R v Clifford - [2004] SASC 104

R v CLIFFORD
[2004] SASC 104
Court of Criminal Appeal: Perry, Bleby and Sulan JJ

PERRY J: I agree that the appeal should be dismissed for the reasons given by Bleby and Sulan JJ in their joint judgment.
BLEBY & SULAN JJ: On 3 October 2003, Keith Clifford, the appellant, was convicted by a majority verdict of one count of procuring an act of gross indecency, and one count of unlawful sexual intercourse with a person under seventeen. The first offence occurred between 9 September 1989 and 8 September 1991. The second offence occurred between 1 January 1996 and 31 December 1998. The victim in each case was a girl, who we shall refer to as J. The appellant appeals against both convictions.
Factual background
The appellant is 62 years of age. In about 1980 the appellant and his wife developed a friendship with J’s mother and her then husband. Later, J’s mother divorced J’s father. Subsequently, she re-married and the appellant gave her away. He is the godfather of J’s younger brother and younger sister. At the time that J’s mother re-married, J was about seven years of age. J had a difficult relationship with her stepfather. She visited the Clifford’s home regularly on weekends.
It was the prosecution case that the appellant would come to J’s home, pick her up and take her to his home. She would help the appellant clean his car and help him in the garden. J described a garden shed and how she would go with the appellant into the shed. She gave evidence that when she was about seven years of age the first act of indecency occurred. On that occasion the two of them were inside the garden shed. The appellant was wearing shorts. He showed her his penis and asked her to touch it. She described how she touched it with two fingers on the top and a thumb on the bottom. At the appellant’s request, she rubbed his penis. That is the incident which is the subject of the first count.
J said that conduct of this nature continued almost every weekend thereafter over some years. She said that she would rub the appellant’s penis, and that he would ejaculate. She said that the appellant told her not to tell anybody.
J described how, as she grew older, the activity became more intense. When she was about ten years of age the appellant started to touch her on her breasts. He would do that in the shed. On many occasions the appellant’s wife was inside the house. She described how the appellant then commenced to touch her on the outside of her clothing in the area of her vagina. That occurred when she was about ten years of age. She said that happened on a few occasions in the shed. She was unable to be specific about any particular occasion when this activity occurred.
The prosecution case was that the appellant commenced to touch her on the inside of…

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 Clifford

Details

AGLC: R v Clifford [2004] SASC 104
Case: [2004] SASC 104
Decision Date: 20 April 2004

CaseChat Overview and Summary

The case of R v Clifford involved the appellant who was convicted of charges relating to sexual misconduct with a complainant, referred to as J, who was under the age of 16 at the time of the offences. The appeal was heard by the court, which had to decide whether the evidence provided by the prosecution, including DNA evidence, was sufficient to uphold the conviction against the appellant. The court was also tasked with evaluating the credibility of the appellant's denial of the charges and his explanation for the post-18 sexual relationship with J.

The primary legal issues revolved around the interpretation and weight of the DNA evidence, specifically whether the presence of the appellant's DNA on the yellow towel, along with the complainant's DNA, could be sufficiently corroborated by other evidence to prove the alleged offences. The court had to consider whether the appellant’s admissions regarding the sexual relationship after J turned 18, and his explanation for the presence of the towel, could be reconciled with the prosecution's case. The court also had to assess the reliability of the appellant's testimony and whether it sufficiently explained the presence of his DNA on the towel.

The court found that the DNA evidence, while not definitive in proving the offences before J turned 18, provided significant support when considered alongside other evidence. The court held that the presence of the appellant's DNA on the towel, combined with the complainant's testimony, was enough to support the jury's conclusion that the sexual misconduct occurred before J turned 18. The court further found that the appellant's admissions about the sexual relationship post-18 did not adequately explain the presence of his DNA on the towel prior to that time. The court concluded that the evidence was sufficient to uphold the conviction, and thus dismissed the appeal.

In conclusion, the court upheld the conviction, finding the evidence sufficient to prove the charges against the appellant. The court's decision was based on the totality of the evidence, including the DNA evidence, the complainant's testimony, and the appellant's admissions and explanations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The prosecution elected to proceed on the two charges upon which the appellant was convicted and led evidence of the continuous sexual misconduct throughout the period until the conduct stopped after the complainant turned eighteen years of age.DNA evidence J gave evidence that on occasions when sexual intercourse took place in the shed there was a yellow towel with which she and the appellant would wipe themselves. When police attended at the appellant’s premises, there was a yellow towel located in the shed. DNA samples were obtained and tested. Sperm was not observed on the smears. Buccal swabs were taken from both the complainant and the appellant. DNA from those swabs was compared to the three smears that had been taken from the towel. In respect of one smear there were two components, a major and a weak minor component. The weak minor component was male and the appellant could not be excluded. In the case of the major component, the forensic scientists concluded that the DNA component is greater than a billion times more likely to match the DNA profile of the complainant than some unknown, unrelated female. As to a second smear, that contained a mixture from more than one individual. J and the appellant could not be excluded as contributors, and the mixed DNA profile was greater than a billion times more likely if J and the appellant were both contributors to the mixture than if they were not. As to the third smear, J and the appellant could not be excluded. The age of the stains could not be determined. It was agreed that in a cool, dry environment, semen-like stains from which DNA profiles are obtained could be stored for many years.The defence case The appellant gave evidence. He denied that any of the incidents, as described by the complainant, ever occurred prior to her turning 18 years of age. He denied that he had ever asked her to rub his penis. He denied that he had ever asked her to masturbate him. He denied that he had ever watched pornographic movies with her, and denied that he had ever had sexual intercourse with her “doggie-fashion”. He denied that he had ever had sexual relations with her prior to her turning eighteen. The appellant was asked in evidence-in-chief:“Q.Will you, in your own words, tell the jury what happened after she turned 18.A.I had sex with [J], I’m not uncertain (sic) where it was four or five times. I know it was stupid, it was only at [J’s] insistence. I know it was stupid and I still now wish it never happened. In fact, I can’t believe that it happened, because it came between me and my wife and my daughter. This 18 months – it is not just a matter of years - …Q.Where did it happen.A.Always in the shed.Q.And where, what positions would you adopt.A.[J’s] initiation in the first place. She knew I couldn’t go to the floor because of my back problem that I’ve got. It was even her suggesting how and what we did. In the last bit of her evidence she said the towel was there, [J] got the towel and put it there each time.Q.It was in the shed.A.It was in the shed exactly where [J] explained.Q.Where was Sue on the occasions when you had sexual intercourse with [J].A.This was after October 1999. My wife would, I would presume, be at Colonnades, because after I retired we don’t have as much money and on Saturdays they discount the meat late in the day and she would go and see if she could get a couple of bargains from Colonnades. I would take her to Colonnades and she would ring back up and I would go up and pick her up and bring her back.Q.For about what period of time did this sexual relationship with [J] last for.A.It started after her 18th birthday but it ceased in January, that would be the year 2000.”The appellant corrected himself and said it was 2001. He denied ever having pornographic films in his home.

Decision

Reasons for decision

We would dismiss the appeal.JUDGMENT CITATIONS

Ratio Decidendi

Legal Principle Established

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