SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v HAAK
[2012] SASCFC 19
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Kourakis and The Honourable Justice Stanley)
14 March 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - OTHER MATTERS
Appeal against conviction – appellant convicted on trial by judge alone of one count of unlawful sexual intercourse – complainant was aged five years at time of offence and six years at trial – complainant gave unsworn evidence and two out-of-court video statements were tendered pursuant to s 34C Evidence Act 1926 – appellant relied on inconsistencies and improbabilities in the evidence - whether the trial judge erred in failing to warn himself pursuant to s12A Evidence Act 1929 (SA) – whether, having regard to the evidence, the verdict was unreasonable and not supported.
Held: appeal dismissed – the deficiencies in the complainant’s evidence relied upon by the appellant do not provide cogent reason to doubt her evidence or provide reason to doubt the soundness of the convictions.
Evidence Act 1929 (SA) 9, 12A, 34CA; Statutes Amendment (Evidence and Procedure) Act 2008 (SA) 12; Evidence Act 1995 (Cth) 164, 165, 165A, 165B; Eividence Act 1995 (NSW) 164, 165, 165A, 165B; Evidence Act 2001 (Tas) 164, 165, 165A, 165B; Evidence Act 2008 (Vic) 164, 165, 165A, 165B; Evidence Act 1977 (Qld) 93C; Evidence Act (NT) 9C, 21A(3); Evidence Act 1906 (WA) 36BD, 50, 106D; Criminal Procedure Act1986 (NSW) 133(3); Criminal Procedure Act 2004 (WA) 119(3), referred to.
R v Pahuja (1987) 49 SASR 191; R v Morgan [1978] 3 All ER 13, discussed.
R v Douglas [2010] SASCFC 66; R v Miller [2006] SASC 83; R v R [2008] SASC 35; R v HS (2004) 90 SASR 28, considered.
R v HAAK
[2012] SASCFC 19Court of Criminal Appeal: Sulan, Kourakis and Stanley JJ
SULAN J: I would dismiss the appeal. I agree with the reasons of Kourakis J.
KOURAKIS J: On 31 August 2011 the appellant was convicted on one count of unlawful sexual intercourse following a trial by judge alone in the District Court. The particulars of the offence alleged digital vaginal penetration of the complainant, C, a five-year old girl, over the Queens Birthday long weekend in June 2010. The appellant was acquitted on a count of digital anal penetration alleged to have been committed on the same occasion. The Judge entertained a reasonable doubt about the commission of that offence because the complainant failed to make any mention of it when she was first interviewed by a psychologist several days later.
The prosecution case relied largely on the unsworn testimony of C and statements of C, in the form of…
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- R v Haak [2012] SASCFC 19
- Case
- [2012] SASCFC 19
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the trial judge had a duty to issue a warning to himself under s 12A of the *Evidence Act 1929* (SA) when sitting alone, and whether the verdict of guilty was unreasonable or unsupported by the evidence, having regard to the alleged inconsistencies and improbabilities in the complainant's testimony. The appellant relied on these perceived deficiencies in the complainant's evidence to argue that her testimony should not have been accepted.
The court dismissed the appeal. While acknowledging the appellant's arguments regarding inconsistencies, the court found that these did not provide cogent reasons to doubt the complainant's evidence or the soundness of the convictions. The judge reasoned that the inconsistencies and improbable aspects of the complainant's account were more likely attributable to her limited cognitive development and command of language, rather than any fundamental inaccuracy about the appellant's conduct. The court noted that the complainant correctly identified the appellant by name and that there was no plausible alternative perpetrator. The trial judge's reasons demonstrated a careful scrutiny of the complainant's evidence against the criticisms raised, and the judge was favourably impressed by the complainant's testimony, finding her spontaneous and convincing. The judge also found the appellant's evidence less convincing, particularly regarding his consumption of alcohol.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
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