R v B, P

Case [2016] SASCFC 30

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v B, P

[2016] SASCFC 30

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Bampton)

22 March 2016

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - POSSESSION FOR SALE OR SUPPLY - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES

Appeal against conviction and antecedent refusal of Judge Chivell to grant a permanent stay of proceedings.

The appellant was charged on an Information heard in the District Court on five counts of unlawful sexual intercourse. The appellant was convicted on the first three counts. The jury was unable to reach a verdict on the last two counts.

The appeal was against those three convictions and the refusal of an application for a permanent stay of proceedings. The appellant contended that he had been denied a fair trial due to the delay of 13 years between the original complaint and the institution of the prosecution. He argued that due to inconsistencies in the testimonies of the victim, that the verdicts of guilty could not have been supported by the evidence.

Held per Kourakis CJ (Kelly and Bampton JJ agreeing), dismissing the appeal:

1.    The proceedings were not an abuse of process nor oppressive;

2.    Judge Chivell was right to refuse the application for a stay;

3.    The convictions were supported by the evidence;

4.    The verdicts were not unsafe, unsatisfactory or unreasonable.

Jago v District Court (NSW) (1989) 168 CLR 23; Gill v The DPP (1992) 64 A Crim R 82; R v Lane  (Full Federal Court, 19 June 1995, Unreported); R v Glennon (1992) 173 CLR 295; Attorney-General’s Reference (No 1 of 1990) (1992) 95 Cr App R 296; R v Sawoniuk [2000] 2 Cr App R 220; Police v Pakrou (2008) 103 SASR 124 ; Duncan v Crews (2001) 161 FLR 250; Williams v Spautz (1992) 174 CLR 509; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256, considered.

R v B, P
[2016] SASCFC 30

Court of Criminal Appeal:  Kourakis CJ, Kelly and Bampton JJ

  1. KOURAKIS CJ:        The appellant was charged on an Information heard in the District Court on five counts of unlawful sexual intercourse.  Counts 1, 2 and 3 alleged digital penetration and counts 4 and 5 penile penetration.  The victim, V, was the niece of the appellant’s wife, C.  The offences occurred between 1990 and 1995 when V was being cared for by C and the appellant in their home.  V, who was born in 1985, was aged between five and nine years at the time of the alleged offending.

  2. Police in South Australia first became aware of V’s complaint in 1999 when taking a statement from V about sexual offences committed by the appellant against…

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R v B, P [2016] SASCFC 30
Case
[2016] SASCFC 30
Decision Date

CaseChat Overview and Summary

The appeal concerned convictions for sexual offences against a child. The appellant argued that the verdicts of guilty could not be supported by the evidence, and that the proceedings constituted an abuse of process due to a significant delay in prosecution. The court was required to determine whether the evidence was sufficient to sustain the convictions, and whether the delay in bringing the charges prejudiced the appellant or otherwise rendered the proceedings an abuse of process.

The court considered the appellant's argument that the delay in prosecution compromised the jury's ability to evaluate the evidence. However, the court found that the delay did not materially undermine the victim's evidence, and that any doubt arising from inconsistencies was capable of being removed by the weight of her testimony. The court also found that the delay was not part of a calculated strategy of oppression, and that the police's secondary role in taking an initial statement for another jurisdiction likely contributed to the delay. Ultimately, the court concluded that the convictions were supported by the evidence.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant argues that in those circumstances the verdicts of guilty cannot be supported by the evidence. The proceedings were not an abuse of process. The failure of the police to prosecute the appellant was probably attributable to their secondary role in taking a statement for the Northern Territory police. There was no evidence that the delay was part of a calculated strategy of oppression. The delay did not compromise the jury’s capacity to evaluate the evidence. The convictions were supported by the evidence. The inconsistencies did not materially undermine V’s evidence. In any event, any doubt arising out of them was capable of being removed by the weight of her testimony.Background information Between 1990 and 1996 V and her mother, H, lived in Adelaide’s southern suburbs not far from the appellant’s home in Hackham. V testified that all of the charged offences in South Australia occurred at the appellant’s home when the appellant and C were caring for her whilst her mother was working. The appellant and C moved to Darwin in 1994. V and H moved to Darwin in 1996, where they stayed with the appellant for some six weeks, before moving into their own home. They remained in Darwin until late 1998 to early 1999 when they returned to live in Adelaide. On 15 December 1998, the day before V and H left to travel to South Australia, V made a statement to police in Darwin in which she alleged that the appellant had committed a number of sexual assaults against her, including penetration of her vagina, while in the Northern Territory. V was 13 years and 11 months when she made the statement. On the same occasion V described three instances of offending committed in South Australia. She described the appellant:· taking V from a bedroom in which where she was getting dressed into his bedroom and placing her on a water bed and removing her pants (the bedroom incident); and· the appellant hugging her after sitting her down on a large table in his painting studio (the painting studio incident); and· unzipping her pants after sitting her down on a large chopping board on wheels (the chopping board incident). V did not tell the police that any penetration occurred on those occasions but in other respects the incidents coincide with counts 3, 4 and 5 respectively. On 1 July 1999 V was interviewed in South Australia by Constable Cunningham of the South Australia Police Sexual Assault Section at the request of the Northern Territory police. V disclosed to Constable Cunningham more sexual offending which she had not mentioned to the Northern Territory police. For example, she alleged that the appellant indecently assaulted her on a camping trip in the Northern Territory. V also disclosed that digital penetration had occurred in South Australia during the bedroom incident. At the time she took the statement, Constable Cunningham made a note that V ‘has very little memory of offences and does not really know why she has attended SAS’. On 26 October 1999 charges were laid in the Northern Territory against the appellant alleging three counts of indecent dealing and one of rape. The appellant pleaded guilty to one count of indecent dealing and the other charges were withdrawn. A suspended sentence of four months imprisonment was imposed on 25 July 2002. V was just over 17 years of age at the time.

Evidence

Evidence Before The Court

In a statement made to police on 2 May 2014, V explained that she did not formally complain to police about the offences committed in South Australia until 2012 because:… at the time of the court case in the Northern Territory and for years after I was feeling extremely let down by the Justice system and I wasn’t up for the emotional stress to make another report in another state. At that time there was no way I [was] going to do this all over again to have the same outcome, by outcome I mean that I walked away from the Northern Territory Court process feeling unsupported and extremely upset. I was too young and the experience was completely overwhelming it was just too much. If I wasn’t ready in the Northern Territory to go through with the court process there was no way at that time that I was ready to do it in South Australia either.It was always in the back of my mind that if I ever felt strong enough that I could come to the South Australia police and make an official report and statement. It was only after the birth of my son that I felt really strong enough to go to the South Australia police. After years and years of counselling and psychologists I realised that I couldn’t come to terms with what had happened to me and that my complaint against [PB] was incomplete until I made the report to the South Australia police.The evidence The offence charged in the first count occurred when V was about six years old. V testified that the accused approached her from behind when she was sitting at the dining table in his home. The appellant told her that he loved her. He then touched her around her vagina area before placing his finger inside her vagina. V described the appellant’s finger as going only part way in but that it did go further than the outer lips. Count 2 was alleged to have occurred in the shed at the appellant’s home. V and her cousin were playing in the shed when it went dark. When V found that he was no longer with her in the shed, she tried to leave but the appellant approached her from behind and hugged her. The appellant kissed her neck and placed his hand inside her pants and penetrated her vagina. Count 3 was the chopping board incident which was alleged to have occurred in the kitchen. V testified that the appellant lifted her onto a chopping board. He unzipped her pants and placed his finger inside her vagina. V testified that he again said that he loved her and asked if she reciprocated. Whilst assaulting her, the appellant stared at her as if trying to ‘connect with her’. The fourth count, on which the jury was unable to reach a verdict, was the painting studio incident. V testified that the appellant approached her from behind in the painting room and sat her up on a table. V testified that the appellant removed her pants and underwear, before an act of penile penetration. The incident came to an end when V’s aunt was heard calling from outside the house. The fifth count, on which again the jury was again unable to reach a verdict, was the bedroom incident. V testified that she had been dropped at the house early in the morning and got into bed with her cousin. V testified that when she awoke her cousin was no longer in the room and the appellant was standing at the bed. The appellant blocked her attempts to leave the room, forcing her into the appellant’s bedroom where he placed her on the bed. V testified that there was then digital and penile penetration. V recalled seeing a tub of Vaseline in the bedroom. C gave evidence that Vaseline was kept in the appellant’s and her bedroom.

Decision

Reasons for decision

The broader question of whether the delay in itself left some reason to doubt the guilt of the appellant was a matter which V’s testimony was capable of dispelling. I entertain no doubt on this ground.Conclusion I would dismiss the appeal. KELLY J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice. BAMPTON J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.

Ratio Decidendi

Legal Principle Established

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