R v NEOCLEOUS

Case [2017] SASCFC 162

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v NEOCLEOUS

[2017] SASCFC 162

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Doyle)

5 December 2017

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

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

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

The appellant was charged with five counts of aggravated indecent assault of the same complainant, who was 9 or 10 years of age at the relevant time. Following a trial by jury the appellant was found guilty of counts 1, 4 and 5; however, the jury was unable to reach a verdict on counts 2 and 3.

The appellant appeals against his convictions on counts 1,4 and 5 on the grounds that they were unreasonable or unable to be supported by the evidence given inconsistences in the complainant’s evidence, and that convictions on those three counts were inconsistent with the jury’s inability to reach a verdict on counts 2 and 3.

Held per Doyle J (Kourakis CJ and Peek J agreeing), dismissing the appeal:

1.      The matters raised in relation to the evidence of the complainant were not sufficient either individually or in combination to render the verdicts on counts 1, 4 or 5 unreasonable or unable to be supported having regard to the evidence (at [140]).

2.      The verdicts of guilty in respect of counts 1, 4 and 5 were not inconsistent with the jury’s inability to reach a verdict in relation to counts 2 and 3 (at [235]).

Held per Doyle J (Peek J agreeing):

1. Consideration of the operation of the principles of inconsistencies in cases involving a jury that has been unable to reach a verdict ([152]-[230]).

2.      It is appropriate to have regard to the principles of inconsistency in cases involving not only differing verdicts in the strict sense, but also differing outcomes more generally – and hence including cases where the jury has been unable to reach agreement on one or more counts (at [230]).

Criminal Law Consolidation Act 1935 (SA) 56, s 353; Criminal Code 1899 (Qld) s 668E; Criminal Appeal Act 1912 (NSW) s 6, referred to.
Osland v The Queen (1998) 197 CLR 316, applied.
R v Markuleski (2001) 52 NSWLR 82; M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; The Queen v Nguyen (2010) 242 CLR 491; MFA v The Queen (2002) 213 CLR 606; R v Eccles-Smith [2016] SASCFC 84; R v Georgeson [2017] SASCFC 93; TK v R (2009) 74 NSWLR 299; Darby v R [2016] NSWCCA 164; MacKenzie v The Queen [1996] HCA 35; R v James [1999] NSWCCA 191; R v AG [2000]…

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AGLC
R v Neocleous [2017] SASCFC 162
Case
[2017] SASCFC 162
Decision Date

CaseChat Overview and Summary

The appellant, R v Neocleous, appealed his convictions for aggravated indecent assault on counts 1, 4, and 5. The complainant, a child aged 9 or 10 at the time of the alleged offences, had accused the appellant of indecently assaulting her on five separate occasions between September 2014 and March 2015. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The central legal issues before the court were whether the convictions on counts 1, 4, and 5 were unreasonable or unable to be supported by the evidence, given inconsistencies and variations in the complainant's testimony, and whether these convictions were rendered unreasonable by the jury's inability to reach a verdict on counts 2 and 3.

The court considered the complainant's evidence, which was largely consistent with her initial police interview but contained some elaborations and variations. The court noted that inconsistencies in a complainant's evidence do not automatically render a verdict unreasonable, particularly in cases involving child complainants where memory and recall can be affected by age and trauma. The court also addressed the issue of inconsistent verdicts, stating that such verdicts are not automatically grounds for appeal. A jury is entitled to accept parts of the evidence and reject other parts, and the fact that a jury could not agree on some counts does not necessarily invalidate their findings on other counts, provided there is sufficient evidence to support those findings. The court found that the jury was entitled to accept the complainant's evidence regarding counts 1, 4, and 5, despite the difficulties presented by her testimony and the lack of a verdict on counts 2 and 3.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals his convictions on counts 1, 4 and 5 on the bases that those convictions were:· unreasonable or unable to be supported having regard to the evidence given various inconsistencies and variations in, and other difficulties with, the evidence of the complainant; and· unreasonable on account of the convictions on counts 1, 4 and 5 being inconsistent with the jury’s inability to reach a verdict on counts 2 and 3.Background The particulars of the five charged counts of aggravated indecent assault were to the following effect:· that between 19 September 2014 and 9 December 2014 the appellant indecently assaulted the complainant by touching her on the buttocks (count 1);· that between 1 December 2014 and 11 December 2014 the appellant indecently assaulted the complainant by touching her on the buttocks (count 2);· that between 4 December 2014 and 27 January 2015 the appellant indecently assaulted the complainant by touching her on the labia majora (count 3);· that between 11 December 2014 and 28 March 2015 the appellant indecently assaulted the complainant by touching her on the labia majora (count 4); and· that on 28 March 2015 the appellant indecently assaulted the complainant by touching her on the labia majora (count 5). The complainant was born on 16 February 2005 and so was 9 or 10 years of age at the time of the charged conduct. She lived with her mother and two younger sisters in her grandfather’s house, which was next door to where the appellant lived. It was an agreed fact that the appellant commenced his rental of the neighbouring property on 20 September 2014. The appellant was born on 5 November 1965 and so was 49 or 50 years of age at the relevant time. He lived with three of his children (being his sons G (aged 12) and A (aged 16), and his daughter S (aged 22)). He had an older daughter who no longer lived at the family home. He had been separated from his wife since 2010, but retained custody of the children during the week, with his wife having access over the weekend. The offending was all alleged to have occurred when the complainant was visiting the appellant’s house, which she regularly did in order to spend time playing with the appellant’s son, G, and another boy, M, from a few houses further down the street. On 3 April 2015, the complainant was interviewed by police. The interview was video recorded. During the course of this interview the complainant made allegations that gave rise to the charges laid against the appellant. The charges against the appellant first proceeded to trial on 6 September 2016 (the first trial).[3] The prosecution tendered the video recording of the complainant’s police interview, and it effectively stood as the complainant’s evidence in chief. The complainant was cross-examined by counsel for the appellant. The cross-examination was not completed because the trial miscarried.[3] At the time of the first and second trials, count 4 was charged as unlawful sexual intercourse; however, count 4 was subsequently amended to aggravated indecent assault.

Evidence

Evidence Before The Court

At some point after taking his hand out of her pants, the appellant had said “shoosh” and had whispered to her not to tell anyone.Complainant’s evidence at the second trial The complainant was cross-examined at the second trial by counsel for the appellant. She was taken through each of the five incidents she had described in her interview, which were the foundation for counts 1 to 5. She was shown the video recording of her police interview the day before she gave evidence. While her account under cross-examination was broadly consistent with what she had said in her interview, both in terms of the conduct she described and the detail in which she described it, she did elaborate upon some of the incidents. She also gave some answers that were inconsistent with, or at least varied from, what she had said in the interview. She also identified some additional incidents. What follows is a summary of these aspects of her evidence during cross-examination at the second trial.Count 1 In cross-examination, the complainant described the first incident as having occurred “I think two weeks after he moved in”. She said the slap occurred as she was in the kitchen, bending over to get a cup from a cupboard near the fridge. The appellant slapped her with his left hand. Count 2 The complainant said the second incident occurred “I think two months” after the first incident. While maintaining that she was grabbed on the bottom in the kitchen, she was not able to recall what she was doing in the kitchen when this occurred.Count 3 The complainant said that she saw the appellant give two other children (N and S) a whizzy before he gave her one. She gave the names of three or four other children who were also present in the backyard when the whizzies occurred, being her younger twin sisters (A and H), and M and his younger brother, B. The complainant gave a slightly more detailed explanation of the mechanics of the whizzy incident. She said that the appellant picked her up and held her on his outstretched arms. She was positioned face down across his forearms, with one of his arms across her chest area, and the other across her belly button area. His arms were under her, and wrapped around her, with his hands upwards and touching or holding the side of her body. He started spinning her fast, but then slowed down and put one of his hands in her pants. He did so with the hand that was across the lower part of her body. Her pants were three quarter length shorts, which she thought had an elastic waist. The incident lasted about 10 seconds. It finished when he almost dropped her. He lost balance and put her down, resulting in her falling back, landing on a prickle and hurting her arm.Count 4 The complainant was not sure how long after the third incident this one occurred, but thought it was in the Christmas school holidays. Again, she described the mechanics of this incident in slightly greater detail than she had done in the police interview. She said that she went into the lounge room and asked the appellant (who was sitting on the couch) for a juice box. He was about a metre away and leaned forward to pick her up and put her on the couch. He laid her on the couch, on her back, and started tickling her on the stomach. The appellant remained seated and was beside her. She said “stop” and thought she did so loud enough for G, who was in the room and watching the television, to hear. G turned around and said “dad, stop”. She thought he said this twice, but then kept watching the television. At that point the appellant put his hand in her pants. She thought her pants had an elastic waist, and that the appellant put his hand down the top of her pants, but at the side near her hip, ending up with his hand near her private part or fanny. At some point G started trying to pull the appellant off her. As he did so, the appellant took his hand out of her pants. It had been in her pants for “sort of, five seconds”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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