R v D, JJ

Case [2014] SASCFC 29

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v D, JJ

[2014] SASCFC 29

Judgment of The Court of Criminal Appeal

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

1 April 2014

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

JURY - VERDICTS AND FINDINGS - MAJORITY VERDICT

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED

EVIDENCE - COURSE OF EVIDENCE AND ADDRESSES

EVIDENCE - WITNESSES

CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR CONSISTENT STATEMENTS

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE

Following a trial by jury, the appellant was convicted of indecent assault (count 1) and carnal knowledge (count 2) against his cousin, “A”.  The offences were alleged to have occurred in the period December 1973 to January 1974, approximately thirty years prior to A making a complaint to police.  A turned 13 on 1 January 1974. The appellant was then 25. 

The prosecution case depended entirely on the uncorroborated evidence of A.  Her evidence was that count 1 occurred when the appellant, on the pretext of getting some lollies, led her away from a party at a mutual uncle’s house and into the front yard of a nearby house where he touched her vagina.  Her evidence was that count 2 occurred approximately a week later when the appellant, having previously arranged with a different uncle and aunt for A to accompany him alone in his car in order to show him the way to a second aunt’s house, instead drove to a secluded pine forest where he had penile-vaginal sexual intercourse with her. There was no evidence of positive identification of the appellant as the offender by A. 

The appellant appealed on the ground that the verdicts were unreasonable or cannot be supported by the evidence.  He submitted that the combination of a number of features of her evidence should have raised a reasonable doubt as to whether the offences occurred at all, or if they did, whether it was the appellant who committed them. 

Held (Peek J; Blue and Nicholson JJ agreeing, dismissing the appeal):

A’s evidence appeared to be credible and reliable both as to the occurrence of the incidents, the surrounding circumstances and the characteristics of the offender. The appellant made very substantial admissions as to his presence at a party and driving alone with A at a time some days after that party. The jury were entitled to reject the appellant’s denials and find beyond reasonable doubt on the basis of A’s evidence that the offences occurred and, having done so, were also entitled to find beyond reasonable doubt on the basis of the very strong circumstantial case that it was the appellant who committed…

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R v D, JJ [2014] SASCFC 29
Case
[2014] SASCFC 29
Decision Date

CaseChat Overview and Summary

The case of R v D, JJ involved an appeal against conviction for sexual offences. The appellant, D, was convicted by a jury on two counts: indecent assault and unlawful sexual intercourse. The complainant, A, alleged that the appellant committed these offences during a New Year's Eve party in 1973 and approximately two weeks later. The appeal concerned the reasonableness and supportability of the jury's verdict in light of the evidence presented at trial.

The legal issues before the Court of Appeal were whether the jury's verdict was unsafe or unsatisfactory, and whether the evidence was sufficient to prove beyond reasonable doubt that the appellant was the perpetrator of the alleged offences. Specifically, the court had to consider the complainant's identification of the appellant, the appellant's own evidence and admissions, and the overall strength of the circumstantial evidence presented by the prosecution. The court also addressed an application to amend the grounds of appeal, which was refused.

The Court of Appeal reasoned that while the complainant had some difficulties with dates and her evidence was given many years after the events, her account of the sexual acts themselves was not inherently unreliable. The court found that the identification of the appellant as the perpetrator was established through a strong circumstantial case. This case relied on the complainant's description of the offender, which included physical attributes and specific circumstances of their meeting at the party and subsequent encounter. The court noted that the appellant admitted to attending the party and having interactions with the complainant around the relevant time, although he disputed the dates and the nature of the events. The court found that the cumulative effect of the evidence, including the appellant's inconsistent statements and the limited pool of individuals fitting the complainant's description, made it open for the jury to conclude that the appellant was the offender.

The Court of Appeal dismissed the appeal, finding that the jury's verdict was not unsafe or unsatisfactory. The court concluded that it was open to the jury to reject the appellant's denials and to convict him on both charges based on the evidence presented.

Orders

Orders of the court

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Background

Background to the litigation

After hearing the parties’ submissions on the application to amend, the Court determined that it would proceed to hear the parties’ submissions on the original ground of appeal before reaching a concluded view on the application. The Court has determined for the reasons that appear in the transcript of argument (during which counsel all but conceded that the application was misconceived) that the proposed further ground of appeal is not arguable and that permission to appeal on the proposed ground of appeal would be refused. Accordingly, permission to add the proposed additional ground of appeal is refused.Uncontentious background and family relationships A gave the following uncontested evidence at trial. A was born in Naracoorte on 1 January 1961 and was the middle child in her family with an older sister and a younger brother. She lived with her mother and father until the age of five when she and her sister were sent to the Goodwood Orphanage in about 1966. She remained there until she was sent to the residence of her Uncle T and Aunt M at Salisbury North on 15 December 1972 at the age of 11. A’s relationship with Uncle T was good but Aunt M was quite strict and, in A’s words, it was “pretty horrific” living with her. Count 1: The incident during the party at Uncle S’s house A’s evidence-in-chief as to the conduct charged in count 1 was as follows. A attended a party at Uncle S’s house at Elizabeth on New Year’s Eve, 31 December 1973. A stated that this was memorable because she had previously visited him only once, long before the party and just before she was sent to the Goodwood Orphanage in about 1966 (when she was around five years of age). The party had been a celebration of the New Year as well as of someone’s birthday. A had arrived at Uncle S’s house the night before, on 30 December 1973, and had been brought there early to help in setting up for the party. A estimated that “around 20” or “maybe 20, maybe 30” people attended the party and that people had begun to arrive in the afternoon while it was still light. A remembered that during the party someone was introduced as “John” generally to those present.[2] She gave the following description of “John”:[3][2] T40.[3] T41.QCan you describe the person who was introduced as John to us?AHe wasn’t that tall, he had mousey hair, blue eyes.QApproximate age?AI thought probably around 22, 24.QBuild?AVery slim.QEthnic appearance?ANo, yeah, Australian.QCaucasian?AYes.HIS HONOUR: You should have let the witness answer the question herself.QDo you remember what he was wearing?AI know he had jeans on.QWhat about on the top?AWell, I kind of think – I’m almost sure that I remember a leather jacket.QWhat colour?ABlack. A gave evidence that this was the first time she had met John. She said that sometime during the party after that introduction, and after night had fallen, she passed John in the doorway of the back door. At this time John asked her if she wanted to go to the shop to get some lollies. A stated that she accepted that invitation and that they left Uncle S’s house together and walked down the street in the general direction of a group of shops with which she was familiar. A gave evidence that during this walk, the following incident occurred:[4][4] T42.AAt some point after we turned, he took my arm and led me across the street into somebody’s front yard.QCan you tell us in terms of time it took you to walk to there or distance, can you give us any idea of how far away it is?AProbably at the most maybe 10 minutes maybe, if that.QAt some point you stopped walking, is that right?AYes.QWhat happened then?AThen he pulled me, not, you know, it wasn’t rough, but he guided me into somebody’s front yard.QDid you go with him into the front yard?AYep.QWhat happened in the front yard?AWell, I was standing with my back to the street and he was standing facing me and I remember him kneeling down in front of me blowing on my vagina with his mouth, yeah.QWhat were you wearing that day?AA dress. I always wore a dress. I wasn’t allowed to wear jeans.QDid you wear anything under your dress?AJust my underwear.QWhen he kneeled in front of you, were you still fully clothed?ANo.QWhat happened in relation to your clothes?AMy underwear was down.QWho did that?AJohn did it.QAfter the blowing, what happened then?AI’m pretty sure that he was fondling my vagina.QSorry?AFondling my vagina.QOn the outside or inside?AOutside.QDid he touch the inside of your vagina at all?AI can’t remember.

Evidence

Evidence Before The Court

It was A’s firm evidence that the person, John, who had interfered with her vagina during the New Year’s Eve party (count 1) was the same person who took her for the car ride and had penile-vaginal sexual intercourse with her (count 2). It was the prosecution case that this man “John” was the appellant. The evidence of the appellant While the appellant gave oral evidence at the first aborted trial, he did not do so again at the second trial. His evidence from the first trial was tendered by the prosecution as an exhibit[7] with the consent of the appellant and read to the jury by the trial Judge’s Associate. During that evidence the appellant denied having ever sexually interfered with A but he made a number of very significant admissions which are discussed below. [7] Exhibit P14.The party at Uncle S’s house The appellant admitted that he had attended a party at Uncle S’s house on a Saturday night but asserted that the party occurred sometime during the summer of 1975. He gave evidence that he had moved from Naracoorte to Seaton in 1974 and on the Saturday morning of the party, his mother had arrived in Adelaide by overnight train from Naracoorte for the purpose of attending the party. The appellant further stated that his then girlfriend (who will be referred to as Pauline) who was living at West Beach or Glenelg at the time, had driven the appellant and his mother in Pauline’s car to Uncle S’s house for the party. The appellant stated that he was suffering from severe alcoholism during that period and he was “too drunk to drive”. The appellant gave evidence that once at the party, he devoted himself to drinking. He stated that he did not remember seeing A there and that the only event of that night he really remembered was leaving the house to check on his mother who at some stage returned to sit in the car as she was feeling unwell and that she may have been suffering from a migraine. After being reassured by his mother that she was fine, the appellant returned to the party. The appellant said that he also remembered being in the back seat of the car at some later time while his Uncle S and Aunt L spoke to his mother through the car window. He stated that he assumed that this was when he left the party with his mother and Pauline. The appellant gave evidence that it was rare for his mother to come to Adelaide (given her age at the time and the nature of the trip from Naracoorte) and that she only visited Adelaide while he was living there on about two occasions. The drive in the car with A the subject of count 2 The appellant gave evidence accepting many of the facts alleged by the prosecution in the context of count 2 but denying the occurrence of any sexual intercourse with A. His version was that his mother told him after the party at Uncle S’s house that Uncle T was suffering from cancer and had requested that he visit Uncle T. The appellant stated that he did so about a week or two after the party. He stated that he drove to Aunt M and Uncle T’s house using Pauline’s car and there saw A. The appellant gave the following evidence about what transpired:[8]QWhat happened on the visit to Uncle T, with respect to her?AMy aunty was in a tizz about - I still don’t really remember if it had all to do with she needed something from the shop, Michael was either supposed to have gone to the shop and got it or he hadn’t come home or he hadn’t come home from wherever the heck he was and gone to the shop for her and she got herself into a bit of a tizz, and my aunty was the type of person when she said jump, you jumped, you didn’t ask any questions. So she asked me to go and I got to find Michael or go to the shop and all that sort of stuff, and I didn’t know the area and so she told [the Complainant] to come and show me where the shop was.[8] T123.

Decision

Reasons for decision

PEEK J BLUE J NICHOLSON J
Thus, not only was the appellant’s evidence as to dates inconsistent with the evidence of A and Pauline, it was also internally inconsistent. As noted above, the appellant moved from asserting that the car trip was the first time he ever met A to identifying another two separate occasions on which he might have met her at Uncle S’s house, namely the engagement announcement and the Saturday afternoon visit. The appellant also conceded that he had confused the engagement announcement with the subject party at Uncle S’s house. Conclusion as to the first question about the occurrence of the sexual acts The cumulative effect of the above matters does not lead to the conclusion that the jury should have found A unreliable as to the occurrence of the sexual acts described by her. The inconsistencies in her evidence upon correct analysis are relatively minor. They are to be considered in light of her age at the relevant time, the passage of almost 30 years between the incidents and her first report to police, the subsequent interval of several years between that interview and the two trials and her admitted difficulties with dates. The second question: “If the sexual acts described by A did occur, was it safely proven beyond reasonable doubt that it was the appellant who committed those acts?” A’s description of the physical attributes of the offender comprised the following features: “mousey” hair; blue eyes; not overly tall; very slim; Caucasian/Australian in appearance; and about 22 to 24 years old. However, A also gave a further important description of a number of other non-physical attributes that the offender possessed. Putting aside for the moment the topic of hair colour, and on the basis of A’s evidence that the same male committed both count 1 and count 2, the class of persons falling within A’s full description of the offender’s attributes was quite limited. It only comprised males who:·Had blue eyes;·Were not overly tall;·Were very slim;·Were of Caucasian/Australian appearance;·Were between about 22 to 24 years old;·Attended a party at Uncle S’s house as an invited guest;·Were introduced as being named “John” at that party;·Went walking with A alone during the course of that party;·About two weeks after that party attended at the house of A’s Uncle T and Aunt M in circumstances where he apparently knew those people and was permitted by them to take A on a drive with him alone. It appears to be agreed that the appellant John has each of these attributes, with the possible exception of “walking with A alone during the course of the party”. As to that particular matter, the appellant gave evidence that he was so intoxicated during the party at Uncle S’s house that he could not say whether he went for such a walk or not. Without more, it appears that the appellant faced a very strong circumstantial case and that it was well open to the jury to reject the appellant’s denials of guilt and to convict him of both charges. Thus the prosecutor at trial made the following cogent remarks in his closing address:[26]… On the prosecution case, we are talking about the same party because the complainant told you she met a “John”. You remember he was in approximately the right age range to the accused, he was the right build, he was the right race, and obviously known to Uncle S or invited by Uncle S. You might wonder whether Uncle S has more than one person at a party of 20 or 30 of his family who is called John of the right age and build and race. You might wonder whether it’s likely that at most family affairs everyone in the family had named their children John who of course must have been born at approximately the same time. I suggest it’s conceivable there might be a John Senior and a John Junior but what about at the same age? But are the defence really suggesting or maybe suggesting that it was a different John who did count 1 to the complainant, a John who just happened to be the right age, the right build, the right race, but had blue eyes instead of hazel eyes, another John who just happened to interfere with the complainant a week before John did? In the prosecution’s submission it’s fanciful when you have the sworn evidence of the complainant to the contrary that the John who committed count 2, was the John who committed count 1. You might think that she might not forget the face and would have recognised him that second time. That’s all I’m going to say about identification. In my submission, it’s clear you have the right man for count 1 and count 2. [26] T173-174.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J, BLUE J, NICHOLSON J

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