R v LISTER

Case [2013] SASCFC 17

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LISTER

[2013] SASCFC 17

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice David and The Honourable Justice Stanley)

28 March 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

Appeal against conviction - appellant was charged with two counts of aggravated indecent assault (counts 1 and 3) and one count of unlawful sexual intercourse (count 2) - the prosecution case against the appellant was heavily reliant upon the evidence of the complainant who was 10 years of age at the time of the alleged offending and 14 years of age at the time of trial - by verdict of a jury the appellant was found guilty on count 1 and not guilty on counts 2 and 3.

Appeal against the conviction on count 1 on three grounds: (1) the verdict was unsafe and unsatisfactory and against the weight of the evidence, (2) the verdict was inconsistent with the verdicts on counts 2 and 3, and (3) the trial judge erred in failing to direct the jury specifically on the inconsistency between the complainant's in-court evidence and her two prior denials of any offending by the appellant - permission to appeal  granted in relation to grounds (1) and (2) and ground (3) referred to this Court for consideration.

Held (Per the Court): Appeal dismissed.

Ground (1) dismissed: following a critical assessment of the complainant and her evidence it cannot be concluded that a reasonable jury must have had a reasonable doubt about the appellant's guilt on count 1; there was much evidence in support of the complainant's testimonial evidence.

Ground (2) dismissed: the verdict on count 1 and verdicts on counts 2 and 3 are reconcilable - the verdicts on counts 2 and 3 do not necessarily indicate a rejection of the complainant's evidence but only a lack of preparedness to find the charge proved beyond reasonable doubt on the complainant's evidence alone on account of inconsistencies - any doubts that led to the jury's acquittal on counts 2 and 3 would not necessarily have destroyed the complainant's credibility to an extent that they would have had reasonable doubt about the whole of her evidence.

Permission to appeal on ground (3) refused: the trial judge was not required to direct the jury specifically as to the complainant's prior denials of any offending by the appellant - appellant's counsel had made strong submissions on the topic and the trial judge provided the jury with a general direction on prior inconsistent statements, nothing further could have been added by way of direction.

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R v Lister [2013] SASCFC 17
Case
[2013] SASCFC 17
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for aggravated indecent assault (count 1), following a jury verdict of not guilty on charges of unlawful sexual intercourse (count 2) and aggravated indecent assault (count 3). The prosecution's case rested heavily on the evidence of the complainant, who was 10 years old at the time of the alleged offences and 14 at the time of trial. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, David and Stanley JJ.

The appellant sought to overturn his conviction on count 1, advancing three grounds of appeal. These included the assertion that the verdict was unsafe and unsatisfactory, and against the weight of the evidence. Secondly, the appellant argued that the guilty verdict on count 1 was inconsistent with the not guilty verdicts on counts 2 and 3, rendering the conviction unsafe. Finally, the appellant contended that the trial judge erred by failing to specifically direct the jury on the inconsistency between the complainant's in-court testimony and her prior denials of any offending by the appellant.

The Court dismissed the first ground, finding that a critical assessment of the complainant's evidence did not lead to the conclusion that a reasonable jury must have harboured a reasonable doubt about the appellant's guilt on count 1, given the supporting evidence. Regarding the second ground, the Court held that the verdicts were reconcilable. The acquittals on counts 2 and 3 did not necessarily signify a rejection of the complainant's evidence but rather a lack of preparedness to find those charges proven beyond reasonable doubt based solely on her evidence, due to inconsistencies. Any doubts that led to acquittal on those counts would not necessarily have destroyed the complainant's credibility to the extent of creating reasonable doubt about her entire testimony. Permission to appeal on the third ground was refused, as the Court determined the trial judge was not required to give a specific direction on the complainant's prior denials, particularly as the appellant's counsel had made strong submissions on the matter and the jury had received a general direction on prior inconsistent statements.

The appeal was dismissed.

Orders

Orders of the court

Held (Per the Court): Appeal dismissed.

Ground (1) dismissed: following a critical assessment of the complainant and her evidence it cannot be concluded that a reasonable jury must have had a reasonable doubt about the appellant's guilt on count 1; there was much evidence in support of the complainant's testimonial evidence.

Ground (2) dismissed: the verdict on count 1 and verdicts on counts 2 and 3 are reconcilable - the verdicts on counts 2 and 3 do not necessarily indicate a rejection of the complainant's evidence but only a lack of preparedness to find the charge proved beyond reasonable doubt on the complainant's evidence alone on account of inconsistencies - any doubts that led to the jury's acquittal on counts 2 and 3 would not necessarily have destroyed the complainant's credibility to an extent that they would have had reasonable doubt about the whole of her evidence.

Permission to appeal on ground (3) refused: the trial judge was not required to direct the jury specifically as to the complainant's prior denials of any offending by the appellant - appellant's counsel had made strong submissions on the topic and the trial judge provided the jury with a general direction on prior inconsistent statements, nothing further could have been added by way of direction.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I will deal with each ground in turn.Ground 1 – The verdict was unsafe and unsatisfactory and against the weight of the evidence Principles involving whether an appellate court should set aside a jury’s verdict as being unsafe and unsatisfactory and against the weight of the evidence are now well established. In M v The Queen,[2] the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ said:[3]Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.(Footnotes omitted)Also, McHugh J said:[4]In my opinion, the correct test for determining whether a verdict should be set aside on the ground that it is unreasonable is whether a reasonable jury must have had a reasonable doubt about the accused’s guilt. To ask whether it was open to the jury to be satisfied of the accused’s guilt beyond reasonable doubt is to come perilously close to applying the test for determining whether there was a sufficiency of evidence to convict the accused. To go beyond asking whether a reasonable jury must have had a reasonable doubt about the accused’s guilt would be an unwarranted intrusion into the jury’s right to determine the facts in a criminal trial. The court must make an independent assessment of the evidence and consider the sufficiency, quality and nature of the evidence. However, before coming to the conclusion that a reasonable jury must have had a reasonable doubt about the accused’s guilt, the court must give due weight to the advantages that the jury had in regard to the evidence and the atmosphere of the trial. If, after considering the evidence, the court concludes that a reasonable jury must have acquitted, the verdict is unreasonable even though there may be sufficient evidence, in law, to support the verdict.(Footnotes omitted)[2] (1994) 181 CLR 487.[3] (1994) 181 CLR 487 at 493.[4] (1994) 181 CLR 487 at 493 at 525. Mr Heffernan, counsel for the appellant, argues before this Court that the verdict was unsafe and unsatisfactory because of the following matters:1.The prosecution relied almost entirely upon the evidence of a 10 year old girl who told of events that allegedly happened almost four years earlier.2.Much of her evidence on significant topics was inconsistent with other evidence called by the prosecution.3.On a number of topics her evidence was inconsistent with the previous statements that she had made.4.Although it is a separate ground of appeal, the appellant also relies upon the fact that the jury found the appellant not guilty of counts 2 and 3, and therefore had reservations about her credibility at least on those two counts.

Decision

Reasons for decision

I would also refuse permission to appeal on ground 3. It was not necessary for the Judge to give the jury any direction, or reminder, about the evidence that V had denied any offending when her mother had questioned her about the day’s events. The appellant’s counsel had made strong submissions on that topic. The jury were in a position to evaluate the weight of that evidence and its significance on the basis of their common experience of life and human behaviour. Judges do not have any special knowledge or understanding of such matters to impart to juries by way of direction or warning.Conclusion I would dismiss the appeal. DAVID J: The appellant was charged with three offences against the same female complainant (“V”) who, at the time, was 10 years of age. The charges were; one count of aggravated indecent assault (count 1), one count of unlawful sexual intercourse (digital) (count 2), and one count of aggravated indecent assault (count 3). The three charges concerned events which allegedly took place on an identified afternoon in late 2008 or early 2009 when the appellant had visited the family home of V and she accompanied him on a journey in his car to visit some horses. Following a trial, the appellant was found guilty by a jury of count 1 but not guilty of counts 2 and 3. The appellant now appeals against the conviction on count 1. The appellant was granted permission to appeal, and now appeals, against the conviction on count 1 on two grounds. Firstly, that the verdict is unsafe and unsatisfactory and against the weight of the evidence. Secondly, that the verdicts of not guilty on counts 2 and 3, in relation to events that took place close in time to the events of count 1, were so inconsistent with the guilty verdict on count 1as to render the verdict on count 1 unsafe and unsatisfactory. The appellant relies on a further ground of appeal, for which permission was not granted but rather referred to this Court for consideration. This third ground is that the trial judge should have directed the jury on a specific inconsistency in V’s evidence, namely V’s denials of any impropriety on the appellant’s behalf, which she made to her mother on two previous occasions.Trial At the time of the events which were the subject of the charge, V was a young female aged 10 years. She lived at Hillbank with her mother (“M”), her sister (“A”) and her brother. Both M and A were called as witnesses. At the relevant time, the family owned a number of horses which were agisted at Maluna Stables, some distance from the family home. On the relevant day a family friend (“R”), who was called as a witness at trial, came to the family home at Hillbank and took A to the Maluna Stables to attend to the horses. The appellant was also present at that time. He was described by V as a family friend who used to visit their home often. V gave evidence that the appellant also wanted to go to the stables. As he did not know where to go, M suggested that V go with him to direct him. They left in the appellant’s car, both sitting in the front. It took about half an hour to get to the stables and on the way the appellant kept touching her outside of her clothes in the area of her vagina. V said this happened after they had been travelling for about three or four minutes and continued for the whole of the journey. She was wearing a tank top and basketball shorts and the appellant said words to the effect, “Most girls don’t like it at first but once they get the feel of it they start to like it”. V said that she asked him to stop but he did not.

Ratio Decidendi

Legal Principle Established

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