R v Livingstone

Case [2011] SASCFC 28

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LIVINGSTONE

[2011] SASCFC 28

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice Kelly)

15 April 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - OTHER IRREGULARITIES

After trial by judge alone appellant convicted of persistent sexual exploitation of a child - offences alleged to have occurred in late 1970s - objective evidence called into question complainant's reliability as to timing of events - whether judge failed to scrutinise the complainant's evidence - whether judge failed to give adequate reasons for findings - whether verdict unsafe or unsatisfactory.

Held:  appeal allowed - conviction set aside - judgment and verdict of acquittal entered.

Criminal Law Consolidation Act 1935 (SA) s 50, s 56, referred to.
M v The Queen (1994) 181 CLR 487, applied.

R v LIVINGSTONE
[2011] SASCFC 28

Court of Criminal Appeal:  Vanstone, White and Kelly JJ

  1. VANSTONE J:     After a trial by a judge of the District Court, sitting without a jury, the appellant was found guilty of persistent sexual exploitation of a child.  The charge was based on events said to have occurred in the late 1970s.  Objective evidence elicited by the defence called into question the complainant’s reliability in relation to four aspects of his evidence.  The judge found that the complainant was reliable on the essential features of the charge, notwithstanding those four matters.

  2. The appellant now appeals against his conviction, with permission, arguing that the judge failed to direct himself adequately in respect of evaluation of the complainant’s evidence, that he failed to scrutinise that evidence having regard to four demonstrated flaws, that he failed to give adequate reasons for finding the complainant reliable in the face of those infirmities, and that the conviction is unsafe and unsatisfactory.

    Background

  3. The first date of the period spanned by the charge, 15 February 1976, was the day the complainant (V) was first placed in a boys’ home at North Adelaide named Kumanka House (Kumanka).  He was then aged 14 years and two months.  He was a ward of the state.  He had already lived at a number of other state institutions and foster homes.  On the basis of admissions made by the parties it appears that his residency at Kumanka was interrupted by his absconding on a number of occasions and being returned there.  The admissions record that on 24 August 1976 V absconded again and, although it is not absolutely clear from the admissions, it appears that he never returned.  He could not recall when it was that he was there.

  4. V said that on an occasion within the first few months of living at Kumanka he went with a few other boys to the Torrens weir at North Adelaide.  It was a hot day and they were swimming.  There he met a man he identified as the appellant, who rode up on…

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R v Livingstone [2011] SASCFC 28
Case
[2011] SASCFC 28
Decision Date

CaseChat Overview and Summary

The appellant, R, appealed against his conviction for persistent sexual exploitation of a child, with the alleged offences occurring in the late 1970s. The appeal was heard by Vanstone, White, and Kelly JJ of the court. The central dispute concerned the reliability of the complainant's evidence, particularly in relation to the timing of the alleged events, and whether the trial judge had adequately scrutinised this evidence and provided sufficient reasons for his findings.

The legal issues before the court were whether the trial judge failed to adequately direct himself regarding the evaluation of the complainant's evidence, whether he failed to scrutinise that evidence in light of demonstrated flaws, and whether he provided adequate reasons for finding the complainant reliable despite these infirmities. Consequently, the court had to determine if the verdict was unsafe or unsatisfactory.

The court allowed the appeal, finding that the conviction was unsafe and unsatisfactory. The reasoning focused on the judge's assessment of the complainant's evidence, particularly in relation to the timing of events. The court held that the complainant's evidence regarding the timing of the offences was not sufficiently scrutinised, especially in light of objective evidence that called his reliability into question. The court concluded that the judge had not given adequate reasons for his findings of reliability in the face of these issues. As a result, the conviction was set aside, and a judgment and verdict of acquittal were entered.

Orders

Orders of the court

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Background

Background to the litigation

The appellant now appeals against his conviction, with permission, arguing that the judge failed to direct himself adequately in respect of evaluation of the complainant’s evidence, that he failed to scrutinise that evidence having regard to four demonstrated flaws, that he failed to give adequate reasons for finding the complainant reliable in the face of those infirmities, and that the conviction is unsafe and unsatisfactory.Background The first date of the period spanned by the charge, 15 February 1976, was the day the complainant (V) was first placed in a boys’ home at North Adelaide named Kumanka House (Kumanka). He was then aged 14 years and two months. He was a ward of the state. He had already lived at a number of other state institutions and foster homes. On the basis of admissions made by the parties it appears that his residency at Kumanka was interrupted by his absconding on a number of occasions and being returned there. The admissions record that on 24 August 1976 V absconded again and, although it is not absolutely clear from the admissions, it appears that he never returned. He could not recall when it was that he was there. V said that on an occasion within the first few months of living at Kumanka he went with a few other boys to the Torrens weir at North Adelaide. It was a hot day and they were swimming. There he met a man he identified as the appellant, who rode up on a motorcycle and started speaking to him. V said that the motorcycle was a white BMW, “from memory [an] R65”. Subsequently, he rode on that motorcycle many times. On that day the appellant introduced himself as “Jamie”. He took him for a ride and took him to his house in the foothills. Once there, they did not go inside the house, because the appellant said he had a couple of international students there and he did not want them to see V. They went into the shed, where V said the man ultimately had sex with him, on a gymnasium bench, by placing his penis between V’s buttocks and thrusting until ejaculation. A little later the appellant returned V to Kumanka. Before leaving him, the appellant provided his telephone number to him, a six digit number, which the witness gave in evidence. He said he memorised it and often telephoned the appellant by use of it. V said that the next occasion of contact between himself and the appellant was perhaps about a week or two later. After suffering a violent incident at Kumanka, he absconded, going to the city. From there, he telephoned the appellant. The appellant came into the city, met V and again took him to his home in the foothills. This time they went into the house, the appellant telling V that the students had left. The appellant gave V a meal. Later they went to the appellant’s bedroom. They undressed, got into bed and similar conduct as before occurred. V said that he stayed for two or three nights at the appellant’s home. On the first morning, the appellant went to work, leaving V in the house. He particularly remembered that on that morning he saw on the appellant’s television for the first time the program “Good Morning Australia”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J
In any event, the point I wish to make is that, if the judge took the view that an ability to fully particularise an incident meant that such an incident could not form part of the conduct comprising the acts of sexual exploitation for the purpose of s 50, then I respectfully disagree with him. In my view there is no reason why a charge against s 50 cannot be made up of conduct which can be adequately particularised as well as conduct which cannot.Conclusion For the reasons earlier given I would make the following orders:1. allow the appeal;2.set aside the conviction and, in its place, enter a judgment and verdict of acquittal. I agree with the orders proposed by Vanstone J and with her reasons. KELLY J: I agree with the orders proposed by Vanstone J and with her reasons.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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