R v KIELY - [2016] SASCFC 151

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KIELY
[2016] SASCFC 151
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Lovell)
21 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - PROCEDURE - WITNESSES - CROSS-EXAMINATION - GENERALLY
Application for permission to appeal against conviction. Applicant found guilty by judge sitting without a jury of aggravated indecent assault.
Where statements of complainant and another child tendered pursuant to the then s 34CA of the Evidence Act 1929 (SA). Where children gave unsworn evidence. Where Judge granted permission to the defence to cross-examine on the incident itself and on some incidents occurring at school but refused permission to cross-examine complainant on other school incidents.
Whether Judge erred in refusing permission to cross-examine on some incidents. Whether verdict is unreasonable or cannot be supported having regard to the evidence.
Held (per Vanstone J, Kourakis CJ and Lovell J agreeing): Application dismissed. It is not reasonably arguable that the Judge should have granted permission to cross-examine on all the incidents. To have done so would have been to rob the section of any confining effect and to have undermined the purpose of the provision. Cross-examination on the other incidents would have had little bearing on the assessment of the complainant’s evidence. The verdict of guilty was both open and just.
Held (per Kourakis CJ): Admission of a statement under s 34CA of the Evidence Act 1929 (SA) requires a Judge to be satisfied, on the balancing of various considerations, that the exercise of the discretion is justified. Whether that discretion miscarried raises a question of law, appeal on this ground lies as of right.
Evidence Act 1929 (SA) s 34CA, referred to.
Gately v The Queen (2007) 232 CLR 208; M v The Queen (1994) 181 CLR 487; R v J, JA (2009) 105 SASR 563; R v Nguyen (2010) 242 CLR 491, considered.

R v KIELY
[2016] SASCFC 151
Court of Criminal Appeal: Kourakis CJ, Vanstone and Lovell JJ

KOURAKIS CJ: This is an appeal against conviction for aggravated indecent assault entered after a trial by judge alone in the District Court. The offence occurred on 9 June 2015 outside a small local supermarket. The victim, C, and his sister, P, had visited the supermarket to buy some items for their mother. C was eight years of age. The prosecution case was that the applicant approached C as he waited for his sister, asked him whether he would like to be accompanied home and, when the offer was declined, handled his penis from the outside of his clothing.
C made a statement about the incident to police on the next day. The statement was admitted into evidence pursuant to s 34CA of the Evidence Act 1929

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 KIELY

Details

AGLC: R v Kiely [2016] SASCFC 151
Case: [2016] SASCFC 151
Decision Date: 21 December 2016

CaseChat Overview and Summary

The applicant, R v KIELY, sought permission to appeal against a conviction for aggravated indecent assault following a trial in the District Court. The complainant, an eight-year-old boy referred to as "C", was accompanied by his ten-year-old sister, "P", at the time of the alleged offence. The applicant approached the children after they left a supermarket and allegedly touched C's penis over his clothes. P did not witness the touching but heard C complain immediately afterwards.

The court was required to determine two grounds of appeal. The first ground concerned the trial judge's refusal to permit cross-examination of C regarding alleged misbehaviour at school. The second ground argued that the verdict was unreasonable or unsupported by the evidence, focusing on alleged inconsistencies in C's accounts of the incident.

Regarding the refusal to allow cross-examination on school incidents, the court considered whether this constituted a question of law or an evaluative judgment. Applying the principles from *R v De Angelis*, the court held that such a decision involved an evaluative judgment by the trial judge based on the material and witnesses before him, and that the appellate court should be slow to interfere unless convinced the decision was wrong. On the ground that the verdict was unreasonable, the court noted the inconsistencies highlighted by the defence between C's various statements to police and in cross-examination, as well as discrepancies between C's and P's accounts. However, the trial judge had considered these inconsistencies and found them not to be significant, characterising C as a bright, articulate, and good witness for his age, without signs of evasiveness or embellishment.

The court dismissed the application for permission to appeal on both grounds. The Chief Justice would have refused permission on the ground that the verdict was unreasonable, and Vanstone J agreed with the reasons provided by the Chief Justice.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I would refuse permission to appeal on this ground.Ground 3 – complaint that the verdict is unreasonable or cannot be supported having regard to the evidence The applicant’s counsel drew attention to a number of inconsistencies as between the various account of the incident given by C to the police, his mother and the Court. These were put to C in cross-examination. They were referred to as “internal inconsistencies”. Mr Allen contended that a significant degree of exaggeration and variation was apparent in the accounts C gave of the incident. A helpful table summarising the relevant statements was set out in counsel’s outline of argument. The contrast drawn was between the first interview which C gave the day after the incident, the second interview he gave which was on 13 August 2015, and the cross-examination of the complainant. It is not necessary to refer to all of the points made. The flavour of them can be gained from the principal ones. Mr Allen contrasted C’s original statement that the man “walked past me and touched my part” with the statement in cross-examination to the effect that the man had been doing it for “about 30 seconds”, and again with the statement in the second interview to the effect that the man “rubbed his hand and squeezed it as tight as he could”. Reference was made to the boy’s statement in cross‑examination that he did not call out when the man was doing it, as against his statement in the second interview that when the man ran off he yelled out to P. Then, in the second interview C said that he “went to smack his hands and he pulled it away fast and I just hit the tip of his fingers”. That allegation was not previously made. Next, reference was made to the man’s conduct after the event. In cross-examination C said that the man was gone by the time P walked up to him. However, in the second interview, he said he saw the man hiding behind a tree and that his sister went to have a look to find him. Further, in the initial interview he said that, after the event, he and his sister had talked about what had happened and what the man looked like but, in cross-examination, he denied having done so. In cross-examination, he said he told his mother that he had said to the man, “Don’t do that or my mum will call the police” but, later, he denied having said that. There were also inconsistencies as between C’s and P’s accounts of the incident. In cross-examination C claimed he had complained to P immediately, whereas P said it was she who asked C whether he was okay, thereby eliciting the complaint. The Judge was addressed by defence counsel about these inconsistencies. At [33] – [39] the Judge summarised the main inconsistencies and discrepancies. The Judge said he did not regard the discrepancies as significant. The Judge then said this, at [40]:C is a bright and quite an articulate child. His responses to Detective Brevet Sergeant Lisle in the interview, and in court to counsel, were appropriate and thoughtful. There was no sign of evasiveness or reconstruction, nor of a desire to embellish his evidence. Having regard to his age, at the time of the interview and at trial, he was a good witness.The Judge referred also to P’s evidence. His Honour found nothing surprising in the fact that she did not see the touching. She gave evidence of the recent complaint by C.

Decision

Reasons for decision

I would dismiss the application for permission to appeal on the ground that the verdict was unreasonable for the reasons given by Vanstone J.Conclusion I would order:1Appeal on ground 2 dismissed.2Application for permission to appeal on ground 3 dismissed. VANSTONE J: After a trial before a District Court Judge sitting without a jury, the applicant was convicted for aggravated indecent assault. He applies for permission to appeal against that conviction.Background At the time of the offence, being 9 June 2015 in the afternoon, the victim, “C”, had recently turned eight years of age. During the relevant incident, he was accompanied by his sister, “P”, who was 10 years of age. The two children were asked by their mother to go to the nearby IGA Supermarket to get some butter. C took his bicycle and P was on foot. When they left the store they were approached by the applicant, who asked if they wished him to walk them home. P declined. She was a bit behind C and preoccupied with something she had dropped. It was alleged that the applicant then approached C and touched his penis over his clothes. P did not observe this, but C immediately complained to her. At that, P telephoned their mother, who told them to go into the supermarket and to wait for her there. Their mother contacted police before hurrying to meet her children. The applicant was seen on the supermarket’s closed circuit television. The description given by C of the man and his clothing was said by the Judge to be “quite accurate”. The applicant was arrested on 26 June 2015. When police explained the nature of the allegation, he told them he did not know what they were talking about. Further on in the interview he said he might have seen two children at the IGA Supermarket and asked them if they were alright. Later, when he gave evidence at trial, he acknowledged an incident concerning two children at the relevant location and said that he might have asked them something along the lines of “Are you all right to get home by yourself?”. At the trial, the recorded police interviews with both C and his sister, P, were tendered pursuant to s 34CA of the Evidence Act 1929 (SA). (This section was repealed on 1 July 2016.) Both children gave unsworn evidence. The application for permission to appeal originally contained three grounds. Permission was granted by a single Judge on ground 1, but ground 1 is no longer pursued. Permission to appeal on grounds 2 and 3 was referred to the Full Court. The applicant now renews his application based on those grounds. Ground 2 complains that the trial Judge erred in refusing to permit cross-examination of C about incidents at his school in which he was reported as misbehaving. In his reasons, the Chief Justice categorises this question as one of law, giving rise to an appeal as of right. I respectfully disagree. In my mind it involves an evaluative judgment by the Judge based on the material and the witnesses before him. In R v De Angelis (1979) 20 SASR 288 King CJ considered a decision made at a trial of sexual charges to refuse to grant leave for cross-examination of the complainant on her previous sexual experiences. Section 34(i) of the Evidence Act 1929 (SA) provided that such leave should not be granted except where the judge was “satisfied” of the relevance of the evidence and that its introduction was justified. King CJ (with the concurrence of Jacobs J) said, at 294:The question whether the introduction of evidence of prior sexual experiences and sexual morality is justified is one for the determination of the trial Judge. In my opinion, this Court should be slow to interfere with that determination and should do so only when convinced that it is wrong.The use of that terminology suggests to me that King CJ categorised the relevant issue as one involving a question of mixed fact and law. If so then permission to appeal would be required. I take the same view about a determination made under s 34CA(2).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.