R v K, GA - [2019] SASCFC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v K, GA
[2019] SASCFC 2
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Parker)
18 January 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES
EVIDENCE - WITNESSES - SWEARING AND OATHS - CAPACITY IN GENERAL - YOUNG CHILDREN
Appeal against conviction.
The applicant was found guilty following trial by judge alone of one count of persistent sexual exploitation of a child and not guilty of a second count of aggravated communicating for a prurient purpose with the intention of making a child amenable to sexual activity.
When the complainant was six and a half years old she was interviewed by a psychologist. The recorded interview was admitted as evidence at trial. Letters written by the applicant and sent to the complainant through covert means were also tendered as evidence.
The applicant appeals the conviction on the grounds that the Judge erred in being satisfied that the complainant was capable of giving unsworn evidence at the time the recorded interview was made in accordance with s 13BA(3)(b) of the Evidence Act 1929 and that the letters sent by the applicant to the complainant were not properly admitted in proof of the count of which he was convicted.
Held per Kelly J (Vanstone J and Parker J agreeing) granting permission to appeal in respect of both grounds of appeal but dismissing the appeal:
1. The Judge was entitled to conclude that the complainant was capable at the time of the interview of giving unsworn evidence in accordance with s 13BA(3)(b) of the Evidence Act 1929.
2. The letters were properly admitted as part of the circumstantial case in respect of both counts.
Criminal Law Consolidation Act 1935 (SA) s 50, s 63; Evidence Act 1929 (SA) s 13BA, s 34P, referred to.
McPhillamy v The Queen [2018] HCA 52; The Queen v Bauer [2018] HCA 40; R v Sparks [2017] SASCFC 171, considered.

R v K, GA
[2019] SASCFC 2
Court of Criminal Appeal: (Vanstone, Kelly & Parker JJ)
VANSTONE J:

I would dismiss the appeal. I agree with the reasons written by Kelly J.
KELLY J:
Introduction
Following a trial by judge alone the applicant was found guilty of one count of persistent sexual exploitation of a child contrary to s.50(1) of the Criminal Law Consolidation Act 1935 (count 1). The Judge found him not guilty of a second count of aggravated communicating for a prurient purpose with the intention of making a child amenable to sexual activity contrary to s.63B(3) of the Criminal Law Consolidation Act 1935 (count 2).
The applicant appeals the conviction on count 1 on two grounds.
Ground 1 is a complaint that the Judge erred in being satisfied that the complainant was capable of giving unsworn evidence at the time a recorded interview was made…

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 K, GA

Details

AGLC: R v K, GA [2019] SASCFC 2
Case: [2019] SASCFC 2
Decision Date: 18 January 2019

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, R, against his conviction for offences committed against a complainant who was between approximately three years and six months and four years and six months old at the time. The alleged offences occurred over a period of about nine months prior to April 2013, and further communications were alleged to have occurred between July 2013 and February 2015. The appeal was heard by Vanstone, Kelly, and Parker JJ.

The central legal issues before the court were whether certain letters written by the applicant to the complainant were improperly admitted as evidence at trial. Specifically, the court considered whether these letters, which were placed by the applicant in sleeves attached to a dolls' house and a bedroom drawer, should have satisfied the test set out in s.34P(2) of the relevant Act, and whether their probative value was sufficient to be admitted even if they constituted discreditable conduct.

The court reasoned that the letters were properly admitted as part of the circumstantial case against the applicant for both counts. It was held that the letters did not need to satisfy the specific test in s.34P(2) of the Act. Furthermore, even if the letters were considered discreditable conduct, their probative value was such that they would have met the threshold for admission in any event. The court therefore granted permission to appeal in respect of this ground but ultimately dismissed the ground of appeal.

Orders

Orders of the court

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Background

Background to the litigation

Before dealing with the issues which arise on the appeal it is convenient to set out the relevant factual background.Factual background The allegations at trial were that the applicant committed both of the charged offences against the complainant, who was the granddaughter of the applicant’s then partner, at a time when the complainant was aged between approximately three years and six months and four years and six months. The offences the subject of count 1 occurred whilst the complainant and her older brother, J, were being baby-sat by their grandmother in her home at McCracken over a period of about nine months prior to 25 April 2013. In late April 2013, the complainant’s grandmother observed the applicant alone with the complainant in her garage. The applicant’s van was parked in the garage at the time. The grandmother heard a noise consistent with someone closing the door of the van. She observed that the curtain was drawn in the van. The applicant and the complainant at that time had been alone in the van. The grandmother did not observe any sexual activity on that occasion, however it caused her such concern that she determined to ask the applicant to leave her home. In accordance with the grandmother’s demand, the applicant left the McCracken house on 25 April 2013 in his van and moved interstate. At that stage the grandmother did not inform the complainant’s parents of any concerns and only made brief mention of them when asked by the complainant’s mother as to why the applicant had left her house. Nevertheless, there was an arrangement between the complainant’s parents and grandmother that the applicant would not be permitted to see the complainant or her brother again. About three months later, in July 2013 while he was still residing interstate, the applicant sent a birthday card to the grandmother’s sister and telephoned her. The complainant and her brother were present at the McCracken house at the time and spoke with the applicant on the telephone. On 3 October 2013 the complainant and her brother sent a birthday card to the applicant. From that time until his return to South Australia the relationship between the applicant and the grandmother gradually resumed, with contact by telephone or Skype. The grandmother permitted the applicant to speak with the complainant and her brother on Skype when they were staying with her at the McCracken house. From about July 2014 the applicant occupied a unit near the grandmother’s home. By December 2014 he was attending the grandmother’s home regularly, however he was not permitted when the complainant and her brother were there. At about that time, the grandmother noticed the applicant going upstairs from time to time in the vicinity of where a dolls’ house was located. On 20 February 2015 the grandmother discovered letters written by the applicant to the complainant. The prosecution case was that these were only some of the communications that the applicant had written to the complainant as others had been destroyed by the complainant. The letters had been placed by him in “sleeves” attached by him to the complainant’s dolls’ house and to the exterior surface of a drawer in the complainant’s bedroom.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons, I consider that the letters were properly admitted as part of the circumstantial case in respect of both counts. They did not need to satisfy the test set out in s.34P(2) of the Act. However, even if I am wrong and they did constitute discreditable conduct, the probative value of the letters was such that it would have met the threshold test in any event. For these reasons I would grant permission to appeal in respect of this ground, however I would dismiss this ground of appeal.Conclusion In summary, I would grant the applicant the extension of time sought within which to file the Notice of Appeal until 27 June 2018. I would grant permission to appeal in respect of both grounds, however I would dismiss both grounds of appeal.PARKER J: I agree with the reasons of Kelly J and the orders she proposes.

Ratio Decidendi

Legal Principle Established

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