R v C, AP - [2006] SASC 334

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v C, AP
[2006] SASC 334
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Layton and The Honourable Justice David)
8 November 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - TRIAL HAD BEFORE JUDGE WITHOUT JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED
Trial by Judge alone - Appellant convicted of three counts of incest and one count of indecent assault - Appeal against conviction - Whether verdicts alleged unreasonable and not supported on evidence, or unsafe and unsatisfactory - Whether trial Judge gave adequate reasons - Alleged inconsistencies and implausibility of evidence - No recent complaint - Finding on credibility of complainant and accused - Use of uncharged acts - Appeal dismissed.
M v The Queen (1994) 181 CLR 487; R v Nieterink (1999) 76 SASR 56, applied.
Jones v The Queen (1997) 191 CLR 439; R v C, AP [2006] SADC 53; R v Hetherington (unreported, CCA(SA), Nyland, Mohr and Debelle JJ, 24 August 1994); R v Keyte (2000) 78 SASR 68, discussed.
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378; Papps v Police (2000) 77 SASR 210; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, considered.

R v C, AP
[2006] SASC 334
Court of Criminal Appeal: Sulan, Layton and David JJ

SULAN J. I would dismiss the appeal. I agree with the reasons of Layton J.
LAYTON J. This was an appeal against convictions found against the appellant upon a trial by Judge alone.[1] The appellant was charged with five counts of sexual offences against his daughter (“SLC”) between the period 12 September 1994 to 31 December 2004. SLC was just 3-4 years of age when the offending began and the last offences occurred when she was aged 13. The appellant was found guilty of all counts save the first, on which the trial Judge was not satisfied beyond reasonable doubt.
[1] R v C, AP [2006] SADC 53.
A number of grounds were argued on appeal, but the prime argument was Ground 3, namely that the verdicts on Counts 2–5 were unreasonable and cannot be supported by the evidence or were unsafe or unsatisfactory. This argument was based on alleged inconsistencies and the implausible nature of the evidence of SLC.
The Charges
The appellant was charged with the following offences:
Count 1
Unlawful Intercourse pursuant to s 49(1) of the Criminal Law Consolidation Act 1935 (CLCA) namely that between 13 September 1994 and 15 September 1996 he had vaginal sexual intercourse with SLC being a person under the age of 14 years.
Count 2
Incest pursuant to s 72 of the CLCA in that between 13 September 2002 and 15 September 2004 he had…

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 R v C, AP

Details

AGLC: R v C, AP [2006] SASC 334
Case: [2006] SASC 334
Decision Date: 8 November 2006

CaseChat Overview and Summary

In the matter of R v C, AP, the appellant was convicted of three counts of incest and one count of indecent assault, and appealed against the conviction. The case was heard in the court of appeal, which was required to decide whether the verdicts were unreasonable, not supported on the evidence, or unsafe and unsatisfactory. Additionally, the court needed to determine whether the trial judge gave adequate reasons, and whether there were inconsistencies and implausibility in the evidence presented.

The court considered the principles established in M v The Queen and Jones v The Queen, which set out the criteria for assessing the credibility of witnesses on appeal. In this case, the appeal hinged on Ground 3, which alleged that the verdicts were unreasonable and could not be supported by the evidence. The appellant's counsel argued that the convictions depended solely on the evidence of a single witness, who had provided inconsistent and incorrect evidence. However, the court found that the jury, having seen and heard the witnesses, was the appropriate body to determine guilt or innocence. The court also noted that the trial judge's reasons were adequate and that there were no significant inconsistencies or implausibility in the evidence.

The appeal court dismissed the appeal against conviction, finding that the verdicts were not unreasonable or unsupported by the evidence. The court acknowledged the advantage of considering the trial judge's reasons but emphasised that it was not bound to act upon their views of the credibility of the witnesses. Ultimately, the court concluded that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.

The court made no orders regarding the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It was appropriately conceded by Mr Charman, counsel for the appellant, that if Ground 3 could not be made out, then Ground 2 would similarly fail as it was subsumed in Ground 3. Further, that the outcome of Ground 3 was relevant to whether Ground 1 could be made out. Ground 3 - Verdict unreasonable, cannot be supported on the evidence, or unsafe and unsatisfactory In relation to Ground 3 Mr Charman submitted that the convictions depended solely upon the evidence of a single witness, namely SLC. It was submitted that SLC was shown to be incorrect in some important aspects of her evidence and that her evidence was inconsistent in material respects with the evidence of her brother, JC and her mother, KLA. In approaching matters concerning credibility of witnesses on appeal, the following principles in the High Court decision of M v The Queen[2] apply: ·Whether a verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence is a question of fact. The question which the court must decide by making its own independent assessment of the evidence, is whether, notwithstanding that there is evidence upon which a jury may convict, it might nonetheless be dangerous to allow the verdict to stand.[3]·This ground differs from a verdict which may be “unsafe or unsatisfactory”, which does not require that the verdict be unreasonable or incapable of being supported by the evidence. It must constitute a miscarriage of justice requiring a verdict to be set aside.[4]·The question which the appeal court must ask itself in relation to an allegation of “unsafe and unsatisfactory”, is whether the appeal court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In answering this question, the court must not disregard or discount that the jury is the body entrusted with determining guilt or innocence, or that the jury has had the benefit of having seen and heard the witnesses. On the contrary the court must pay full regard to those considerations.[5]·In most cases a doubt experienced by an appeal court will be a doubt which a jury ought also to have experienced.[6][2] (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ.[3] (1994) 181 CLR 487, 492-493.[4] (1994) 181 CLR 487, 493.[5] (1994) 181 CLR 487, 492-493.[6] (1994) 181 CLR 487, 494. These principles were later reinforced by the High Court in Jones v The Queen.[7][7] (1997) 191 CLR 439, Gaudron, McHugh and Gummow JJ, 450-451. In relation to a trial by Judge alone, an appellate court has the advantage of being able to consider the reasons of the trial Judge in the process of reviewing the evidence to determine whether the verdict is unreasonable, unsupported by the evidence, or unsafe and unsatisfactory. However, as this Court said in R v Hetherington,[8] the general principles of appeal should not be affected by the fact that an appellant was tried by judge alone.[9] Further the appeal court must have regard to the great advantage which the trier of fact has in seeing and hearing the witness, but is not bound to act upon their views of the credibility of the witnesses.[10][8] (1994) (unreported, CCA(SA), Nyland, Mohr and Debelle JJ, 24 August 1994). [9] Ibid.[10] R v Hetherington (1994) (Unreported, CCA(SA), Nyland, Mohr and Debelle JJ, 24 August 1994).

Decision

Reasons for decision

SULAN J (dissent) LAYTON J (dissent) DAVID J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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