R v ADW

Case [2002] SASC 331

R v ADW

[2002] SASC 331

Court of Criminal Appeal:  Doyle CJ, Debelle and Williams JJ

  1. DOYLE CJ:          I have read the reasons of Williams J.  It is unnecessary for me to repeat the facts.

  2. I agree that the appeal should be allowed, that the conviction should be set aside and that a new trial should be ordered.  I agree generally with the reasons of Williams J.

  3. However, I wish to deal with the basis upon which the Court allows the appeal, for reasons that will become apparent.

    Facts

  4. M gave evidence, as did her mother, that M first told her mother about the alleged offences by the appellant about two weeks before a family meeting called to discuss the possibility of the appellant being given the custody of M’s younger brother.  However, M denied that her reason for raising the allegation was a concern that her brother might not be safe with the appellant.  Her explanation for raising the allegation at this time was this:

    “Because I was old enough to realise that I needed to tell someone and it had to be then.”

  5. On the other hand, M’s mother said that M raised the allegation in connection with M’s concern about her brother going to live with the appellant.  M’s mother also said that this occurred before the family meeting.

  6. The Judge’s finding that “these allegations surfaced” after the family meeting appears to be wrong.  As well, the Judge has not referred to the conflict between M and her mother over the context in which M raised the allegation.

  7. These are significant points.  If M and her mother had discussed the allegation before the family meeting, why did they not raise it at the meeting?  M was cross-examined to suggest that she had made up these allegations to prevent the appellant getting custody of M’s brother.  It was put to her that if the meeting had been told about the allegations, that might have prevented the appellant getting custody.  M said that she did not realise this.  When M’s mother was cross-examined about the failure to raise the allegations at the family meeting, she said in effect that there was no point in doing so.  When she and M got to the family meeting, departmental officials had obviously made up their minds already.

  8. The Judge did not miss the point that the allegation might have been fabricated to stop the appellant getting custody of M’s brother.  He referred specifically to the defence contention on this point, noting that the fact that M made a complaint to the police about five days after the family meeting, and noting that M was a child who might be “easily influenced and manipulated by her mother”.  Accordingly, although the Judge made an error about the sequence of events, and did not address the conflict between M and her mother, or the failure to raise the allegations at the family meeting, he certainly considered the suggestion that M had fabricated her evidence to…

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R v ADW [2002] SASC 331
Case
[2002] SASC 331
Decision Date

CaseChat Overview and Summary

The appellant in this case has appealed against his conviction by the District Court, which found him guilty of one count of unlawful sexual intercourse with his daughter, M, and one count of inciting a child to commit an indecent act. The appellant’s daughter, M, was nine years old at the time of the alleged incidents, which occurred during a party in a country town over the Christmas/New Year holiday period of 1993-1994. The case was not reported to the police until November 2000, when M was 16 years old. The trial judge found the appellant guilty based on the testimonies of M and her mother, despite the appellant's defence that M fabricated the allegations to prevent him from gaining custody of her younger brother.

The primary legal issues in this appeal revolved around whether the trial judge had misdirected himself in relation to the timing of when the allegations were first raised and whether the judge had adequately considered the potential fabrication of the allegations by M to influence custody arrangements. The appellant argued that the judge's failure to address these critical points constituted a miscarriage of justice. Additionally, the appeal examined the role of the appellate court in reviewing factual findings made by the trial judge in a case tried without a jury.

The court concluded that the misdirection by the trial judge was material and resulted in a failure to adequately consider a significant aspect of the defence case. The appellate court found that had the case been tried with a jury, the misdirection might have led to a miscarriage of justice, warranting the setting aside of the verdict. In this instance, the court decided to allow the appeal, set aside the conviction, and order a new trial. The appellate judges emphasised that not every misdirection in a trial by judge alone would necessarily lead to interference by the appellate court, but in this case, the misdirection was deemed to have caused a miscarriage of justice. The court's decision underscored the importance of correctly addressing defence arguments and ensuring that the trial judge properly considers all aspects of the case to avoid potential miscarriages of justice.

Orders

Orders of the court

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Background

Background to the litigation

However, I wish to deal with the basis upon which the Court allows the appeal, for reasons that will become apparent.Facts M gave evidence, as did her mother, that M first told her mother about the alleged offences by the appellant about two weeks before a family meeting called to discuss the possibility of the appellant being given the custody of M’s younger brother. However, M denied that her reason for raising the allegation was a concern that her brother might not be safe with the appellant. Her explanation for raising the allegation at this time was this:“Because I was old enough to realise that I needed to tell someone and it had to be then.” On the other hand, M’s mother said that M raised the allegation in connection with M’s concern about her brother going to live with the appellant. M’s mother also said that this occurred before the family meeting. The Judge’s finding that “these allegations surfaced” after the family meeting appears to be wrong. As well, the Judge has not referred to the conflict between M and her mother over the context in which M raised the allegation. These are significant points. If M and her mother had discussed the allegation before the family meeting, why did they not raise it at the meeting? M was cross-examined to suggest that she had made up these allegations to prevent the appellant getting custody of M’s brother. It was put to her that if the meeting had been told about the allegations, that might have prevented the appellant getting custody. M said that she did not realise this. When M’s mother was cross-examined about the failure to raise the allegations at the family meeting, she said in effect that there was no point in doing so. When she and M got to the family meeting, departmental officials had obviously made up their minds already. The Judge did not miss the point that the allegation might have been fabricated to stop the appellant getting custody of M’s brother. He referred specifically to the defence contention on this point, noting that the fact that M made a complaint to the police about five days after the family meeting, and noting that M was a child who might be “easily influenced and manipulated by her mother”. Accordingly, although the Judge made an error about the sequence of events, and did not address the conflict between M and her mother, or the failure to raise the allegations at the family meeting, he certainly considered the suggestion that M had fabricated her evidence to prevent the appellant from getting custody of M’s brother. The Judge accepted M as a witness of truth. He relied on her demeanour, and on the careful way in which she answered questions. He considered the significance of the delay in making the allegations. As I have said, he considered the suggestion that M had fabricated her allegations to prevent the appellant from getting custody of her brother. The Judge was clearly impressed by M. In finding the charge proved beyond reasonable doubt, the Judge relied on evidence from M’s mother and from another woman, each of whose evidence tended to support M’s evidence about the incident in question, although that support was circumstantial only.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Because of that decision it is not necessary to embark upon the important issue of the role of this Court, on an appeal against conviction after a trial by judge alone, in relation to findings of fact by the trial judge. It remains to be determined whether, in such a case, this Court can and should review those findings of fact, and on what basis.Conclusion I am satisfied that the misdirection was a material one. It resulted in the Judge failing to consider a significant aspect of the defence case. Had the case been tried with a jury, and had the trial judge similarly misdirected the jury, I consider that this Court would have set aside the verdict on the grounds that there had been a miscarriage of justice. I consider it is appropriate to do so in the present case. I wish to emphasise that I so conclude only because the misdirection means that in a substantial respect the Judge has failed to deal with the defence case at trial. I do not accept that every misdirection on the facts in a trial by judge alone, or even any misdirection that might possibly have affected the ultimate finding of guilt, would necessarily provide a basis for this Court to interfere. And, as I have already emphasised, nor do I accept that it is necessarily the function of this Court to review findings of fact to determine whether or not they were correctly made. But, in the present case, I am satisfied that what has occurred amounts to a miscarriage of justice. DEBELLE J: I have had the advantage of reading the reasons of the Chief Justice and of Williams J. I agree with the substance of them. I agree that the appeal should be allowed, that the conviction should be set aside and that a new trial should be ordered. WILLIAMS J: This is an appeal against conviction upon one count of unlawful sexual intercourse with a person under 12 and one count of inciting a child to commit an indecent act. The appellant was tried in the District Court by Judge alone who on 19 April 2001 delivered ex tempore reasons for conviction. The victim of each of these offences was the appellant’s natural daughter M who at the time of the offences was aged nine. Each count arises out of an alleged incident in a country town at a party during the Christmas/New Year holiday period of 1993-1994. The matter was not the subject of a complaint to police until 4 November 2000 when the victim was aged 16. Upon the prosecution case the victim together with her father (the appellant) and mother (C) attended a social gathering at the home of J and his partner R. M went to the toilet during the afternoon but accidentally found that it was already occupied by the appellant. According to M, the appellant placed two of his fingers in M’s vagina and then caused her to place her own fingers in her vagina. The appellant then released his daughter who was found by her mother near the toilet upset and crying. M’s mother saw the appellant emerge from the direction of the toilet. Soon after this the appellant, C, M and her brother X together left the gathering prematurely by reason of M’s distress. The appellant and C had separated at the time of this incident but nevertheless the appellant, his wife and two children attended this function together.

Ratio Decidendi

Legal Principle Established

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