R v O, B - [2015] SASCFC 157

Supreme Court of South Australia
(Court of Criminal Appeal)
R v O, B
[2015] SASCFC 157
Judgment of The Court of Criminal Appeal
(The Honourable Acting Chief Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)
4 November 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
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 - FRESH EVIDENCE
This is an application for permission to appeal against conviction. The applicant was convicted in the District Court following a trial by judge alone of three counts of persistent sexual exploitation of a child, each count involving a different victim. On 1 December 2014, a single Judge of the Supreme Court refused permission to appeal on the basis that there was no arguable case to support a grant of permission. The applicant was represented by counsel at trial but has been unrepresented in this application.
Whether the verdict is unsafe and unsatisfactory. Whether the trial Judge gave too little weight to the applicant’s evidence and too much weight to the evidence of the three complainants. Whether the Court should receive fresh medical evidence asserted to provide support for the applicant’s claim that he had suffered erectile dysfunction at the time of the offending.
Held per Gray J (Peek and Nicholson JJ agreeing) (refusing permission to appeal):
1.       It was open for the Judge to reject the applicant’s evidence entirely where it conflicted with the evidence of the three complainants.
2.       None of the further material provides any probative evidence in support of the applicant’s assertions and should not be received as fresh evidence.
3.       The applicant has no arguable case.
Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.

R v O, B
[2015] SASCFC 157
Court of Criminal Appeal: Gray ACJ, Peek and Nicholson JJ
GRAY ACJ.

This is an application for permission to appeal against conviction.
The defendant and applicant, BO, was convicted in the District Court,[1] following a trial by judge alone, of three counts of persistent sexual exploitation of a child.[2] Each count involved a different victim. The Judge returned verdicts of not guilty in respect of eight other counts alleging sexual offending.
[1] R v O, B [2014] SADC 12.
[2] Criminal Law Consolidation Act 1935 (SA) section 50(1).
On 1 December 2014, Kourakis CJ refused permission to appeal on the basis that there was no arguable case to support a grant of permission. The defendant now pursues a grant of permission from this Court. The defendant was represented by counsel at trial but unrepresented before Kourakis CJ and before this Court.
The matter has been adjourned from time to time to provide the defendant with an opportunity to prepare submissions and obtain materials with respect to his application. The defendant asserted, before both Kourakis CJ and this Court, that he had lost material relating to the matter. However, like Kourakis CJ, I am satisfied that the material could not have provided any assistance to him in prosecuting the application for permission.
The defendant asserts that the verdicts of guilty are unsafe and unsatisfactory and against the weight of the evidence. In his notice of appeal, he asserts that too little weight was placed on his evidence and too much weight placed on the evidence of the three complainants the subject of the counts of persistent sexual exploitation of a child of which he was convicted.
During the hearing before Kourakis CJ, the defendant sought to advance a further ground of appeal relating to fresh medical evidence which, it was asserted, provided support for the defendant’s claim that he had suffered erectile dysfunction since 1976. The defendant filed an affidavit attaching five letters and two reports from medical practitioners dated between 2006 and 2014.
The trial Judge delivered detailed reasons for his conclusions and for the verdicts of guilty. The Judge explained in those reasons why he accepted the evidence of the three complainants the subject of the counts on which the verdicts of guilty were returned. The Judge described each of the complainants as an excellent witness. Each gave unequivocal and convincing accounts of the relevant events. There was nothing raised in cross-examination that would lead to a doubt about their accounts. Each complainant gave evidence of abuse over an extended period and the Judge found more than the minimum number of acts of sexual abuse required, in respect of each charge of persistent sexual exploitation of a child, proved beyond reasonable doubt. It was open to the Judge to accept the evidence of these complainants.
It is relevant to observe that although the trial Judge was entitled to use similar fact reasoning to find further support for the accounts of these complainants, he decided not to do so, because he reached his conclusion of proof beyond reasonable doubt based on an acceptance of each complainant’s evidence.
The Judge’s reasons disclose that he properly considered the evidence given by the defendant and did so in some detail. The Judge gave the defendant credit for giving evidence. In the Judge’s lengthy consideration of the defendant’s evidence, he made findings that the defendant was an unimpressive, poor and evasive witness. He made further findings that he lacked credibility and had lied. These findings were supported by the evidence. The Judge rejected the defendant’s evidence entirely where it conflicted with the evidence of the three complainants. It was open for the Judge to do so and he was correct to do so.
There is nothing in the material to support the defendant’s submission that the Judge placed too little weight on the defendant’s evidence and too much weight on the evidence of the three complainants.
At trial, the defendant asserted that, following an accident on a speedway track in 1976, he could no longer maintain an erection. On his case, he was incapable of committing most of the alleged sexual abuse. There was evidence before the trial Judge that directly contradicted these assertions. The Judge heard evidence from the defendant’s former spouse that they continued to have a sexual relationship, and that the defendant could obtain an erection, after the incident in 1976. The Judge accepted this evidence and it was open to him to do so. In the course of the trial, evidence was led from a police medical officer limited to the officer’s visual examination of the defendant’s penis, including whether or not the defendant was circumcised. Defence counsel attempted to elicit in cross-examination evidence supportive of the defendant having medical problems, including erectile dysfunction. The evidence so introduced was not capable of establishing that the defendant suffered from erectile dysfunction at any relevant time.
A review of the material annexed to the affidavit referred to above, discloses that no independent information is provided to confirm that the defendant presently has, or at some time between 1976 and the present has had, erectile dysfunction. The reports do refer to self-serving statements provided by the defendant of erectile dysfunction but there is no expression of any opinion to indicate a diagnosis of erectile dysfunction at the time of the offending. On the topic of erectile dysfunction none of the reports are probative. They do not provide relevant evidence. They would not have been admitted at trial and should not be received as fresh evidence on the appeal.
During the course of the hearing, the defendant referred to further documents said to be relevant to his application, including his claimed erectile dysfunction.[3] The Director contended that the material did not provide any relevant information and, in any event, should not be received as fresh evidence on the appeal. In my view, none of the further material provides any probative evidence in support of the defendant’s assertions. In particular, there is no expression of any opinion from any qualified expert to support a diagnosis of erectile dysfunction at the time of the offending. The material should not be received as fresh evidence on the appeal.
[3] Counsel for the Director assisted the defendant to index and copy the further documents. The book of documents has been placed on the Court file.
In my view, the defendant has no arguable case. No error of law has been identified. No error of fact has been identified. There is nothing to suggest that there is a risk of there having been a miscarriage of justice. I would refuse permission to appeal.
PEEK J. I would refuse permission to appeal. I agree with the reasons of Gray ACJ.
NICHOLSON J. I would refuse permission to appeal. I agree with the reasons of Gray ACJ.