R v Landmeter

Case [2015] SASCFC 3

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LANDMETER

[2015] SASCFC 3

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Peek and The Honourable Justice Bampton)

4 February 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD

Appeal against conviction - appellant convicted by verdict of a jury for persistent sexual exploitation of a child - whether evidence of elaboration of initial complaint was admissible - whether the judge erred in failing to direct as to the use of what were described as uncharged acts being acts which were other than those particularised.

Held per Vanstone and Bampton JJ (Peek J dissenting):  appeal dismissed.

Evidence Act 1929 (SA) s 34L, s 34M(4), s 34M(6), s 34N, s 34P, s 34R; Criminal Law Consolidation Act 1935 (SA) s 50; Statutes Amendment (Evidence and Procedure) Act 2008 (SA) s 18, referred to.
R v Maiolo (No 3) [2014] SASCFC 89; R v A, GP (2012) 113 SASR 146; R v J, JA (2009) 105 SASR 563; R v England (2013) 116 SASR 589; R v Coutts [2013] SASCFC 143; R v Lillyman [1896] 2 QB 167; R v Usher (2014) 119 SASR 22; Breen v The Queen (1976) 180 CLR 233; R v RH [2004] VSCA 231; R v H, T (2010) 108 SASR 86; R v S, DD (2010) 109 SASR 46; R v Szejnoga (1998) 199 LSJS 97; R v Maiolo (No 2) (2013) 117 SASR 1; R v S (2002) 129 A Crim R 339, considered.

R v LANDMETER
[2015] SASCFC 3

Court of Criminal Appeal:  Vanstone, Peek and Bampton JJ

  1. VANSTONE and BAMPTON JJ:   After a short trial before Judge and jury the appellant was convicted for persistent sexual exploitation of a child.

  2. Two grounds of appeal are agitated.  The first asserts that inadmissible evidence of complaint was received and the second asserts that the judge erred in failing to direct as to the use of what were described as uncharged acts.

    Background

  3. The appellant was a long-standing family friend of the complainant’s parents, principally through their close involvement with the Jehovah Witness faith.  The complainant, V, gave evidence that apart from seeing the appellant and his family at regular church activities, her family would visit his family home for lunch or dinner every fortnight or so.  Occasionally the appellant’s family visited her own family home.

  4. V said that from 1992, when she was about seven or eight years of age, until she was about 13 years, the appellant engaged in inappropriate conduct towards her.  She described the first time the appellant hugged her in the spare room of his home.  She was aged eight.  The…

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R v Landmeter [2015] SASCFC 3
Case
[2015] SASCFC 3
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for persistent sexual exploitation of a child. The appellant, Henricus Stephanus Landmeter, was found guilty by a jury of this offence, which involved alleged sexual conduct towards the complainant, RM, between 1992 and 1998, when RM was between the ages of seven and thirteen. The appeal was brought before Vanstone, Peek, and Bampton JJ of the Supreme Court of South Australia.

The appeal raised two grounds: first, whether evidence of an elaboration of an initial complaint was admissible under section 34M of the Evidence Act 1929 (SA); and second, whether the trial judge erred by failing to direct the jury regarding the use of uncharged acts, which were acts other than those specifically particularised in the information. The complainant’s evidence detailed a pattern of inappropriate hugging and kissing by the appellant over a period of approximately six years, primarily occurring at the appellant's home.

The Court of Appeal dismissed both grounds of appeal. Regarding the admissibility of the complaint evidence, the Court found that the initial conversation with the complainant's father was a proper complaint of sexual exploitation within the charged dates, capable of demonstrating consistency of conduct. The Court also held that a later conversation, despite occurring approximately six years after the initial complaint, could still be considered an elaboration of the initial complaint under section 34M(6) of the Evidence Act, as there was a sufficient connection between the two. The Court found no error in the judge's directions concerning uncharged acts, concluding that even if there had been an error in the admission of complaint evidence or the directions, no miscarriage of justice had occurred given the compelling nature of the complainant's evidence.

The appeal against conviction was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Two grounds of appeal are agitated. The first asserts that inadmissible evidence of complaint was received and the second asserts that the judge erred in failing to direct as to the use of what were described as uncharged acts.Background The appellant was a long-standing family friend of the complainant’s parents, principally through their close involvement with the Jehovah Witness faith. The complainant, V, gave evidence that apart from seeing the appellant and his family at regular church activities, her family would visit his family home for lunch or dinner every fortnight or so. Occasionally the appellant’s family visited her own family home. V said that from 1992, when she was about seven or eight years of age, until she was about 13 years, the appellant engaged in inappropriate conduct towards her. She described the first time the appellant hugged her in the spare room of his home. She was aged eight. The conduct comprised “just the hug”. She said the incident came to an end because her elder brother came down the hallway. She said that from that time and on over 100 occasions during the period to 1998 the appellant hugged her in a manner atypical of the way a family friend might hug a child. She said he would place one hand behind her neck and the other around her waist and then bring their whole bodies into contact for an extended period. V said “it had a sexual nature to it”. She said that on about half of these 100 occasions, depending on how long they would be alone and if there were time, “then he would be kissing me and he would insert his tongue into my mouth”. She gave evidence of one specific episode of such kissing, which she said occurred in the pantry of her home. However, the great majority of the conduct took place in the shed of the appellant’s home, where toys and sporting equipment used by the children were stored. V said that she came to expect that conduct of this sort would occur during every visit to the appellant’s home. She could not remember a time when it did not. When asked whether there were other incidents apart from the very first occasion at the appellant’s home, and the numerous instances of unwanted contact in the shed, V said that the only other one she recalled was in the bedroom occupied by the appellant and his wife. She said she was then aged ten years. She said she had gone into the room to get a doll and the appellant followed her in and that the same conduct occurred, “again with the hugging”. This conduct was said to have ceased when V was about 13 years of age at which time she stopped going with her parents to the appellant’s house. She first spoke with police on 19 August 2011. At the time she gave her evidence V was 29 years of age. By this time V had been “disfellowshipped” by the Jehovah’s Witness church and her relationship with her parents was strained. The only other prosecution witness was the complainant’s brother who confirmed that the family would often visit the appellant’s home. He also confirmed that a good deal of sporting equipment used by the appellant’s children and visiting children was located in a shed at the appellant’s home.

Evidence

Evidence Before The Court

Upon the appeal, counsel now acting for the appellant, Mr M Mead, accepted that the first conversation between V and her father was an initial complaint. In our view this was a proper concession. This was a complaint about sexual exploitation by the appellant and it was a complaint of conduct occurring within the charged dates. It was capable of demonstrating consistency of conduct. That the terms of the complaint did not – as far as the evidence went – include a description of an act falling within the acts specified in the information was not to the point. To hold otherwise would be to ignore the nature of the charge faced by the appellant. However Mr Mead argued that the evidence about the later conversation could not amount to an elaboration of the initial complaint as those terms are explained in s 34M(6) of the Evidence Act 1929 (SA). That was so, he submitted, because there needed to be some sufficient connection between the initial complaint and the suggested elaboration of it. He referred to Maiolo (No 3) [2014] SASCFC 89 at [81] to [83]. Mr Mead argued that because the evidence did not extend to a description of what V told her father on each occasion, it could not be established that there was any “elaboration”. In addition, although counsel accepted that an elaboration of a complaint would often take place at a time subsequent to the initial complaint, here the period between the two occasions – amounting to about six years – told against the later complaint being classed as an elaboration of the original. That is, they were not capable of being viewed as one complaint. It is convenient to set out s 34M of the Evidence Act.34M—Evidence relating to complaint in sexual cases(1)This section abolishes the common law relating to recent complaint in sexual cases.Note—See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.Examples—Evidence may be given by any person about—•when the complaint was made and to whom;•the content of the complaint;•how the complaint was solicited;•why the complaint was made to a particular person at a particular time;•why the alleged victim did not make the complaint at an earlier time.(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—(a)it is admitted—(i)to inform the jury as to how the allegation first came to light; and(ii)as evidence of the consistency of conduct of the alleged victim; and(b)it is not admitted as evidence of the truth of what was alleged; and(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).(6)In this section—complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).

Decision

Reasons for decision

PEEK J
This ground is not made good.Conclusion Neither of the grounds of appeal has been made good. In preparing these reasons we have necessarily read the entirety of the evidence in the trial. In our view the evidence given by V was, despite its lack of detail, powerful. By the time she gave evidence V was 29 years of age. Her evidence was not contradicted either by any evidence on oath, or by any circumstance. In our opinion V’s evidence was compelling. Even if there were any error in relation to the admission of the evidence of complaint or the directions, we would not have found that a miscarriage of justice actually resulted. We would dismiss the appeal. Appeal against conviction for sexual offending.PART ONE: INTRODUCTION The complainant, RM, was born on 4 December 1984. She was aged 29 at the time of the appellant’s trial in April 2014. RM’s family were practising Jehovah’s Witnesses and she was brought up in that faith. The appellant was much older than RM and was 76 at the time of trial. He was also a Jehovah’s Witness. He and his wife and children (the L family) and Mr M’s family (the M family) lived close together and both families were members of the same Jehovah’s Witness congregation. One of that faith’s tenets is that other members are to be trusted and that outsiders are not to be trusted; social activity was to be enjoyed with members and not with outsiders. The two families used to socialise together a good deal, such as at dinners, lunches and barbeques. This occurred mainly at the home of the L family. The prosecution case was that the appellant on many different occasions sexually offended against RM in the course of such social occasions, commencing in about 1992 when RM was about seven or eight years old and ceasing in 1998 when she was about 13 years old. The Information The appellant was convicted by majority verdict of the following charge:Statement of OffencePersistent Sexual Exploitation of a Child. (Section 50 (1) of the Criminal Law Consolidation Act, 1935).Particulars of OffenceHenricus Stephanus Landmeter between the 1st day of January 1992 and the 31st day of December 1998 at Para Hills West, committed more than one act of sexual exploitation of [RM], a person under the age of 17 years, over a period of not less than three days.It is alleged that the conduct comprising the ongoing acts of sexual exploitation was Henricus Stephanus Landmeter indecently assaulting [RM] by kissing her on the mouth and inserting his tongue into her mouth.The nature of a charge under s 50, Criminal Law Consolidation Act 1935 Section 50, Criminal Law Consolidation Act 1935 appears as follows:50—Persistent sexual exploitation of a child(1) An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence. Maximum penalty: Imprisonment for life. (2) For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.(3) If— (a)at any time when an act of sexual exploitation of a child was allegedly committed the child was at least 16 years of age; and (b)the defendant proves that he or she believed on reasonable grounds that the child was of or over the prescribed age at that time, the act of sexual exploitation is not to be regarded for the purposes of an offence against this section. (4) Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section: (a)subject to this subsection, the information must allege with sufficient particularity— (i)the period during which the acts of sexual exploitation allegedly occurred; and (ii) the alleged conduct comprising the acts of sexual exploitation; (b)the information must allege a course of conduct consisting of acts of sexual exploitation but need not— (i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or (ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred; (c)the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person— (i)in relation to the child who is allegedly the subject of the offence against this section; and (ii)during the period during which the person is alleged to have committed the offence against this section, must be charged in the alternative. …(7) In this section— …“sexual offence” means— (a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or (b)an attempt to commit, or assault with intent to commit, any of those offences; or (c) a substantially similar offence against a previous enactment. …

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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