R v Hore - [2010] SASCFC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HORE
[2010] SASCFC 60
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Kourakis)
25 November 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
Appellant convicted following trial by Judge alone in the District Court of one count of aggravated indecent assault - circumstance of aggravation was that the complainant was a person under the age of 14 years - number of uncharged acts alleged, conclusion that those allegations had been proved beyond reasonable doubt - where inconsistencies arose on the evidence - whether trial Judge failed to identify a basis to reject the evidence of the appellant's father which supported the appellant - appeal on the basis that verdict was unsafe and unsatisfactory.
Held: appeal dismissed.
(Gray J, White J agreeing) Trial Judge carefully addressed the inconsistencies which arose in the complainant's evidence - trial Judge entitled to accept evidence of some witnesses and reject that of others - no error demonstrated.
(Kourakis J) Discussion regarding role of the appellate court - the inconsistencies relied on by appellant leave no doubt about guilt - trial judge enjoyed forensic advantage which is capable of dissipating any concern arising on the face of the transcript alone - the verdict was supported by the evidence.
Criminal Law Consolidation Act 1935 (SA) s 56, referred to.
R v Hore [2010] SADC 72; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; R v Weetra [2004] SASC 337; R v Shueard (1972) 4 SASR 36; R v C [2006] SASC 334; R v Nguyen [2010] HCA 38, considered.

R v HORE
[2010] SASCFC 60
Court of Criminal Appeal Gray, White and Kourakis JJ
GRAY J.

This is an appeal against conviction.
Following a trial before a Judge alone in the District Court, the defendant and appellant, Darryl Martin Hore, was convicted of the offence of aggravated indecent assault contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA). The circumstance of aggravation alleged was that the complainant was a person under the age of 14 years.
Initially two grounds of appeal were advanced. First, it was said that the trial Judge had made a finding of fact that was not open on the evidence. Second, it was contended that in all the circumstances, the verdict of guilty was unsafe and unsatisfactory. Permission to appeal was granted primarily on the basis of the matters asserted in the first ground of appeal. On the hearing of the appeal, this ground was abandoned as a discreet ground. It was said that the particular complaints advanced under that ground were to…

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 Hore

Details

AGLC: R v Hore [2010] SASCFC 60
Case: [2010] SASCFC 60
Decision Date: 25 November 2010

CaseChat Overview and Summary

The appellant, R v Hore, was convicted in the District Court of one count of aggravated indecent assault, with the circumstance of aggravation being that the complainant was under the age of 14 years. The appeal was brought on the basis that the verdict was unsafe and unsatisfactory, with the appellant contending that inconsistencies in the evidence rendered the conviction unreasonable.

The legal issues before the court were whether the trial judge erred in rejecting the evidence of the appellant's father, and more broadly, whether the verdict of guilt was unsafe and unsatisfactory due to inconsistencies in the complainant's testimony and other evidence presented. The court was required to consider the principles governing appellate review of convictions, particularly in relation to the assessment of evidence and the determination of whether a jury (or in this case, a judge sitting alone) must have entertained a doubt about the appellant's guilt.

The court dismissed the appeal, finding that the trial judge was entitled to accept certain evidence and reject other evidence, and had provided clear reasons for accepting the complainant's testimony. The judge's assessment of the evidence, including the forensic advantage of observing witnesses, dissipated any concerns arising from inconsistencies in the transcript. The court applied the principles established in cases such as *Libke v The Queen* and *M v The Queen*, which outline the test for appellate intervention on the grounds of unreasonableness. This test requires an appellate court to determine whether it was open to the fact-finder to be satisfied of guilt beyond reasonable doubt, and whether the fact-finder's advantage in hearing the testimony was capable of resolving any doubts.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

However, be that as it may, on my assessment of the evidence it will not be necessary to deal with the issues to which I have referred on this appeal. For the reasons which follow the inconsistencies on which the appellant relies do not leave me in any doubt about his guilt. Moreover the factual matters canvassed by the appellant are of such a nature that the forensic advantage enjoyed by the Judge is capable of dissipating any concern arising on the face of the transcript alone.The Evidence The complainant, B, was 13 years of age at the time of the offence. After his parents separated he resided with his father. Early in 2007, following a disagreement with his father, he commenced to reside with his mother, Mrs N. Mrs N had by that time remarried and had three young children. At the time B went to live with his mother she was again experiencing marital difficulties. In about May 2007 Mrs N formed a friendship with the appellant. The relationship continued until about November 2007. During that time Mrs N was casually employed in a take-away food shop. Her hours were irregular. The appellant assisted her by taking her children to school and picking them up after school. When B commenced living with his mother the appellant also took him to and from school. In addition, he took B on a number of recreational activities. Eventually B started staying overnight at the appellant’s house. The appellant was at that time residing with his father, Mr H. Mrs N testified that B commenced to stay over with the appellant on weeknights “soon after” they had met and that, on occasion, she would herself sometimes put B to bed in the appellant’s bedroom. Mrs N gave evidence that in about October or early November 2007, she asked her son if the appellant had behaved improperly towards him. At that time B denied any improper contact with the appellant. Mrs N explained that later, in about 2009, B confided in her that the appellant had “molested” him. B testified that he went to stay with the appellant after Mrs N and the appellant decided that it would be easier for him to stay over because the appellant’s house was closer to school. Initially he saw the appellant as a fatherly figure. He took him bowling, go-karting and to the Gepps Cross “laser skirmish” facility. According to B, the appellant also promised to buy him a racing car. B testified that he spent time overnight at the appellant’s house over a period of “about three months possibly”. B described in evidence a morning routine which included showering and then dressing in the appellant’s bedroom in front of a heater. It was the appellant’s suggestion that he dry off in front of the heater. B testified that on occasions he came out of the shower to find that his clothes, which he had laid out to get changed into, had been taken away. In the bedroom there was a camera which was focused on the area in front of the heater. B testified that he confronted the appellant about an occasion on which it appeared to him that the camera was running when he came out of the shower. B explained that he could tell the camera was operating because it had both a red light and a green light which indicated when the camera was operating.

Decision

Reasons for decision

GRAY J (dissent) WHITE J (dissent)

In my view the appeal should be dismissed. The Judge was entitled to accept the evidence of some witnesses and reject that of others. The Judge in the present case did so and provided clear and cogent reasons for his acceptance of the complainant’s evidence. The acceptance of that evidence necessarily provided a clear basis for being satisfied that each of the elements of the charged offence had been established. The submission that the Judge’s verdict was unsafe or unsatisfactory should be rejected.Conclusion I would dismiss this appeal. I agree that the appeal should be dismissed for the reasons given by Gray J. KOURAKIS J: The appellant was convicted of one count of aggravated indecent assault following a trial by judge alone. He appeals on the ground that the verdict was unreasonable. The appellant contends that inconsistencies between the complainant’s testimony and his earlier statements, and between his testimony and the testimony of other witnesses, render the conviction unreasonable. Before turning to the evidence I wish to make some observations on the nature of the unreasonable ground which arise out of the trial Judge’s observation that the demeanour of the witnesses did not assist in determining their truthfulness. In Libke v The Queen[8] Hayne J (with whom Gleeson CJ and Heydon J agreed) framed the question for an appellate court, considering a challenge to a conviction on the ground of unreasonableness, in this way:[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[9] Emphasis in original. Citation omitted[8] (2007) 230 CLR 559.[9] Libke v The Queen (2007) 230 CLR 559 at [113]. That passage equates the tests posed by both the majority and minority in M v The Queen.[10] The critical difference between the majority[11] and minority[12] judgments in M is the significance of the existence of a doubt experienced by the appellate court. On the test proposed by the majority if the appellate court entertains such a doubt, the verdict is unreasonable unless the jury’s advantage in hearing the testimony is capable of resolving the doubt.[13][10] (1994) 181 CLR 487.[11] (1994) 181 CLR 487 at 494-5 per Mason CJ, Deane, Dawson and Toohey JJ and at 508 per Gaudron J.[12] M v The Queen (1994) 181 CLR 487 at 501-2 per Brennan J and at 525 per McHugh J.[13] M v The Queen (1994) 181 CLR 487 at 494-5. The articulation of the test for appellate intervention on the unreasonable ground in M must be understood in the context of the forensic issues at M’s trial, where both the complainant and the accused gave evidence. The application of the single “fused” test stated in Libke may be problematic where the jury could not have derived any benefit from hearing the witnesses because, for example, the prosecution case was almost entirely dependent on circumstantial evidence. In such cases, which will be rare, applying the test of the majority in M, a doubt held by the Court of Criminal Appeal, is a doubt which the jury must have entertained and the verdict will therefore be unreasonable. However, on the test stated by the minority, the verdict would only be quashed as unreasonable if the jury acting reasonably was “bound” to have entertained the doubt,[14] or if the jury had acted “irrationally”[15] in rejecting a possibility consistent with innocence. The minority approach is more consistent with the precept, accepted by the majority in M[16] that the Court of Criminal Appeal must have regard to the consideration that the primary responsibility for determining guilt or innocence rests with the jury. The test framed in Libke also suggests that in a circumstantial case a verdict should only be set aside if the jury “must” have recognised that the prosecution had not excluded all hypothesis consistent with innocence. However, in the absence of a clear resolution of this remaining uncertainty, I will proceed on the basis that in a case where the demeanour of witnesses is of no significance the Full Court of this State should give effect to any doubt it entertains.[14] M v The Queen (1994) 181 CLR 487 at 502.[15] M v The Queen (1994) 181 CLR 487 at 524.[16] (1994) 181 CLR 487 at 493.

Ratio Decidendi

Legal Principle Established

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