R v Douglass

Case [2010] SASCFC 66

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DOUGLASS

[2010] SASCFC 66

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice David)

3 December 2010

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 - ADEQUACY OF REASONS

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES

CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY

Appeal against conviction – trial by judge alone – appellant convicted of one count of indecent assault – appellant gave evidence at trial – Judge accepted evidence of victim but did not expressly deal with evidence given by appellant – whether Judge’s reasons adequate – whether verdict unsafe and unsatisfactory – whether process of reasoning used by the Judge in accepting victim’s evidence flawed – implicit that the Judge’s rejection of the appellant’s denials was based on his acceptance of the victim’s evidence – Judge’s reasons for accepting victim’s evidence were adequate – appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 56(1), s 353(1); Evidence Act 1929 (SA) s 9, s 9(4), s 34CA, s 34M, S 34M(3); Juries Act 1927 (SA) s 7; Criminal Appeal Act 1912 (NSW) s 6(1); Criminal Procedure Act 1986 (NSW) s 32, s 33(2); Criminal Procedure Act 2004 (WA) s 120(2), referred to.
M v The Queen (1994) 181 CLR 487; R v Keyte (2000) 78 SASR 68; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, applied.
Papps v Police (2000) 77 SASR 210; AK v Western Australia (2008) 232 CLR 438, distinguished.
Fleming v The Queen (1998) 197 CLR 250; R v Kurtic (1996) 85 A Crim R 57, discussed.
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, considered.

R v DOUGLASS
[2010] SASCFC 66

Court of Criminal Appeal:  Doyle CJ, Anderson and David JJ

  1. DOYLE CJ:          Mr Douglass was found guilty by a District Court Judge of one count of aggravated indecent assault contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). The trial was by judge alone. The victim was his granddaughter, C. She was 3 years old at the time of the offence. Mr Douglass has appealed against his conviction.

  2. Mr Edwardson QC, counsel for Mr Douglass at trial and on appeal, submits that the Judge failed to give adequate reasons for rejecting the evidence of Mr Douglass.  He argues that before a finding of guilt could be made, the Judge was required to reject the evidence of Mr…

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R v Douglass [2010] SASCFC 66
Case
[2010] SASCFC 66
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for indecent assault. The appellant, Mr Douglass, was tried by a judge alone and found guilty of one count of indecent assault against his granddaughter, C. He had also been charged with two counts of indecent assault against his daughter, L, but was acquitted of those charges. Mr Douglass appealed his conviction, arguing that the judge's reasons for convicting him were inadequate and that the verdict was unsafe and unsatisfactory.

The central legal issue before the court was whether the trial judge had provided adequate reasons for accepting the evidence of the victim, C, and consequently rejecting the appellant's defence. The appellant contended that the judge's failure to expressly address his evidence, which denied the allegations, rendered the reasons for conviction insufficient and potentially led to an unsafe verdict. The court was required to determine if the judge's reasoning process, in accepting C's evidence and implicitly rejecting the appellant's denials, was flawed.

The Full Court of the Supreme Court of South Australia, comprising Doyle CJ, Anderson and David JJ, dismissed the appeal. The court reasoned that while a judge must provide adequate reasons for their decision, this requirement does not operate as a gateway to allow an appeal in itself. Instead, inadequate reasons can lead to a conclusion that justice has not been seen to be done, thereby potentially rendering a verdict unsafe. In this instance, the court found that the judge's reasons for accepting C's evidence were adequate. It was implicit that the judge's rejection of the appellant's denials was based on his acceptance of C's evidence, and this process of reasoning was not flawed. Therefore, the court concluded that the verdict was not unsafe or unsatisfactory.

Orders

Orders of the court

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Background

Background to the litigation

It is necessary to set out the facts before considering Mr Edwardson’s submissions.Facts Mr Douglass was charged with two counts of indecent assault of his daughter L, and one count of aggravated indecent assault of his granddaughter C. C is L’s daughter. L is the daughter of Mr Douglass and Ms Hay. The two counts of indecent assault involving L were charged in the alternative. Both counts relate to the same incident, but the first count alleged that the incident took place between 30 November 1981 and 11 February 1982, while the second count alleged that the incident took place between 10 February 1982 and 31 December 1983. The third count, the count of aggravated indecent assault of C, was alleged to have taken place between 1 October 2008 and 25 October 2008. Mr Douglass denied the allegations by L and C. The Judge found Mr Douglass not guilty on the first two counts involving L, but found him guilty on the third count involving C. In relation to the first two counts the prosecution conceded that the alleged offence occurred in Mr Douglass’ woolshed or not at all. L gave evidence that the incident occurred in the woolshed in 1983, when she was about 7 years old. She maintained that the incident occurred in 1983 throughout her evidence. However, there was other evidence that the construction of the woolshed was not completed until March 1987. On the basis of this evidence, the Judge found that it was likely that the building of the woolshed was not completed until March 1987, and for this reason, while otherwise accepting L’s evidence, the Judge was not satisfied beyond reasonable doubt that Mr Douglass was guilty of the first two counts. The incident the subject of count 3 was alleged to have occurred about 23 October 2008. It was the prosecution case that on or about this day C touched Mr Douglass’ penis while he was urinating in his shed. C had gone to stay with Mr Douglass and his partner Ms Hay. Ms Hay gave evidence that on the morning of 23 October 2008 she picked up C from L’s house. After taking her shopping, Ms Hay took C back to her home. Ms Hay was living with Mr Douglass on a farm in the Adelaide Hills. The farm is across the road from a property owned by Mr Douglass’ mother. It was Mr Douglass’ practice to visit his mother about 3.00 pm each day. Mr Douglass gave evidence that he went to see his mother on 23 October 2008 and that he took C with him. They left at 2.30 pm. Mr Douglass travelled on an “ATV bike” or All Terrain Vehicle. He said that he and C left early because there was a broken pipe in the sheep paddock that he wanted to fix before he visited his mother. C had a doughnut with her. Mr Douglass was alone with C while he was in the sheep paddock. He gave evidence that while he was digging a hole in the ground to mend the broken pipe C was lining up rocks beside the hole. He denied that he urinated while he was in the paddock fixing the pipe. He said that it took about 30 minutes to fix the pipe, and that once he had finished he took C to see his mother. They stayed with her for about 30 minutes before returning to his property. Mr Douglass said that C ate some of her doughnut while at his mother’s house.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

That is not necessarily the end of the matter. As the High Court said in Fleming at [22], ensuring that justice is seen to be done is a rationale for the conclusion that a judge must give adequate reasons. That does not elevate the requirement to the status of a test or gateway for a decision to allow the appeal. It is another way of saying that the reasons are inadequate, because if they do not permit the Court to discharge its function then it cannot be said that justice is being seen to be done. In the present case there can be no doubt about how and why the Judge rejected the defence case.Conclusion For those reasons I would dismiss the appeal. ANDERSON J: I agree that the appeal should be dismissed. I agree with the reasons of the Chief Justice. DAVID J: I would dismiss the appeal for the reasons given by the Chief Justice.

Ratio Decidendi

Legal Principle Established

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