R v J, AP - [2013] SASCFC 121

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v J, AP
[2013] SASCFC 121
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Stanley)
14 November 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
CRIMINAL LAW - PROCEDURE - WITNESSES - OTHER MATTERS
Appeal against conviction by jury. The appellant was convicted upon a re-trial of one count of persistent sexual exploitation of a child. The complainant, who is the appellant’s daughter, was between five and six years old during the relevant period. At trial, two interviews with the complainant by a psychologist were tendered pursuant to s 34CA of the Evidence Act 1929 (SA). The complainant gave evidence at the first and second trial.
(1) Whether the verdict of the jury is unsafe and cannot be supported having regard to the evidence
(2) Whether the trial Judge should have warned the jury in terms of s 12A of the Evidence Act 1929 (SA).
Held by Kelly J, dismissing the appeal (Kourakis CJ and Stanley J agreeing):
(1) There was no substantial inconsistency in the complainant’s account of where and in what circumstances the sexual acts were performed, or the number of incidents of sexual exploitation (at [22]-[23]).
(2) The complainant’s lack of memory at the time of the first trial does not suggest unreliability of her initial disclosures (at [31]).
(3) The evidence of the psychologist did not raise doubt as to the complainant’s reliability (at [34]).
(4) The fact that a young child when giving evidence some years after an event may have given inconsistent accounts about matters peripheral to the actual events does not amount to cogent reasons for the purpose of s 12A of the Evidence Act 1929 (SA) (at [41]).
(5) None of the circumstances relied upon by the appellant, either alone or in combination, warranted the giving of a warning under s 12A of the Evidence Act 1929 (SA) (at [46]).
(6) Appeal dismissed.
Held by Kourakis CJ:
(1) Until the question of the relationship between ss 12A and 34CA of the Evidence Act 1929 (SA) is decided, it is probably best for trial judges to treat a statement admitted pursuant to s 34CA of the Evidence Act 1929 (SA) as if it were the evidence of a child for the purposes of s 12A of the Evidence Act 1929 (SA) (at [4]).
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) s 12A, s 34CA, referred to.
R v Mattsson [2011] SASCFC 114; R v Haak (2012) 112 SASR 315, applied.
Douglass v The Queen (2012) 86 ALJR 1086, distinguished.

R v J, AP
[2013] SASCFC 121
Court of Criminal Appeal: Kourakis CJ, Kelly and Stanley JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons…

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 J, AP

Details

AGLC: R v J, AP [2013] SASCFC 121
Case: [2013] SASCFC 121
Decision Date: 14 November 2013

CaseChat Overview and Summary

In R v J, AP, the Court of Criminal Appeal of South Australia considered an appeal against a conviction. The appellant, J, sought to overturn his conviction on the grounds that the verdict was unreasonable or insupportable having regard to the evidence.

The central legal issues before the Court were whether the complainant's evidence was unreliable, and whether certain statutory provisions relating to the evidence of children, specifically sections 12A and 34CA of the *Evidence Act 1929* (SA), required a warning to the jury. The appellant argued that inconsistencies in the complainant's accounts, her memory at the time of the first trial, and the evidence of a psychologist raised doubts about her reliability.

The Court, in dismissing the appeal, found no substantial inconsistency in the complainant's account regarding the location, circumstances, or number of sexual acts. The complainant's lack of memory at the time of the first trial was not considered indicative of unreliability in her initial disclosures. Furthermore, the evidence of the psychologist did not raise doubts as to the complainant's reliability. The Court held that minor inconsistencies in a young child's account of peripheral matters, given years after the event, do not constitute cogent reasons for the purposes of section 12A of the *Evidence Act 1929* (SA). Consequently, none of the circumstances relied upon by the appellant warranted a warning under section 12A. The Chief Justice also noted that, pending a definitive ruling on the relationship between sections 12A and 34CA of the *Evidence Act 1929* (SA), it would be prudent for trial judges to treat statements admitted under section 34CA as if they were the evidence of a child for the purposes of section 12A.

Orders

Orders of the court

Held by Kelly J, dismissing the appeal (Kourakis CJ and Stanley J agreeing):

(1) There was no substantial inconsistency in the complainant’s account of where and in what circumstances the sexual acts were performed, or the number of incidents of sexual exploitation (at [22]-[23]).

(2) The complainant’s lack of memory at the time of the first trial does not suggest unreliability of her initial disclosures (at [31]).

(3) The evidence of the psychologist did not raise doubt as to the complainant’s reliability (at [34]).

(4) The fact that a young child when giving evidence some years after an event may have given inconsistent accounts about matters peripheral to the actual events does not amount to cogent reasons for the purpose of s 12A of the Evidence Act 1929 (SA) (at [41]).

(5) None of the circumstances relied upon by the appellant, either alone or in combination, warranted the giving of a warning under s 12A of the Evidence Act 1929 (SA) (at [46]).

(6) Appeal dismissed.

Held by Kourakis CJ:

(1) Until the question of the relationship between ss 12A and 34CA of the Evidence Act 1929 (SA) is decided, it is probably best for trial judges to treat a statement admitted pursuant to s 34CA of the Evidence Act 1929 (SA) as if it were the evidence of a child for the purposes of s 12A of the Evidence Act 1929 (SA) (at [4]).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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