R v Cashion - [2013] SASCFC 14

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CASHION
[2013] SASCFC 14
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice David)
28 March 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
The appellant was convicted after a trial by judge alone of two counts of rape and five counts of unlawful sexual intercourse. The appellant and his father were jointly charged with sexual offences against the victim, C. Shortly before the trial commenced the appellant's father pleaded guilty. The prosecution, against the appellant's objection, proposed to adduce evidence on the appellant's trial of the sexual offending by the appellant's father against C, and the appellant's knowledge of that offending. This objection was dismissed by the Judge. The appellant appeals against his conviction.
(1) Whether the evidence of the offending of the appellant's father was wrongly admitted - (2) whether the verdict was unreasonable because of the insufficiency of detail, inconsistencies and improbabilities, in the testimony of C - (3) whether C's failure to complain of the appellant's offending casts a doubt over the reliability and veracity of her account.
Held: appeal dismissed - (1) the offending of the appellant's father was relevant and strongly probative, in that it explained and rebutted circumstances which would otherwise render C's account improbable - the Judge confined his use to the admissible purposes of this evidence and properly warned himself against any impermissible use - (2) any doubt which the deficiencies, inconsistencies and improbabilities might otherwise raise are capable of resolution by the advantage of the Judge in assessing the oral testimony - they are not of a magnitude or nature to cause this Court to interfere with the Judge's satisfaction of his assessment of C's testimony - (3) C's failure to complain must be assessed with regard to the circumstances - it is a matter of human experience, to which a tribunal of fact can have regard, that vulnerable children subjected to chronic abuse may develop psychological and physical dependencies, which prevent them from complaining.
Criminal Law Consolidation Act 1935 (SA) s 48, s 49; Evidence Act 1929 (SA) s 34P, s 34Q, s 34CB, referred to.
R v Cashion [2012] SADC 132, considered.

R v CASHION
[2013] SASCFC 14
Court of Criminal Appeal: Kourakis CJ, Sulan and David JJ

KOURAKIS CJ: The appellant was convicted after a trial by judge alone of two offences of rape and five offences of unlawful sexual intercourse. The victim of the offences, C, born…

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 Cashion

Details

AGLC: R v Cashion [2013] SASCFC 14
Case: [2013] SASCFC 14
Decision Date: 28 March 2013

CaseChat Overview and Summary

The appeal concerned a criminal conviction for sexual offences. The appellant, R v Cashion, sought to challenge the verdict on several grounds, including the alleged unreasonable or insupportable nature of the evidence, the improper admission or rejection of evidence, and the unreliability of the complainant's testimony. The matter was heard by the Supreme Court of South Australia, with Kourakis CJ, Sulan and David JJ presiding.

The primary legal issues before the court were whether the trial judge had erred in admitting and utilising evidence of the appellant's father's offending, whether the complainant's testimony was sufficiently unreliable to raise a reasonable doubt about the appellant's guilt, and whether the complainant's failure to complain about the offences was a significant factor that should have led to an acquittal. The court was also required to consider the application of section 34Q of the Evidence Act concerning the use of discreditable conduct evidence.

The court dismissed the appeal, finding that the evidence of the appellant's father's offending was relevant and strongly probative, explaining circumstances that might otherwise render the complainant's account improbable. The trial judge was found to have properly confined the use of this evidence to admissible purposes and warned himself against any impermissible use. Regarding the complainant's testimony, the court held that any perceived deficiencies, inconsistencies, or improbabilities were capable of resolution by the trial judge's advantage in assessing oral testimony, and were not of a magnitude to warrant interference. The court also noted that a child victim's failure to complain could be understood in the context of psychological and physical dependencies arising from chronic abuse. The court rejected the submission that section 34Q of the Evidence Act precluded the uses to which the evidence was put, finding that all uses outweighed the prejudicial effect and were distinct from impermissible uses.

Orders

Orders of the court

Held: appeal dismissed - (1) the offending of the appellant's father was relevant and strongly probative, in that it explained and rebutted circumstances which would otherwise render C's account improbable - the Judge confined his use to the admissible purposes of this evidence and properly warned himself against any impermissible use - (2) any doubt which the deficiencies, inconsistencies and improbabilities might otherwise raise are capable of resolution by the advantage of the Judge in assessing the oral testimony - they are not of a magnitude or nature to cause this Court to interfere with the Judge's satisfaction of his assessment of C's testimony - (3) C's failure to complain must be assessed with regard to the circumstances - it is a matter of human experience, to which a tribunal of fact can have regard, that vulnerable children subjected to chronic abuse may develop psychological and physical dependencies, which prevent them from complaining.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Counsel for the appellant submitted that s 34Q of the Evidence Act precluded use of discreditable conduct for any purpose other than that identified by the Judge in ruling that the evidence was admissible pursuant to s 34. Section 34Q of the Evidence Act provides:34Q—Use of evidence for other purposesEvidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use. I would reject the appellant’s submission. Section 34Q of the Evidence Act speaks of evidence which is “admissible for 1 use” and not to evidence which “was admitted for 1 use”. The purpose of s 34Q of the Evidence Act is to ensure that every use made of the discreditable conduct evidence is a use which satisfies the test for admissibility set in s 34P, namely that the probative value of the evidence for a particular use outweighs its prejudicial effect, and if the use relies on propensity, that it is strongly probative. It precludes, for example, reliance on discreditable conduct evidence, which is admitted for a non-propensity use because that use outweighs its prejudicial effect, to prove guilt through propensity if the evidence does not also have strong probative value. Section 34Q may also preclude reliance on an additional use which is not sufficiently distinct from an impermissible use. In this case all of the uses to which the evidence was put, both individually and collectively, outweigh the prejudicial effect of the evidence. The prejudicial effect of the appellant’s knowing involvement in David Cashion’s offending must be weighed in the context of the unavoidable prejudicial effect of the evidence on his own offending. Moreover, none of the uses rely on propensity and all are distinct from the impermissible use of the evidence. The Judge confined his use to the admissible purposes of the evidence and properly warned himself against any impermissible use.[4] This ground of appeal should be dismissed.[4] R v Cashion [2012] SADC 132 at [65]-[74].Unreliability of C The appellant submitted that C’s testimony about the offences of rape were so lacking in detail that this Court should have a reasonable doubt about the reliability and credibility of her evidence. I have read the evidence of C. The appellant’s criticism of C’s testimony concerning the offences of rape fails to have regard to C’s evidence that she was seriously affected by drugs given to her by the appellant. C testified that the appellant and David Cashion had given her alcohol and cannabis with pills crushed on top. She was carried into the bedroom by the appellant. The appellant also complained that C was not able to answer a great many questions in the course of her long cross-examination about matters of detail and surrounding circumstances. On the face of the transcript C’s evidence does not strike me as having a surprising or extraordinary lack of detail. C was relating events which occurred when she was aged between 12 and 16 years. She was giving the evidence many years after the events had occurred. In that period of time she had been separated from her mother and subjected, on her account, to sexual and physical abuse which can only have been psychologically and emotionally confusing and distressing for a girl of her age. At the same time C was also regularly smoking cannabis.

Decision

Reasons for decision

The appellant also drew attention to the evidence of JT to which I referred above in [24]-[25]. In my view JT’s testimony reads more naturally as if he was expressing uncertainty in his recollection of what C had said. In any event the Judge was in the best position to assess the significance of that matter.Conclusion My consideration of C’s testimony does not leave me in doubt about the appellant’s guilt. The appellant’s complaints, individually and collectively, raise matters which are commonly encountered in offences of this kind. They are not of a nature or magnitude which would cause me to interfere with the Judge’s satisfaction on his assessment of C’s testimony, that the offences were proved beyond reasonable doubt. The appeal should be dismissed SULAN J: I would dismiss the appeal. I agree with the reasons of the Chief Justice. DAVID J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.

Ratio Decidendi

Legal Principle Established

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