R v Barrowman

[2007] SASC 28

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BARROWMAN

[2007] SASC 28

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Layton)

6 February 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT

Appellant convicted after trial by judge alone of four counts of unlawful sexual intercourse and two counts of indecent assault - whether adequate reasons given for verdicts - whether verdicts unsafe and unsatisfactory - reasons not inadequate - no reason to doubt correctness of verdicts - appeal dismissed.

R v Keyte (2000) 78 SASR 68; R v Power (2003) 141 A Crim R 203; T v Medical Board (SA) (1992) 58 SASR 382; Fleming v The Queen (1998) 197 CLR 250, applied.
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; DW v The Queen [2004] ACTCA 22; (2004) 150 A Crim R 130; Papps v Police (SA) (2000) 77 SASR 210; R v Beard [2004] SASC 411, considered.

R v BARROWMAN
[2007] SASC 28

Court of Criminal Appeal:  Sulan, Vanstone and Layton JJ

SULAN J:

1. I would dismiss the appeal.  I agree with the reasons of Vanstone J.

   VANSTONE J: 

   Introduction

2. The appellant was convicted by a District Court judge sitting alone of four counts of unlawful sexual intercourse and two counts of indecent assault.  The offences occurred over a few months in 2004.  In each case the victim was a boy of 15 years, whom I shall call “Daniel”. 

3. The appeal is by leave insofar as it concerns a ground asserting that the verdicts were unsafe and unsatisfactory and could not be supported having regard to the whole of the evidence.  However upon the appeal hearing, counsel for the appellant sought to argue a second ground, being a complaint that the trial judge “failed to give adequate reasons for the verdicts” and that he erred in his consideration of a number of factual contests.  It is to that second ground that almost all of the argument on the appeal was directed.  The respondent did not claim any embarrassment in meeting the new ground of appeal.  In any event the factual issues raised by both grounds were much the same.

   The principles

4. In R v Keyte (2000) 78 SASR 68 Doyle CJ, with whom Wicks J agreed, gave guidance as to the extent of the reasons required where a judge sat alone in a criminal matter. Doyle CJ observed at [54] that what was needed would vary from case to case. He said: “Different considerations might apply to matters of law and of fact, to a verdict of guilty and a verdict of not guilty.” Further, he said that it should not be assumed that the reasons for decision would replicate a summing up. His Honour observed that where the decision rested substantially upon the impression made by the witness, a detailed explanation for preferring the evidence of one witness to that of another was not required. In that case the trial judge failed to explain what relevance he found in evidence of uncharged acts, how evidence in respect of one count was used in proof of other counts and how he dealt with the issue of the complaint being delayed in circumstances where the appellant and complainant had had a relationship over some 14 years. It was the failure to outline the approach taken to these matters of evidence which led to the appeal being allowed.

5. In Keyte at [48] the Chief Justice referred with approval to a passage from the judgment of Kirby P in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 to the effect that what was required was not a “minute explanation of every step in the reasoning process” nor a “tedious examination of detailed evidence”, but rather a general and brief statement of the grounds upon which disputed factual questions were resolved. It follows that whether a particular factual issue need be mentioned and resolved will turn upon the importance of that issue in the context of all the issues in the trial.

6. The obligation upon a trial judge to give reasons for preferring one witness over another was examined in R v Power (2003) 141 A Crim R 203 by Perry J, with whose reasons Williams and Bleby JJ agreed. At [59] Perry J expressed the view that where a case rested on the impression made by the competing witnesses there was no requirement for a detailed explanation of the decision to accept the one over that of the other. He observed that there would be cases where little could be given by way of explanation.

7. The analysis of Perry J was cited with approval in the Federal Court in a joint judgment of Crispin P, Connolly and Selway JJ:  DW v The Queen [2004] ACTCA 22; (2004) 150 A Crim R 130. At [28] the Court preferred his Honour’s expression of the obligation to the arguably more demanding formulation in Papps v Police (SA) (2000) 77 SASR 210 at 218-219. Papps was a decision of the Full Court of this state.  To the extent that there is a difference, the preponderance of authority favours Power’s case.  R v Beard [2004] SASC 411, a decision of the Court of Criminal Appeal, cited Power’s case on this issue and took the same approach. 

   Adequacy of trial judge’s reasons

8. The appellant complains that inadequate reasons were given by the trial judge in respect of the various counts.  It is convenient to deal with those separately.  Then I shall turn to the complaints of a more general nature.

   Count 1

9. This count was an allegation of indecent assault.  Daniel gave evidence that he slept in the appellant’s bed at Fran Pearce’s house in Croydon and that he did not have a bedroom.  The appellant contended that this was inconsistent with Pearce’s evidence that the complainant had a separate room and, to her knowledge, did not occupy the appellant’s room.  The appellant complained that the trial judge dealt with this asserted inconsistency only by noting Pearce’s evidence that she was often at work during the day.  This was said to be inadequate as the offence allegedly occurred at night.

10. It is true that the trial judge did not deal with the evidence of Pearce on this issue in much detail.  However, that evidence did not ultimately go to the heart of the matter.  It was accepted by the complainant in evidence that there was another room made available for him to sleep in, but this does not bear directly on the question of whether he actually slept in the appellant’s bed on the night in question.  Pearce did not give evidence as to where the complainant actually slept.  All she could say was that she was not aware of the complainant sleeping in the appellant’s room.  There was no true inconsistency between the evidence of Pearce and that of the complainant in relation to count 1.

11. The judge’s conclusion on count 1 was necessarily based on assessments of their respective credibility as witnesses.  In accordance with the authorities mentioned above, I consider that the judge was not required to give a detailed explanation as to why he preferred the evidence of the complainant to that of the appellant.  The judge’s reasoning as to credibility was sufficient.

    Count 2

12. This count was an allegation of a “foursome” at the home of the appellant, involving Michael Dickson, Daniel, the appellant, and a fourth individual named “Aaron”.  Evidence as to this count was given by Daniel and also by Dickson.

13. The appellant complains that Daniel was intoxicated on the evening of the alleged incident, and that such intoxication was not dealt with by the trial judge in assessing his evidence.  The appellant further complains that there were inconsistencies as between the evidence of Daniel and Dickson regarding precisely who had sexual intercourse with whom, and as to the identity of “Aaron”.  It is contended by the appellant that the trial judge failed to deal adequately with these inconsistencies in his reasons.

14. The judge noted that Daniel became drunk on the night of the incident.  This was clearly relevant to an assessment of credibility.  However, I do not consider that the judge was required to mention it again when making his findings as to the credibility of the complainant.  The judge observed that there were several difficulties with Daniel’s evidence.  However, he concluded that Daniel was truthful as to the critical matters.  In the circumstances, the judge was not required to articulate in his reasons every factor that figured in his overall assessment of credibility.  As counsel for the respondent submitted, an express statement in the reasons for the verdicts to the effect that he found the complainant to be credible notwithstanding his intoxication would have added little.

15. Much the same may be said for the differences between the complainant’s evidence and that of Dickson.  None of these differences went to the actual offences alleged to have been committed by the appellant.  They related only to whether Dickson too had intercourse with the complainant and to the identity of the person Aaron.  The judge found that Dickson was mistaken in his identification of Aaron and this finding was clearly open to him.  I do not consider that Aaron’s identity was a matter of such importance that the judge was obliged to elaborate any further.  Again it is difficult to suggest what else might usefully have been added.

16. Likewise, the question of whether Dickson had intercourse with the complainant on this occasion does not directly bear on the charges.  The judge referred to it, but did not make a finding as to it.  Nor did he explain why it did not undermine his confidence in Daniel.  Plainly Dickson would have an interest in denying intercourse with the complainant.  In the context of the common accounts of Dickson and the complainant as to the appellant having oral intercourse with the complainant, I consider Dickson’s denial of having intercourse himself was not so important as to require the judge to expressly refer to it and analyse it in his reasons.

    Counts 4 and 5

17. These counts involved allegations that the appellant rubbed the complainant’s crotch in a car at Veale Gardens and then had oral sexual intercourse with him on the boot of the car.  The complainant gave evidence in support of the indecent assault but had no memory of oral intercourse.  On his account, he passed out after the indecent assault.  For proof of count 5, the prosecution relied upon the evidence of Dickson.  There were several other individuals at Veale Gardens on the night in question, including the witnesses Bell, Walsh and Colls. 

18. The appellant contended that there was inadequate consideration by the trial judge of the failure of the other individuals to support either Dickson’s or Daniel’s accounts.  The appellant further submitted that there was no consideration of the reliability of Daniel’s evidence as to count 4, having regard to his apparent intoxication – as demonstrated by his lack of memory of count 5 – nor of Dickson’s alleged intoxication by drugs when assessing his evidence as to count 5.

19. Although the evidence of the other witnesses such as Bell and Walsh did not expressly support the accounts of the complainant and Dickson, neither did it contradict them.  Bell in particular gave evidence of the appellant hugging and kissing the complainant in the back seat of a car.  This was broadly consistent with the account of the complainant.  Had the evidence of other witnesses been to the effect that the events described by Daniel and Dickson did not happen, then that would have warranted analysis in the judge’s reasons.  But the failure to see what occurred was consistent with the witnesses simply being elsewhere in the park at the relevant time.  There was no necessary inconsistency.  As the evidence was, I do not accept that it was incumbent on the judge to say any more by way of justification for accepting Daniel’s evidence of count 4 or Dickson’s evidence of count 5.  

20. What I have said about the intoxication of the complainant in relation to count 2 applies equally here.  Just as Daniel’s evidence of count 4 drew support from the independent witnesses, so in my view did Dickson’s account of count 5 gain some support from the evidence relating to count 4.  For that reason Dickson’s intoxication was of little moment.

    Counts 6 and 9

21. These counts related to alleged unlawful sexual intercourse with Daniel at the appellant’s home.  Evidence was given by Daniel as to both counts and by Dickson as to count 9.

22. The appellant noted that there was a difference between the evidence of Dickson and Daniel, which was referred to in the judge’s reasons.  It was submitted by the appellant, however, that the judge had failed to consider explicitly what was said to be the unreliability of both Dickson and Daniel as demonstrated in evidence relating to other counts.  In my opinion that was not required.  The judge expressed a conclusion as to Daniel’s general credibility observing that there were certain inconsistencies with other witnesses.  It was not necessary, when dealing with each count, to repeat every single matter going to his reliability.

    General matters

23. It was also contended by the appellant that the trial judge failed to analyse other evidence said to undermine Daniel’s credibility.  The appellant referred to the evidence of Paula Van Ruth to the effect that Daniel had denied to her in conversation that there was a sexual relationship between himself and the appellant.  Daniel acknowledged as much.  The reasons he advanced were that he feared she would insist that he left the appellant’s house, together with a wish to protect the appellant.  In my view Van Ruth’s evidence cut both ways.  Daniel’s denial was made in the context of his telephoning Van Ruth late at night asking to speak confidentially and complaining that the appellant was pressuring him to “be his boyfriend”, albeit without a sexual relationship.  I consider that this evidence tended to support Daniel’s account of the relationship.  Not surprisingly it was led by the prosecution.  If the judge failed to rely on it that could only assist the defence.

24. Additionally, the appellant put to Daniel and he acknowledged, that when he was still living with the appellant the police attended at the house and asked questions about his relationship with the appellant.  He denied that it was a sexual one.  The judge specifically referred to this evidence and the need for him to “weigh [it] up when assessing the credibility of [Daniel]”.  I do not consider more was required.

25. The evidence of school personnel, Robyn Ellis and Marianne Hoffman, was also raised.  Both gave evidence that Daniel never made a complaint of sexual misconduct or other impropriety on the part of the appellant during discussions about care arrangements.  This evidence did not go as far as an alleged denial to the witnesses that there was sexual misconduct.  Therefore it did not directly undermine the complainant’s credibility.  I do not consider that the trial judge needed to mention in his reasons every witness to whom Daniel might have, but did not, make a complaint.

26. The appellant also argued that there was inadequate consideration of the evidence that the complainant had a motive to fabricate evidence about the appellant.  Counsel pointed to some evidence that Daniel was being pressured into proceeding with these charges.  Then, several witnesses gave evidence about conversations with Daniel in which he allegedly expressed a motivation to falsely implicate the accused.

27. The judge acknowledged that the thrust of the cross-examination of Daniel was that he and others had conspired to make up the allegations against the appellant, and outlined in detail the evidence of the alleged fabrication.  The fact that the judge outlined this evidence demonstrates that he understood its import to the defence and weighed it in his overall assessment of Daniel’s credibility.  In my view, nothing further was required.

28. Finally, the appellant contended that the trial judge had not properly considered the defence evidence put forward to explain the appellant’s interest in Daniel and the nature of their relationship.  In essence the appellant’s evidence was that he met Daniel through his work at an hotel and he offered him accommodation so that Daniel could leave his violent “live-in” relationship.  He said he saw Daniel as a young friend in trouble and chose to help him.  He had acted in a similar way to help other young persons.  In particular the appellant asserted there was a lack of foundation for the judge’s finding that the appellant was “disingenuous” in asserting that he was merely the complainant’s guardian.  What the judge said was this:

    I found the accused to be a most unimpressive witness.  And I found the accused’s assertions that he was merely the guardian of [Daniel] to be disingenuous.  He would take [Daniel] who was aged 15 to bars and hotels.  He took him to parties where ecstasy was consumed and to Veale Gardens where at the very least ecstasy was consumed.  The fact that he may have assisted [Daniel] in his school is all very well but that is not inconsistent with him behaving sexually towards him.

    I consider these observations were open to the judge, irrespective of the appellant’s purpose in leading evidence sketching the relationship.  No doubt the relationship had its complexities, including real affection going both ways, but I do not think the judge was required to analyse it.

29. The appellant’s conduct was clearly hard to reconcile with the role of a responsible guardian and left it open to conclude that his interests were, likewise, other than those of a mere guardian.

30. I consider that the complaint of inadequacy of reasons is not made good.

    Safety of verdict

31. The complaint that the verdicts are unsafe and unsatisfactory rests on the same factual arguments with which, it is put, the judge failed to adequately deal.  I have considered those arguments afresh in the context of all the evidence.  In particular I have made my own assessment of the evidence of the complainant and the appellant.  My reading of Daniel’s evidence suggests that it was compelling.  No doubt Daniel is an unusual young person with a life experience far more extensive than that of most persons of his age.  However, notwithstanding counsel’s arguments, I consider that there is no reason to doubt the correctness of the verdicts.

    Conclusion

32. It seems clear that a contention that a judge has failed to give adequate reasons is a matter of law:  T v Medical Board (SA) (1992) 58 SASR 382; Fleming v The Queen (1998) 197 CLR 250; Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68. Therefore leave to appeal on this ground is not required.

33. However, for the reasons I have given this ground fails.

34. Further, I am not persuaded that the verdicts are either unsafe or unsatisfactory.

35. The appeal must be dismissed.

    LAYTON J:

36. I would dismiss the appeal.  I agree with the reasons given by Vanstone J.