R v C, M

Case [2014] SASCFC 116

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v C, M

[2014] SASCFC 116

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Stanley)

30 October 2014

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

EVIDENCE - GENERAL - RESPECTIVE FUNCTIONS OF JUDGE AND JURY - SUFFICIENCY OF EVIDENCE

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTION TO JURY

Appeal against conviction for aggravated indecent assault. 

The appellant, MC, taught at the high school attended by the complainant, AB.  She alleged that he there committed sexual offences against her on different occasions when she was a 14-16 year old student.  The prosecution case was that MC kissed AB (a “quick peck on the lips”) while exposing his penis (count 1); slid one hand into her underwear, felt her vagina, inserted one finger, and moved it about (count 2); took out his penis, and asked her to masturbate him, which she did, causing him to ejaculate (count 3); and took out his penis, which she took into her mouth for a short period (count 4).  The defence case was that none of these things happened.  The jury could not reach verdicts on counts 2, 3 or 4 but did reach a majority guilty verdict on count 1.  The appellant appealed on grounds including that the conviction is unsafe in that the jury majority may have been satisfied of a kiss having occurred but may not have been satisfied of the alleged accompanying act of exposing the penis, and that therefore the verdict might not reflect a finding beyond reasonable doubt that the act of kissing was an indecent assault in the required sense of being an assault with a “sexual connotation”. 

Held per Peek J (allowing the appeal):

1.  The offence of indecent assault requires proof of an element of “sexual lewdness”, often referred to as a “sexual connotation”.

2.  The effect of the prosecutor’s address was not unlikely to have been interpreted by the jury as a direction that they could, and should, convict the appellant on count 1 simply on the basis that a “quick peck on the lips” given by an adult male school teacher to a 15 year old female student necessarily involved sexual lewdness and thereby constituted an indecent assault irrespective of whether they were satisfied beyond reasonable doubt that he had exposed his penis.

3.  The trial Judge’s summing up had an unacceptable tendency to suggest to the jury that a conviction on count 1 could be founded upon satisfaction beyond reasonable doubt that the “quick peck on the lips” had been established irrespective of whether he had exposed his penis and without reference to the necessity for proof of a “sexual connotation”. 

4.  In circumstances in which the jury were not prepared to convict in respect of the plainly indecent conduct alleged in counts…

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R v C, M [2014] SASCFC 116
Case
[2014] SASCFC 116
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, R v C, M, for indecent assault. The complainant, AB, alleged that during an incident in an office, the appellant kissed her on the lips and then exposed his penis to her, asking her to touch it, which she did. The appellant's primary complaint was that the jury's verdict was unsafe, as it was possible they were only satisfied that a kiss had occurred, but not that the alleged exposure of his penis was proven beyond reasonable doubt. This, the appellant argued, meant the verdict might not reflect a finding beyond reasonable doubt that the kiss itself constituted an indecent assault with the requisite sexual connotation.

The legal issues before the court were whether the jury's verdict was unsafe and unsatisfactory, and whether the trial judge had adequately directed the jury on the standard of proof in relation to the elements of the offence. Specifically, the court had to consider if the jury could have found the appellant guilty of indecent assault based solely on the kiss, without being satisfied beyond reasonable doubt of the accompanying act of exposing his penis, and whether such a finding would be legally sound.

The court reasoned that the complainant's evidence regarding the kiss was clear, but her recollection of the surrounding circumstances and the subsequent events was vague. She stated she was shy and embarrassed after the kiss, looking down, and then looked up to see the appellant's penis exposed. The appellant argued that if the jury was not satisfied beyond reasonable doubt that the penis was exposed, they could not properly conclude that the kiss was an indecent assault, as the sexual connotation relied on the exposure. The court noted that the complainant was between 14 years and 7 months and 15 years and 1 month old at the time of the alleged offence. The court considered the possibility that the jury might have been satisfied of the kiss but not the exposure, and whether this would still support a conviction for indecent assault.

The court allowed the appeal, quashed the conviction, and entered a verdict of acquittal. The court found that the jury's verdict was unsafe and unsatisfactory, as it was not possible to be sure that the jury had found all the necessary elements of the offence proven beyond reasonable doubt, particularly the sexual intent or connotation of the kiss, which was closely linked to the alleged exposure of the appellant's penis.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Thus, the appellant complains that the verdict is unsafe in that the jury majority may have been satisfied only of a kiss having occurred but may not have been satisfied that the alleged accompanying act by the appellant of exposing his penis was proven beyond reasonable doubt; in such circumstances, the verdict might not reflect a finding beyond reasonable doubt that the act of kissing was an indecent assault in the required sense of an assault with a sexual connotation. The evidence on count 1 The date of birth of the complainant (AB) was 19 November 1993 and she turned 15 years old on 19 November 2008. Count 1 is alleged to have occurred on some date between 1 July 2008 and 31 December 2008. AB may therefore be taken to have been aged between 14 years and seven months and 15 years and one month at the time of the kiss found to have occurred. As to the facts constituting count 1, AB stated in evidence:A… In that office he kissed me, a quick peck kind of kiss. That was the first time he kissed me in there and he also presented his penis to me and asked me to touch it and I did.…Q You remember how he took his penis out of his pants?ANo, I didn't see him take it. I was looking down because he had just kissed me and I was a bit shy and embarrassed so I was looking down and then when I looked up it was out. …QYesterday you told us about the incident in the office connecting LOTE6, you remember saying that?A Yep.Q Remember you said the accused gave you a quick peck kind of kiss?A Mm-hmm.Q Where did he kiss you?A On the lips. As appears from the cross-examination, AB was able to give little accompanying detail:Q Do you say it was your Italian class he was teaching on that occasion?A I don’t know, on that occasion.Q You can’t say why you were there on that occasion?A No.Q You can’t say how you got in there?A I walked in there.Q Did you walk in there with [MC]?A I don’t remember.Q Did you walk in there after [MC]?A I don’t remember.Q Did you walk in there before [MC]?A I don’t remember?Q What were you doing before this alleged kiss?A I don’t remember.Q What did you do after this alleged kiss?A Again I don’t remember.Q What time of the day was it?A I don’t remember.Q Where were you supposed to be at that time?A I don’t remember. Later, there was further cross-examination along the same lines:QOn this occasion when you say he produced his penis to you you say you just can’t remember the reason why you were in the office at all?A Yes.Q Do you think it unlikely or likely it was during the Italian class?A I’m not sure.QAnd you say that you don’t know how it was that you suddenly saw his penis, in other words you didn’t see him take his penis out of his trousers?A Yes.Q Why do you say that was, that you didn’t see that happen?ABecause I was looking down at the time because he had just kissed me and I was shy, so I was looking down and then when I looked up it was out.Q So you say he’s just kissed you?A Yes.QYou’re shy and you look down. When he kissed you he’d have to be close to you, yes?…AWell he was standing a little bit beyond the desk and then he stepped, he had his hands in his pockets, and he stepped in and gave me a quick peck and then stepped back again and I was embarrassed and that’s when I looked down.Q How long after that do you say that he produced his penis to you?A A few seconds, like maybe half a minute later or something. It was a short time.QSo when you say you were looking down, were you looking down at your feet or something were you?A Just down at my lap. I was leaning against the desk.Q Did he or you say anything on this occasion?A I don’t remember.Q You don’t remember anything that was discussed?A No, I don’t.Q Was the door open or closed to the office?A I don’t know.Q Did you close the door to the office?A No.Q Did he close the door to the office?A I don’t know, don’t think he did, but I don’t know.QAnd you don’t know if the classroom next door was being used for a class at all at the time?A No, I don’t know.Q After he, you say, presented his penis to you, what did you do?AI was a little bit taken aback, but I don’t remember the exact kind of chain of events, but I did end up holding it because he asked me to touch it and so I ended up holding it and that was about it. After a few seconds I stopped and that was the end of it.Q Then what happened?A I don’t remember.Q Did you go to a class?A I don’t remember.Q Did you have books with you?A I don’t remember. Counts 2 to 4

Decision

Reasons for decision

PEEK J BLUE J STANLEY J

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Ratio Decidendi

Legal Principle Established

Established by: PEEK J, BLUE J, STANLEY J

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