R v A, GP

[2012] SASCFC 81

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v A, GP

[2012] SASCFC 81

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice Vanstone and The Honourable Justice David)

5 July 2012

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT

Appellant found guilty of three counts of indecent assault by a judge sitting alone - appeal against conviction - whether judge erred in admitting evidence of initial complaint - whether judge erred in use of evidence of the date when the complaint was made to the police - whether the conviction on count 3 is unsafe and unsatisfactory.

Held: appeal dismissed - evidence of the victim's complaint was admissible under s 34M(4) of the Evidence Act 1929 (SA) not only to demonstrate consistency of conduct, but also to provide information as to how the allegation first came to light - the judge's use of the date of complaint could not have made any difference to the judge's evaluation of the evidence as a whole - the appellant's conviction on count 3 was not unreasonable.

Evidence Act 1929 (SA) s 34M, referred to.

R v A, GP
[2012] SASCFC 81

Court of Criminal Appeal:  Nyland, Vanstone and David JJ

1. NYLAND J:          I agree that the appeal should be dismissed for the reasons expressed by Vanstone J.

2. VANSTONE J:     The appellant was convicted in the District Court by a judge sitting alone for three counts of indecent assault committed upon his daughter when she was under ten years of age.

3. Three grounds come before this Court for consideration.  The first of those concerns a matter of law.  Grounds 3 and 5 are grounds containing mixed questions of law and fact and permission to appeal on those grounds was previously granted.  The appellant does not renew his application for permission to appeal on what were grounds 2 and 4.

   Background

4. The complainant, “J”, was born in early 1992.  Her mother and the appellant were then in a de facto relationship.  They separated when J was about two years of age.  In 2000 and 2001, the appellant had access to J on every second weekend.  By then the appellant and J’s mother lived in separate towns and J would travel to the appellant’s town and stay with him at his home during the access visits.

5. J’s evidence was that when she stayed with him she slept in the appellant’s bed and that is where the offences were said to have occurred.

6. Count 1 was fixed in time by reference to the occurrence of the Royal Adelaide Show to which the appellant took J.  In evidence she said that on the night before going to the Royal Show she awakened to find the appellant pulling down her pyjama pants and touching her in the areas of her bottom and vagina.  That incident came to an end when she started crying and he told her not to tell her mother because he would…