R v F, RPJ

Case [2019] SASCFC 68

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v F, RPJ

[2019] SASCFC 68

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hughes)

27 June 2019

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

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

Appeal against conviction.

Following a trial by jury, the appellant was found guilty of one count of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (count 1) and not guilty of one count of gross indecency (count 2) and not guilty of two counts of unlawful sexual intercourse (counts 3 and 4). At the time of the alleged offending the complainant was between six to eight years old and the appellant was the partner of the complainant’s mother.

At trial, the complainant gave direct evidence of the matters she heard, saw and felt with respect to count 1. The complainant’s evidence for count 2 was contradicted in part by evidence from the complainant’s mother, and the complainant’s evidence for counts 3 and 4 relied on certain inferences she had drawn years later when recalling the incidents with the appellant.

The principle ground of appeal was that the verdict of guilty on count 1, was factually inconsistent with the verdicts of not guilty on counts 2, 3 and 4, such as to be unreasonable and not supported by the evidence.

Held per Nicholson J (Kourakis CJ and Hughes J agreeing) dismissing the appeal:

1.  The verdicts returned by the jury are not so inconsistent as to render the conviction on count 1 unreasonable and unsupported by the evidence.

Criminal Law Consolidation Act 1935 (SA) s 56, referred to.
M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348, discussed.
MFA v The Queen (2002) 213 CLR 606, considered.

R v F, RPJ
[2019] SASCFC 68

Court of Criminal Appeal:  Kourakis CJ, Nicholson and Hughes JJ

  1. KOURAKIS CJ:    I would dismiss the appeal for the reasons given by Nicholson J.

    NICHOLSON J.

    Introduction

  2. Following a trial before a jury in the District Court, the appellant was found guilty by majority verdict of the offence of indecent assault (count 1).[1]  He was acquitted, again by majority verdicts, of the alleged offences of gross indecency (count 2)[2] and unlawful sexual intercourse with a person under 12 years (counts 3 and 4).[3]  The appellant now relies on just the one ground of appeal in relation to the conviction on count 1.[4]

    The verdict of guilty on count 1, in particular having regard to the verdicts of not guilty on the remaining three counts, was unreasonable and/or cannot be supported having regard to the evidence.

    For the reasons that follow, I would dismiss the appeal.

    [1] Contrary to section 56 of the Criminal…

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R v F, RPJ [2019] SASCFC 68
Case
[2019] SASCFC 68
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for indecent assault (count 1) in the District Court, where the appellant was found guilty by a majority jury verdict. He had been acquitted of charges of gross indecency and unlawful sexual intercourse with a person under 12 years. The sole ground of appeal argued was that the guilty verdict on count 1 was unreasonable and/or unsupported by the evidence, particularly when considered alongside the not guilty verdicts on the other counts.

The legal issue before the Court of Criminal Appeal was whether the jury's verdicts were so inconsistent as to render the conviction for indecent assault unreasonable, as contemplated by the principles established in *M v The Queen*. This required an examination of the evidence presented at trial, including the complainant's sworn testimony and the appellant's denials, in light of the jury's findings on each of the four counts.

The court reasoned that a jury is at liberty to return different verdicts on separate counts and is entitled to accept part of a witness's evidence while rejecting other parts. The complainant's evidence regarding the indecent assault (count 1) was described as more straightforward than her evidence concerning the other offences. For counts 3 and 4, the complainant's conclusion that the appellant had inserted his penis into her mouth was based on her own later inferences drawn from playing a "food game" and her increased understanding of sexual matters. The court found that a jury could reasonably accept her direct sensory evidence for count 1 but not be persuaded beyond reasonable doubt by her later inferences for counts 3 and 4, especially given her young age at the time and the delay in reporting. The court concluded that the verdicts were consistent with the jury having applied the separate consideration direction and taken a cautious approach to the evidence.

The appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Following a trial before a jury in the District Court, the appellant was found guilty by majority verdict of the offence of indecent assault (count 1).[1] He was acquitted, again by majority verdicts, of the alleged offences of gross indecency (count 2)[2] and unlawful sexual intercourse with a person under 12 years (counts 3 and 4).[3] The appellant now relies on just the one ground of appeal in relation to the conviction on count 1.[4]The verdict of guilty on count 1, in particular having regard to the verdicts of not guilty on the remaining three counts, was unreasonable and/or cannot be supported having regard to the evidence.For the reasons that follow, I would dismiss the appeal.[1] Contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA).[2] Contrary to subsection 58(1)(a) of the Criminal Law Consolidation Act 1935 (SA).[3] Contrary to subsection 49(1) of the Criminal Law Consolidation Act 1935 (SA) as it stood at the time of the alleged offending.[4] Permission to appeal on grounds 2 and 3 in the notice of appeal was earlier refused by a Judge of this Court. Initially, the appellant pursued his statutory right to have permission for grounds 2 and 3 reconsidered by the Court of Criminal Appeal. However, both grounds were later abandoned.Background The complainant was born on 11 July 1996. Each alleged offence was particularised in the Information as having occurred between 28 March 2003 and 28 May 2005 during which period the complainant was between six and eight years of age. However, according to the evidence of the complainant, all of the charged incidents and a number of uncharged incidents occurred either within the same school holiday period or within a period of weeks or months and when she was seven or eight. Prior to, during and after the particularised period, the appellant was in a relationship with and lived with the complainant’s mother. They, together with the complainant, lived in a number of different houses in a South Australian regional area. All of the charged and uncharged incidents were said to have occurred at the Mitchell Avenue house, where just the three were living for most of the particularised period. The appellant had started living with the complainant’s mother when the complainant was one and a half years old. The relationship between the complainant and the appellant was that of child and parent; she called him “dad”. According to the complainant, all of the alleged sexual incidents occurred when she and the appellant were on their own in the house. She said that her mother worked with her grandfather from time to time at which times she left the complainant at home with the appellant.The evidence The prosecution case depended entirely on the jury accepting the complainant’s sworn evidence with respect to each charged incident beyond reasonable doubt and in the face of the appellant’s denials given under oath. However, the prosecution also called a number of other witnesses.The evidence of the complainant’s boyfriend

Evidence

Evidence Before The Court

The second topic of potential relevance concerned what was referred to during the trial as the “food” or “tasting” game. This is a game where the first player must close their eyes while the second player places an undisclosed item of food in their mouth. The first player has to guess the item of food. The complainant’s mother, in her examination-in-chief, said that she used to play this game with her sister when they were young but she did not remember playing it with the complainant, although they might have played it once. During cross-examination, she said that she had no specific memory of ever playing it with the complainant and no memory of playing it in front of the appellant. However, she would have told the complainant about the game.The evidence of the complainant I turn now to review the complainant’s evidence concerning the alleged offending.Count 1 – indecent assault The complainant said that count 1 (indecent assault) was the first incident of sexual misconduct. One morning, when in the house with just the appellant, she went into the bedroom he shared with her mother to see if the appellant was awake. He got out of bed wearing only boxer shorts, stood in front of her and took out his penis. The appellant took the complainant’s hand, put it on his penis and then moved her hand back and forth. The complainant asked to the effect, “Is this OK?” to which the appellant responded to the effect, “Yes, this is fine, as long as we don’t do it for too long”. The complainant said that the appellant had an erection but she could not remember if he had ejaculated. She said that she did not understand what was happening but did not think much of it. The complainant said that after the count 1 incident, the same thing happened on up to five other occasions. She was unable to provide additional detail. On this topic of uncharged alleged sexual misconduct, the complainant said this.Q.Did this same action happen on any other occasion.A.Yes.Q.What can you recall about that.A.So I remember exact same sort of interaction happened a few times. I couldn’t say a specific number, I’m not sure but it did repeat just a few times.Q.Where would that have taken place.A.In the same area, in the bedroom.Q.How many times.A.I would say five or maybe just a little bit less, just a handful of times.Q.Are you able to recall any other details about those occasions.A.Nothing specific that I can remember that is different.Q.How long after the first occasion that you’ve described to the court did those other occasions of sexual assault happen.A.I’m not sure exactly. I interpolate here that the Judge provided a relatively standard direction to the jury concerning how it should treat this evidence of alleged uncharged acts and with respect to which the appellant makes no complaint. Her Honour directed, correctly in my view, that the jury should not make any use of any uncharged act unless they accepted that it occurred and as to the proper process of reasoning if making use of any proved uncharged acts, including the permissible and impermissible uses of such evidence.Count 2 – gross indecency

Decision

Reasons for decision

NICHOLSON J (dissent)
Alternatively, the potential problems with the complainant’s showering evidence, as just outlined, may simply have been sufficient to cause the jury to take a cautious approach to deciding whether or not facts essential to count 2 had been established.Conclusion It does not follow from any of the foregoing that the jury necessarily doubted the honesty of the complainant. It was open to the jury, given the young age of the complainant at the critical time and the lengthy delay before giving evidence, for it to take a cautious approach to assessing the reliability of the complainant’s evidence particularly with respect to counts 2, 3 and 4. Count 1 was a far more straightforward exercise. One can never know the process of reasoning in fact undertaken by the jury. However, in my view the verdicts are quite consistent with the jury having adhered to the separate consideration direction, having taken the liberty to accept as reliable some but not all of the complainant’s evidence, and having taken a cautious, perhaps merciful, approach bearing in mind the heavy responsibility that was upon it. On an application of the earlier identified principles, taken from MacKenzie, to the evidence in this matter I am not persuaded that the verdicts returned by the jury are so inconsistent as to render the conviction on count 1 as unreasonable in the sense articulated in M v The Queen. At a more general level, and upon an application of the test or approach established in M v The Queen, following my review of the whole of the evidence, I am not persuaded that the verdict on count 1 is unreasonable and cannot be supported having regard to the evidence. I would dismiss the appeal. HUGHES J: I agree with the reasons given by Nicholson J. The appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by:

The Judge provided conventional directions on the topics: that the jury was at liberty to return different verdicts with respect to the four charged counts, that is, that the counts do not necessarily stand or fall together; that each offence charged is a separate offence and must be considered separately and independently; and that it was open to the jury to accept part whilst rejecting part of any witness’s evidence. There was no objection taken to the Judge’s directions in these respects either at trial or on appeal. Immediately following the separate consideration direction the Judge added the following.Of course, if you accept the credibility and reliability of one particular witness in respect of one of the counts, that might affect your opinion of that witness’s credibility generally and might affect your consideration of the other counts. But in the end, your attention must be to the individual charges and whether or not the prosecution has proven the elements of that particular charge separately considered beyond reasonable doubt.Consideration I start with the inconsistency said to arise between the verdicts of guilty of count 1 on the one hand and not guilty of counts 3 and 4 on the other. The starting point is that the jury accepted the complainant’s evidence and rejected the appellant’s denials, beyond reasonable doubt, with respect to the former but was not prepared to do so with respect to the latter. However, it does not follow, necessarily, that the jury found the complainant’s evidence with respect to counts 3 and 4 as being either not credible or not reliable. Rather, all that can be concluded is that the jury was not persuaded beyond reasonable doubt by her evidence that those offences had been committed. There is a straightforward potential explanation for this. The complainant did not see what was put in her mouth at any time on either occasion she and the appellant played the food game. She felt and described the object, each time, as “warm and round and fleshy”. She was told it was only a banana. The description she gave might be seen as consistent with it being a banana. Her evidence to the effect that it was “to my knowledge” the appellant’s penis was plainly a product of reconstruction and a conclusion arrived at years later when the complainant was in her mid-teens. She was quite candid about this. Further, with respect to counts 3 and 4 the complainant gave quite different reasons as to her process of reasoning when, as a teenager, she drew the inference that the appellant had inserted his penis into her mouth. With respect to count 3, she said she worked it out years later “once I had seen and touched a penis like knowingly”. With respect to count 4, she made the connection “when I was older and started to learn about you know sexual things. You know at school and on TV and things like that when I became aware”. In these circumstances, a careful jury may well have been prepared to accept the complainant’s direct evidence of the matters she heard, saw and felt – treating her as entirely honest and reliable in these respects – but not been prepared to draw beyond reasonable doubt the same inference later arrived at by the complainant.