R v D, L

Case [2015] SASCFC 24

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v D, L

[2015] SASCFC 24

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Bampton)

10 March 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES - PARTICULAR CASES

This is an appeal against conviction, by a Judge alone, of one count of persistent sexual exploitation of a child, in contravention of section 50(1) of the Criminal Law Consolidation Act 1935 (SA).

The complainant gave evidence of various acts, that comprise indecent assault or unlawful sexual intercourse, by the defendant while the complainant was between 5 and 15 years old.  While the prosecution called various other witnesses, including members of the complainant’s family, the prosecution case was largely reliant upon acceptance by the Judge of the credibility and reliability of the complainant’s evidence.  The defendant gave evidence denying any sexual activities with the complainant.

The first ground of appeal is that the Judge erred as a matter of law in his application of the burden of proof.  This ground is based on a statement by the Judge in his reasons, that, although not determinative of the case, having listened to the complainant over a number of days, the Judge simply believed him and found him to be reliable and the Judge had the same view at the end of all of the evidence.

The second ground of appeal is that the verdict is unreasonable or cannot be supported having regard to the evidence.  The defendant contends that there were inconsistencies and implausibilities in and in relation to the complainant’s evidence, which must have led to a reasonable doubt about acceptance of his evidence; and there was no reason to reject beyond reasonable doubt the defedant’s evidence.

The third ground is that the Judge erred as a matter of law in failing to give adequate reasons.  The defendant contends that the Judge did not deal with incontrovertible, or arguably incontrovertible, inconsistencies affecting the credibility of the complainant.

Held: by Blue J (Kourakis CJ and Bampton J agreeing):

1. The Judge’s reasons, read in context, demonstrate that the Judge only made a tentative and provisional assessment of the complainant’s evidence at the end of his evidence and only made a final assessment at the end of all of the evidence (at [50], [52]).

2. Observations about what must be established to make out a ground of appeal that the verdict is unreasonable or cannot be supported having regard to the evidence and common confusion between…

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R v D, L [2015] SASCFC 24
Case
[2015] SASCFC 24
Decision Date

CaseChat Overview and Summary

The defendant appealed his conviction on three grounds to the Full Court of South Australia, presided over by Kourakis CJ, Blue and Bampton JJ. The dispute concerned allegations of sexual offending against the defendant by his nephew, who was a child at the time of the alleged offences. The grounds of appeal included an alleged error of law in the application of the burden of proof, the contention that the verdict was unreasonable or unsupported by the evidence, and a further alleged error of law due to the trial judge's failure to provide adequate reasons, specifically in not addressing inconsistencies in the complainant's evidence.

The court was required to determine whether the trial judge had correctly applied the burden of proof, whether the jury's verdict was unreasonable or unsupported by the evidence presented, and whether the trial judge's reasons for judgment were legally inadequate by failing to sufficiently address inconsistencies in the complainant's testimony, which the defendant argued indicated prejudgment of credibility. The court also considered the defendant's application for permission to appeal on certain grounds.

Regarding the first ground, the court found that the trial judge did not err in law in their application of the burden of proof and refused permission to appeal on this basis. The court then addressed the ground that the verdict was unreasonable or unsupported by the evidence, noting the extensive particulars provided by the defendant detailing alleged inconsistencies and implausibilities in the complainant's evidence, as well as the complainant's alleged motive to fabricate. The court also considered the subsidiary contention that the judge failed to adequately address these inconsistencies in their reasons, which the defendant argued demonstrated prejudgment. However, the court concluded that the judge had addressed some inconsistencies and, upon reviewing the reasons as a whole, found no basis to conclude that the judge had prejudged the complainant's credibility.

The court dismissed the appeal, finding no error of law in the application of the burden of proof and no basis to conclude that the verdict was unreasonable or unsupported by the evidence. The court also found no miscarriage of justice arising from the trial judge's reasons for judgment.

Orders

Orders of the court

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Background

Background to the litigation

The defendant appeals and seeks permission to appeal against his conviction on three grounds:1.the Judge erred as a matter of law in his application of the burden of proof;[2]2.the verdict is unreasonable or cannot be supported having regard to the evidence;[3] and3.the Judge erred as a matter of law in failing to give adequate reasons insofar as he did not deal with incontrovertible, or arguably incontrovertible, inconsistencies affecting the credibility of the complainant and consequently his conclusion of proof beyond reasonable doubt.[4][2] Ground 2 in the notice of appeal but argued by the parties first. Permission to appeal on this ground was refused by a Judge. The defendant renews his application for permission to appeal to this Court.[3] Ground 1 in the notice of appeal. Permission to appeal on this ground was granted by a Judge.[4] Ground 3 introduced by amendment pursuant to permission to amend the notice of appeal granted during the hearing of the appeal. Permission to appeal on ground 3 is sought from this Court.Background The defendant was born in October 1952 and was 31 years old in 1984 when the offending allegedly began. He was then married to W. They had one daughter and lived in a house at Christies Beach. The complainant was born in February 1979 and was five years old in 1984 when the offending allegedly began. He was living at Moana at that time with his father, mother, older sister and younger brother. He is a nephew of the defendant, his mother being W’s sister. The complainant and his family moved to Mount Compass when he was nine years old. The complainant’s father worked seven days a week and his mother worked full time. The complainant and his siblings stayed with the defendant and his family from time to time. There was a dispute at trial about the extent to which this occurred. When the complainant was young, the defendant had a slot car track set up in the lounge room of his house at one point. There was a dispute at trial whether it was permanent or temporary and whether the complainant played with it more than once. The complainant gave evidence, and the defendant denied, that the defendant touched him on his private parts or genital area over his clothing while they were in the lounge room playing with the slot cars and this was subsequently repeated “quite often” over the next few years. The complainant said that he was “about five” (about 1984[5]) when this started.[6][5] The complainant gave evidence generally by reference to his approximate age at the time or the number of years before he gave evidence or another event occurred. The complainant did not give evidence by reference to the year except indirectly by calculating it from his age or the number of years before he gave evidence. The year is included in parentheses to give an objective indication when the complainant was of a certain age.[6] The complainant gave evidence that he was not good with dates. He generally referred to being “about” or “close to” or “going on” an age in years. He did not necessarily give evidence that events occurred in the order set out herein.

Evidence

Evidence Before The Court

The Judge did not err as a matter of law in his application of the burden of proof. Permission to appeal on the first ground should be refused.Unreasonable or not supported by the evidence The next ground of appeal argued is that the verdict is unreasonable or not supported by the evidence. The notice of appeal contains two sets of particulars of this ground. The first set of particulars commences:The Learned Trial Judge failed to have regard or gave insufficient weight to the following evidence in an assessment of the complainant’s credibility and reliability:followed by 14 subparagraphs identifying inconsistencies (internal and external) in the complainant’s evidence on 11 topics, implausibility of the complainant’s evidence on two topics and the complainant’s motive to make a false allegation. The second set of particulars commences:The Learned Trial Judge placed undue weight on the following matters in assessing the credibility and reliability of the Appellant:followed by three subparagraphs identifying three topics. Approach on appeal Section 353(1) of the Criminal Law Consolidation Act 1935 (SA) (the Consolidation Act) provides:The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The subsection applies to appeals against convictions after trials by jury or by judge alone alike.[9][9] Criminal Law Consolidation Act 1935 (SA) ss 352-353; Juries Act 1927 (SA) s 7(4). The grammatical and logical structure of section 353(1) indicate that there are three broad grounds of appeal:[10]1. the verdict is unreasonable or cannot be supported having regard to the evidence, or2. the judgment should be set aside on the ground of a wrong decision on any question of law, or 3. on any [other] ground there was a miscarriage of justice.[10] M v The Queen (1994) 181 CLR 487 at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ; Fleming v The Queen (1998) 197 CLR 250 at [8] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ. The second ground in respect of a jury trial encompasses diverse errors of law by a judge ranging from an erroneous direction concerning an element or the elements of the offence or a defence to an erroneous decision to admit or exclude evidence to an erroneous direction concerning assessment of the evidence or the permissible or impermissible use of evidence. In respect of a trial by judge alone, it encompasses corresponding diverse errors of law by a judge. Typically, (alleged) errors of law are process errors affecting or capable of affecting the outcome but in rare cases could be outcome errors. Subject to application of the proviso, establishment of the error of law typically leads to a direction that there be a new trial.

Decision

Reasons for decision

The defendant makes a subsidiary contention that the Judge failed to address a number of internal and external inconsistencies in relation to the complainant’s evidence that he was required to address in his reasons for judgment and this failure demonstrates prejudgment of the complainant’s credibility. The alleged inadequacy of the reasons for judgment is now an independent third ground which I address below. Regardless of whether that independent ground is made out, the Judge nevertheless addressed some alleged inconsistencies in relation to the complainant’s evidence and, having analysed his reasons as a whole, there is no basis to conclude that the Judge prejudged the complainant’s credibility.Conclusion as to first ground The Judge did not err as a matter of law in his application of the burden of proof. Permission to appeal on the first ground should be refused.Unreasonable or not supported by the evidence The next ground of appeal argued is that the verdict is unreasonable or not supported by the evidence. The notice of appeal contains two sets of particulars of this ground. The first set of particulars commences:The Learned Trial Judge failed to have regard or gave insufficient weight to the following evidence in an assessment of the complainant’s credibility and reliability:followed by 14 subparagraphs identifying inconsistencies (internal and external) in the complainant’s evidence on 11 topics, implausibility of the complainant’s evidence on two topics and the complainant’s motive to make a false allegation. The second set of particulars commences:The Learned Trial Judge placed undue weight on the following matters in assessing the credibility and reliability of the Appellant:followed by three subparagraphs identifying three topics. Approach on appeal Section 353(1) of the Criminal Law Consolidation Act 1935 (SA) (the Consolidation Act) provides:The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The subsection applies to appeals against convictions after trials by jury or by judge alone alike.[9][9] Criminal Law Consolidation Act 1935 (SA) ss 352-353; Juries Act 1927 (SA) s 7(4). The grammatical and logical structure of section 353(1) indicate that there are three broad grounds of appeal:[10]1. the verdict is unreasonable or cannot be supported having regard to the evidence, or2. the judgment should be set aside on the ground of a wrong decision on any question of law, or 3. on any [other] ground there was a miscarriage of justice.[10] M v The Queen (1994) 181 CLR 487 at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ; Fleming v The Queen (1998) 197 CLR 250 at [8] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.

Ratio Decidendi

Legal Principle Established

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