R v F, CJ - [2011] SASCFC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v F, CJ
[2011] SASCFC 2
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice Peek)
22 February 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS - ADJOURNMENT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES - ADDRESSES
Appeal against conviction - following trial by judge alone, appellant convicted of two counts of gross indecency against a young girl - whether evidence of girls to effect that they had been invited to expose their bodies to appellant was properly admitted and used - whether defence counsel was deprived of adequate opportunity to address the court - effect of significant delay between end of trial and verdict - whether trial judge failed to consider properly the effect of complainant's cognitive impairment on her reliability - whether trial judge failed to give adequate weight to his finding that evidence of certain witnesses was inconsistent - whether convictions were unreasonable and not supported by evidence.
Held: appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 56, s 58, s 278; Juries Act 1927 (SA) s 7, referred to.
R v Beard [2004] SASC 411, applied.

R v F, CJ
[2011] SASCFC 2
Court of Criminal Appeal: Vanstone, White and Peek JJ

VANSTONE J: The appellant stood trial in the District Court before a judge sitting without a jury upon three counts of indecent assault and two counts of gross indecency. The charges alleged conduct between August 1989 and September 1992. The complainant in each count was a girl then aged less than 12 years. The appellant was acquitted on counts 1, 2 and 3 but convicted for the two gross indecency charges. He now appeals against those convictions, arguing a number of grounds mainly arising from the reasons for the verdicts published by the judge. He also complains about the admission of certain evidence and argues that the long delay between the final submissions of counsel and publication of the verdicts is such a fundamental flaw in the trial process as to give rise to a miscarriage of justice.
The appellant obtained permission to appeal from a single judge. During the appeal hearing he sought to amend his appeal notice to add a further two grounds.
Background
Despite the fact that the appellant was acquitted of counts 1 to 3 it is necessary to discuss in these reasons the evidence relevant to those counts.
At the relevant time the appellant was working as an artist. His studio was in his home at Henley Beach. He lived in that house with his wife. The complainant, whom I shall call “V”,…

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 F, CJ

Details

AGLC: R v F, CJ [2011] SASCFC 2
Case: [2011] SASCFC 2
Decision Date: 22 February 2011

CaseChat Overview and Summary

The appeal concerned a conviction by a judge alone for two counts of gross indecency against a young girl. The appellant sought to challenge the admission and use of evidence relating to the complainant's allegations, the adequacy of his defence counsel's opportunity to address the court, the impact of significant delay between the trial's conclusion and the verdict, and whether the trial judge properly considered the complainant's cognitive impairment and inconsistencies in other witnesses' evidence. The appeal was heard by Vanstone, White, and Peek JJ of the Supreme Court of South Australia.

The central legal issues before the Full Court were whether the trial judge erred in admitting and relying upon the complainant's evidence, particularly concerning her cognitive impairment and the reliability of her account. The court also had to determine if the defence was unfairly prejudiced by a lack of opportunity to make a full address, and if the overall verdict was unreasonable or unsupported by the evidence, given the circumstances and the evidence presented.

The Full Court, in dismissing the appeal, found that the complainant's evidence was convincing and detailed, demonstrating a strong recollection of her thoughts and feelings. The court considered the graphic details of the appellant's conduct and the games he devised to be compelling. The judges were satisfied that none of the grounds of appeal had been successfully made out, and therefore, the appeal against conviction was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant obtained permission to appeal from a single judge. During the appeal hearing he sought to amend his appeal notice to add a further two grounds.Background Despite the fact that the appellant was acquitted of counts 1 to 3 it is necessary to discuss in these reasons the evidence relevant to those counts. At the relevant time the appellant was working as an artist. His studio was in his home at Henley Beach. He lived in that house with his wife. The complainant, whom I shall call “V”, was a neighbour of the appellant. Her mother and the appellant and his wife were close friends and V would often visit the appellant and his wife in their home. Two other girls used to visit the appellant’s home on a regular basis. They were of a similar age to V. I shall refer to them as “H” and “L”. V’s account had both of them present during the incident which formed the basis of count 1. Count 1 was said to have occurred when V, H and L were playing in the appellant’s studio, where he was painting. V said that the three girls stood in a line and pulled their tops up whereupon the appellant touched the chests of all three of them, rubbing their nipples. When asked why they had pulled their tops up, V said that, while she could not recall any particular conversation on that occasion, on other occasions the appellant had said things like “Let’s see if you’re turning into a woman”. Count 2 was an allegation relating to an occasion when V and H went swimming with the appellant at Henley Beach. She said that, whilst in the water, the appellant asked them if he could feel to see if they were developing into women. He then lifted their swimwear and rubbed their nipples. Count 3 alleged a similar touching, again in the appellant’s studio, when he was painting. This was alleged to have occurred in the presence of L. Again, the appellant was said to have rubbed V’s nipples in the same way, as well as touching L’s nipples. Statements of the girls H and L did not support V’s claim of being touched by the appellant on these occasions. However, they gave strong support for such events, short of touching, having occurred and for the appellant often encouraging them to expose their bodies. The two gross indecency charges were of a more serious nature. Count 4 was described as occurring in the appellant’s outside studio or shed, on an occasion when the appellant was working on a wooden sculpture. V said that on this day she was alone with the appellant. On this occasion they played what she had been accustomed to calling “the mouse game”. That involved her kneeling in front of the seated appellant. She would tickle his inner legs, extending to the groin, whereupon the accused was said to have opened his flies. She described him then saying to her “I can feel a mouse. Where is the mouse heading to? Will it find the cheese?” She said that she understood the cheese to be the accused’s penis. She was then encouraged to take his penis from his pants and to begin stimulating it. This went on for some minutes and the accused groaned, but did not ejaculate. Afterwards V was rewarded with some chocolate taken from the appellant’s refrigerator.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I might add that in dealing with the grounds of appeal I have read most of the evidence in the case and in particular have examined the evidence of V. In my view her evidence reads convincingly. It is detailed. It demonstrates a good recollection of her thoughts and feelings at the time of these events. In relation to the counts for which the appellant was convicted, there is quite graphic detail about the appellant’s conduct and the games which he devised to encourage her to behave as he wished, which is compelling.Conclusion In my view none of the grounds of appeal has been made good. The appeal should be dismissed. I would make the following orders:1. grant permission to appeal on grounds 14 and 15;2. dismiss the appeal. WHITE J: I agree with the orders proposed by Vanstone J and with her reasons. PEEK J: I agree with the orders proposed by Vanstone J and I agree in substance with her reasons.

Ratio Decidendi

Legal Principle Established

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