. At the relevant time she was the only person employed in the business. Mr Scheving made a telephone booking with her for a Saturday morning in January 2010. Ms O said that Mr Scheving made the appointment for “waxing”, which is the removal of body hair using wax strips. She said the booking was for waxing of the back and bottom. When Mr Scheving arrived she said that he asked for waxing of the chest as well. Waxing required that Mr Scheving remove his clothing. He did this. Ms O gave him a towel to cover himself. Mr Scheving lay flat on his stomach on a treatment table, and Ms O carried out the back waxing. She had placed the towel over the lower half of his body. Ms O then asked Mr Scheving to turn over. She held up the towel while he did so, then she placed the towel over his lower body. She waxed the tops of his shoulders and his chest. She began to wax his abdomen area. She then noticed a change in his demeanour. She said:He sort of started – his eyes started to move around the room quite a lot and I noticed he was shifting on the bed a lot as well so he was just laying there as he was when I was waxing his back. He was moving around slightly as well.Ms O felt anxious. She continued waxing Mr Scheving’s stomach. She was getting to the end of the treatment and thought she would complete it. While she was waxing his abdomen she noticed that Mr Scheving had pushed the towel down exposing his genitals. She said “… he was touching around the area at that stage …”. When asked what area he was touching she said:Around his penis however you know you never want to jump to conclusions about anything and I wasn’t hundred percent certain at that stage so I just continued finishing the wax. If it was at the beginning of the treatment I’d definitely perhaps would have you know perhaps been lot more wary but we were to the end of the treatment I turned around at one stage and I needed to get something and I felt something go down the side of my body and I thought oh.She said that the touch felt like “… somebody’s hand going down the side of my body”. She thought that perhaps the contact was inadvertent. She then said:… however when I turned around again for the last time because it was the end of the treatment I turned off my magnifying lamp which we have in our beauty salon and I turned back and he was masturbating with his left-hand and he then touched me again down exact same part of my body and then proceeded to ask me if I would take my top off for him.She said that his penis was erect. She said that she told him to stop it, and to put his clothes back on. She immediately left the room. She went to an office next door occupied by Mr Craig, whom she knew because he had worked next door for some time. She said that she was very upset and was crying. She told Mr Craig there was a man in the treatment room who was masturbating and that she was scared and that he was touching her. She asked Mr Craig to deal with him, and he went to her premises.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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