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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v O, B

Details

AGLC: R v O, B [2015] SASCFC 157
Case: [2015] SASCFC 157
Decision Date: 4 November 2015

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, R, for the offence of maintaining an unlawful relationship with a child. The prosecution alleged that the appellant had engaged in a sexual relationship with a child under the age of 16. The appellant appealed his conviction to the Full Court of the Supreme Court of South Australia.

The primary legal issues before the Full Court were whether the verdict of the jury was unreasonable or insupportable having regard to the evidence, and whether the admission of fresh evidence on appeal would warrant a new trial. The appellant also sought to argue that the evidence presented at trial was insufficient to establish the elements of the offence beyond a reasonable doubt.

The Full Court considered the evidence presented at trial, including the testimony of the complainant and other witnesses, as well as documentary evidence. The Court applied the principles governing appeals against jury verdicts, which require the appellate court to determine if no reasonable jury, acting on the evidence, could have reached the verdict. The Court also considered the criteria for admitting fresh evidence on appeal, which typically involves demonstrating that the evidence is credible, relevant, and could not have been obtained with reasonable diligence at the time of trial. After a thorough review of the evidence and submissions, the Court found no basis to conclude that the jury's verdict was unreasonable or insupportable.

The appeal was dismissed.

Orders