R v Eccles-Smith

Case [2016] SASCFC 84

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ECCLES-SMITH

[2016] SASCFC 84

Judgment of The Court of Criminal Appeal

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

5 August 2016

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS

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

Following a trial by judge and jury, the appellant was found guilty of the first count of indecent assault, but acquitted of the second count of rape. The complainant gave evidence in which she described the alleged offending. Significantly, her evidence included reference to two telephone calls that she recalled the appellant receiving from his wife while she was at his residence. The offending was said by her to have occurred between the two telephone calls, with the second call interrupting the appellant’s alleged rape and enabling her to escape. Telephone records relating to the appellant’s mobile phone were tendered during the course of the prosecution case. These records did not contain any record of the two telephone calls which the complainant recalled the appellant receiving from his wife during the time of the alleged offending.

The appellant appeals against his conviction on the grounds that the jury verdict is unreasonable or cannot be supported having regard to the evidence, and that the jury verdict is unreasonable because it is inconsistent with the acquittal on the rape charge.

Held per Kourakis CJ and Blue J, dismissing the appeal:

1.       The only aspects of the complainant’s evidence capable of raising a doubt which the jury’s advantage in hearing her testimony could not resolve is the absence of a record of the phone calls the complainant described between the appellant and his wife (at [1]).

2.       The verdict was not unreasonable or incapable of being supported having regard to the evidence (at [6]-[12]).

3.       The verdict of guilty on the first count is not unreasonable for inconsistency with the acquittal on the second count (at [21]-[26]).

Held per Doyle J (dissenting), allowing the appeal:

1.       The inconsistency between the complainant’s evidence and the telephone records as to the second phone call was of sufficient significance to require doubt on the part of the jury as to the credibility or reliability of the complainant’s evidence as to the critical matters, with the result that the verdict is unreasonable and not able to be supported having regard to the evidence.

2.       Having regard to the acquittal in respect of the rape charge, the verdict of guilt in respect of the indecent assault charge is unreasonable as it is inconsistent with that acquittal.

Criminal Law Consolidation Act 1935 (SA) s 35, referred to.
M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The…

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R v Eccles-Smith [2016] SASCFC 84
Case
[2016] SASCFC 84
Decision Date

CaseChat Overview and Summary

The appellant, R, was charged with indecent assault and rape. Following a trial by judge and jury, he was found guilty of indecent assault but acquitted of rape. The appellant appealed his conviction on two grounds: that the verdict of guilty on the indecent assault charge was unreasonable or unsupported by the evidence, and that it was inconsistent with the acquittal on the rape charge. The Court of Appeal, comprising Kourakis CJ, Blue and Doyle JJ, considered these grounds of appeal.

The legal issues before the court were whether the jury's verdict of guilty on the indecent assault charge was unreasonable or unsupported by the evidence, and whether this verdict was rendered unreasonable by its inconsistency with the jury's acquittal of the appellant on the rape charge. The prosecution's case was that both offences occurred on 14 November 2014 while the complainant was cleaning the appellant's residence. The complainant's evidence detailed the alleged indecent assault in the bathroom and the alleged rape in the lounge room, stating that the rape was interrupted by a telephone call from the appellant's wife, which allowed her to escape.

The court reasoned that the complainant's evidence, if accepted, was capable of supporting a conviction for indecent assault. While the defence highlighted inconsistencies, particularly regarding telephone records and the complainant's use of her mobile phone during the alleged offending, these were matters for the jury to consider. The court found that the jury was entitled to accept the complainant's evidence regarding the indecent assault, even if they had doubts about the rape. The alleged inconsistency between the verdicts was not determinative, as the jury could have found the evidence sufficient for indecent assault but not for rape, for example, due to the differing nature of the alleged acts and the circumstances of the alleged interruption.

Ultimately, the Court of Appeal dismissed the appeal, concluding that the verdict of guilty on the indecent assault charge was not unreasonable, even when considered in light of the acquittal on the rape charge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is appropriate to summarise the above evidence in greater detail before turning to consider the arguments advanced in support of the two grounds of appeal.The complainant’s evidence The complainant’s evidence was that she first attended the appellant’s residence on 29 October 2014 in the company of her employer, Ms Burford. On that occasion she met the appellant and his wife and was shown around the appellant’s residence. She next attended the appellant’s residence on 31 October 2014. On that occasion, only the appellant was present. While cleaning the premises she engaged in conversation with the appellant. She described him as talkative and polite. It seems that during the course of that attendance, the appellant obtained the complainant’s mobile phone number from her phone. He subsequently sent her some text messages, which included content of a flirtatious and sexual nature. The complainant next attended the appellant’s residence on 14 November 2014. She was due to commence cleaning at 10.00 am, with an expectation that the job would take her three hours. Earlier that morning she missed two calls from the appellant, and then exchanged text messages with him. The exchange related to a suggestion by the appellant that she might start earlier to allow the appellant to meet a commitment later in the day, but this did not eventuate. The complainant recalled arriving at the appellant’s residence at about 10.00 am. While the telephone records showed her sending and receiving some text messages between 10.08 am and 10.37 am, she believed she must have sent these while at the appellant’s residence. Upon arriving, the complainant knocked on the door and heard the appellant say “come in”. She let herself in. Loud music was playing, but following the sound of the appellant’s voice she ended up at the bathroom door. The door was open and she noticed the appellant was in the shower. She caught sight of the back of his naked torso. She promptly apologised and stepped back from the door. She moved to another part of the house to commence cleaning. At some point she placed her mobile phone and keys on the bench in the kitchen, where they stayed until she retrieved them when leaving the house. Some time after she had commenced cleaning, the complainant heard the appellant receive a phone call from his wife and place it on loud speaker. She was able to hear the content of the phone call (the first phone call). She heard the appellant’s wife tell the appellant that she felt “sick” because she was “doing the pays or something and she didn’t want to muck it up”. The complainant also heard the appellant’s wife say to him “not to forget to go and pick up the reindeer”, which she understood to be a Christmas decoration. Soon after this, the appellant left the house for about half an hour, saying he was going to pick up the reindeer, and offering to get the complainant a cream bun (which she declined). The complainant said that she initially thought that the first phone call was received by the appellant on his mobile phone. However, having seen the phone records which did not include this call, she said the call must have been received on the appellant’s “home phone”. She was “pretty sure” the appellant had a cordless home phone as well as a mobile phone.

Decision

Reasons for decision

KOURAKIS CJ
The verdict of guilty on the first count is not unreasonable for inconsistency with the acquittal on the second count.Conclusion We would dismiss the appeal. DOYLE J: The appellant was charged with indecent assault (count 1) and rape (count 2). Following a trial by judge and jury, the appellant was found guilty of count 1, but acquitted of count 2. The appellant appeals against his conviction on two grounds, namely:1. The jury verdict on count 1 was unreasonable or cannot be supported having regard to the evidence.2. The jury verdict count 1 was unreasonable because it is inconsistent with the acquittal on count 2.Overview The prosecution case was that on Friday, 14 November 2014 the appellant indecently assaulted and raped the complainant. As at that date, the appellant was a 51 year old man, approximately five feet 10 inches tall and 100 kilograms in weight. The appellant had suffered a serious injury to his right leg in a work place accident in 2011, resulting in him ceasing work and receiving compensation from WorkCover. He had a cane to assist him when walking. The complainant was a cleaner and engaged through WorkCover to provide domestic cleaning services for the appellant and his wife at the appellant’s residence. She was 38 years of age at the time of the alleged offending. She was about five feet tall, and weighed approximately 70 kilograms. Both counts were alleged to have occurred on an occasion when the complainant was cleaning the appellant’s residence. The first count, the indecent assault, was alleged to have occurred in the bathroom and involved the appellant touching the complainant’s buttocks and breasts, and rubbing his penis against her buttocks. The second count, the rape, was alleged to have occurred in the lounge room and to have involved digital penetration by the appellant of the complainant’s vagina. The complainant gave evidence in which she described the alleged offending. Significantly, her evidence included reference to two telephone calls that she recalled the appellant receiving from his wife while she was at his residence on 14 November 2014. The offending was said by her to have occurred between the two telephone calls, with the second call interrupting the appellant’s rape of her and enabling her to escape. The prosecution also called evidence from the complainant’s employer, Ms Burford, as to the complaint subsequently made by the complainant to her. The complaint related only to the first count. In addition to this oral evidence, a series of agreed facts, photographs, a plan of the appellant’s residence, and telephone records were tendered during the course of the prosecution case. The significance of the telephone records, from the perspective of the defence case, was that they did not contain any record of the two telephone calls which the complainant recalled the appellant receiving from his wife, and that they showed the complainant using her mobile phone during the time she alleged the offending was occurring. They also did not show a text message she claimed to have received from the appellant later on the day of the offending.

Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ

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