R v Haak

Case [2012] SASCFC 19

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 19

Court of Criminal Appeal:       Sulan, Kourakis and Stanley JJ

  1. SULAN J: I would dismiss the appeal.  I agree with the reasons of Kourakis J.

  2. 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.

  3. 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

This case concerned an appeal against a conviction for unlawful sexual intercourse. The appellant, R v Haak, was convicted by a judge alone of one count of unlawful sexual intercourse with a complainant who was five years old at the time of the alleged offence and six years old at the trial. The complainant gave unsworn evidence, and two out-of-court video statements were tendered pursuant to s 34C of the *Evidence Act 1926*. The appellant’s grounds of appeal were that the trial judge erred in failing to warn himself pursuant to s 12A of the *Evidence Act 1929* (SA), and that the verdict was unreasonable and not supported by the evidence.

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant appeals his conviction on the grounds that the Judge failed to warn himself in accordance with s 12A of the Act and that the verdict was unreasonable and could not be supported on the evidence. I will assume for the purposes of the first ground, even though I very much doubt the proposition, that a Judge sitting without a jury is obliged to administer the warning contemplated by that section to himself or herself. However, I would dismiss the appeal on both grounds because the inconsistencies and improbabilities on which the appellant relies give no cogent reason, within the meaning of that term in s 12A of the Act, to doubt C’s evidence and do not give any reason at all to doubt the soundness of the convictions.The Evidence On the long weekend of June 2010 C was staying with her father in accordance with standing access arrangements. C’s father shared the house with his girlfriend and her two sons who were then aged 14 and 10. The eldest son slept in a caravan in the yard. C’s father invited the appellant and his two young sons, who were then aged four and two, to his house for a barbeque on the Saturday of that weekend, and to stay overnight. After the barbeque the appellant and his two sons slept together on a mattress in the family room. C went to bed in her own room which had doors opening into the family room. C’s father slept in another room with his girlfriend. Nothing of significance occurred when everyone awoke the next morning. After breakfast C’s father drove the appellant and his sons to the train station to travel home. C did not make a complaint to her father whilst she stayed with him for the remainder of the weekend. On the holiday Monday following the weekend, C returned to her mother’s care. On the same day C complained to her mother of the appellant’s conduct. Whilst preparing for a shower, C told her mother that at her father’s house a man called Matt had got into bed with her and touched her fanny and her bottom. C’s complaint to her mother was admitted pursuant to s 34M of the Act, as evidence of initial complaint; the prosecution did not rely on it as to the truth of its contents. C was interviewed by a psychologist on the next day, 15 June 2010 (the first interview). During the first interview C stated that her daddy’s friend came into her room and asked if he could sleep with her. She later said that the friend was called Matt and that he had been sleeping with his sons on mattresses in another room. C stated that Matt wiggled his finger in her fanny and that she asked him to stop, but he did not. C said that she tried to call out to her dad but that the appellant kept wiggling his finger until she fell asleep. She claimed that he touched her fanny heaps of times. During the first interview C said that she was wearing her pyjamas at the time. C described the appellant’s face as happy at first but that he became scared when he realised that she had awoken. C said he had an angry face when he was touching her and that he was hitting her on her stomach.

Decision

Reasons for decision

C’s reference to the naughtiness of the appellant’s children can be understood as an attempt to retrospectively explain the conduct which was perpetrated against her. If C was assaulted on that night, the evidence overwhelmingly pointed to the appellant. C’s father was cross-examined. It was not put to him that he had assaulted his daughter. There is no possibility that C could have confused her father’s girlfriend’s children, or the appellant’s very young children, for the appellant. There was no other adult with whom C might have confused the appellant. She correctly described him by his name. Indeed at one point during the first interview the psychologist incorrectly referred to the appellant as Michael, prompting C to laugh at her mistake.Conclusion I acknowledge that it is the combined affect of the inconsistencies which must be assessed. I have done so. I also accept, as I have already indicated, that some features of C’s accounts are the product of her limited cognitive development and command of language. However, those features are relatively minor in comparison to the consistency and coherence of the core of her description of the offending. In my view, having regard to C’s description of the conduct, the reliability of her evidence is enhanced, not undermined, by her youth. I have formed the strong view that the inconsistencies more probably reflect C’s capacity to recall and relate ancillary detail than any mistake on her part about the appellant’s conduct. The aspects of C’s testimony on which the appellant relies do not give me any reason to think that C’s account of the offending might be the false product of her limited cognitive capacity. I find therefore that there were no cogent reasons to give the child witness warning. If I were to consider the appellant’s complaint based on s 12A of the Act by reference to the Judge’s obligation to give reasons and the possibility of a miscarriage, I would also dismiss the appeal. The Judge’s reasons show that he carefully scrutinised C’s evidence against the criticisms which have been made. In my view, the Judge has adequately explained why he convicted the appellant on C’s evidence notwithstanding her very young age. The Judge had the advantage, albeit limited given the course of the evidence in this particular case, of assessing C’s testimony. That assessment in turn informed his evaluation of the statements made in the first and second interviews. The Judge was favourably impressed by C’s testimony and formed the provisional view that it was truthful and accurate. He found that C was spontaneous and convincing in her first interview. The Judge found the appellant’s evidence less convincing. The Judge preferred the evidence of C’s father about the quantity of alcohol which the appellant consumed on the evening. The Judge found that the appellant had “well over a full bottle of bourbon” and was “obviously drunk.” He found that the appellant deliberately minimised his drinking. He referred to the criticisms of C’s evidence which were repeated on this appeal. He then concluded:I consider all of those things were a young person trying to honestly answer, and where inaccurate were honest mistakes or misrecollection, which I find do not affect the truthfulness or reliability of her other evidence to which I have referred.

Ratio Decidendi

Legal Principle Established

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