R v P, PD - [2007] SASC 127

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v P, PD
[2007] SASC 127
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Layton)
12 April 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - PROOF AND EVIDENCE
Appeal against conviction - appellant convicted by jury of two counts of indecent assault and two counts of rape - appeal on grounds that jury verdicts were unsafe and unsatisfactory in relation to all counts, or alternatively, in relation to the two rape counts - complainant is the daughter of the appellant's former partner - complainant aged 20 at the time of the offences, but suffered from developmental delay and had the mental capacity of a 12 to 14 year old child - alleged inconsistencies in complainant's evidence, and inconsistencies between complainant's evidence and the evidence of other witnesses - alleged "unrealistic" evidence - consideration of lack of specific corroboration and no scientific evidence - consideration of alibi evidence - Held: Taking evidence as a whole verdicts not unsafe or unsatisfactory - alleged challenges were explicable - open to jury to find appellant guilty beyond reasonable doubt - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 48, s 56, s 353(1), referred to.
M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606; Jones v The Queen (1997) 191 CLR 439, applied.

R v P, PD
[2007] SASC 127
Court of Criminal Appeal: Doyle CJ, Debelle and Layton JJ

DOYLE CJ. I would dismiss the appeal against conviction for the reasons given by Layton J.
DEBELLE J. I agree with the substance of the reasons of Layton J and would dismiss the appeal.
LAYTON J.
Introduction
This is an appeal against conviction. On 5 October 2006, the appellant was convicted by a jury in the District Court of two counts of indecent assault and two counts of rape contrary to s 56 and s 48 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”).
Two grounds of appeal were argued:
1.The verdicts of the jury in relation to all counts were unsafe and unsatisfactory in that they were unreasonable and/or could not be supported having regard to the evidence as a whole.
2.In the alternative, that the guilty verdicts for the two counts of rape were unsafe and unsatisfactory as being unreasonable and/or could not be supported having regard to the evidence as a whole.
Summary of Crown Case
The Crown case was that on 24 June 2004 between about 4 pm and 4.20 pm, the appellant indecently assaulted and raped the complainant at Windsor Gardens. The complainant was the daughter of the former partner of…

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 P, PD

Details

AGLC: R v P, PD [2007] SASC 127
Case: [2007] SASC 127
Decision Date: 12 April 2007

CaseChat Overview and Summary

The appellant, R, appealed against his conviction by a jury on two counts of indecent assault and two counts of rape. The complainant was the 20-year-old daughter of the appellant's former partner, who suffered from a developmental delay and had the mental capacity of a 12 to 14-year-old child. The court had to determine if the jury's verdicts were unsafe and unsatisfactory in relation to all counts or, in the alternative, in relation to the two rape counts. The appeal was based on alleged inconsistencies in the complainant's evidence and inconsistencies between her evidence and other witnesses' evidence. The appeal also considered the lack of specific corroboration and no scientific evidence.

The court examined the evidence presented at the trial, including the complainant's evidence by way of video and the appellant's alibi. The court considered the complainant's intellectual disability, her difficulties in expressing herself, and remembering things, as well as her poor reading and verbal skills. The court found that the alleged challenges were explicable and that it was open to the jury to find the appellant guilty beyond reasonable doubt. The court concluded that the appeal should be dismissed.

The court's reasoning was that the jury could accept the complainant's evidence on essential matters and found her consistent and truthful about the sexual conduct of which she complained. The jury also accepted that the complainant's evidence supported the appellant's presence at her house when she was alone and that he had an opportunity to commit the offences, contrary to his denials. The court found that the matters relied upon by the appellant were capable of affecting the jury's verdicts, but they were matters for the jury to consider and did not cause reasonable doubt.

In conclusion, the court dismissed the appeal and upheld the jury's verdicts. The court found that the evidence presented at the trial was sufficient for the jury to find the appellant guilty beyond reasonable doubt. The court also found that the alleged challenges to the complainant's evidence were explicable and did not cause reasonable doubt.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant at trial gave evidence that he attended the house on the day in question, but said he did not go inside the house, or into the complainant’s room, and denied all conduct which constituted the charges. Further, the appellant said that he was elsewhere at the specific time of the offences alleged by the prosecution, which was his alibi. Overview of evidence at trial The complainant was aged 22 at the time of the trial and gave evidence by way of video. She suffers from an intellectual disability, which was known to the appellant. This intellectual disability resulted in her going to a special school. The appellant and KM lived together for about 18 months and between them they had one child and KM had three other children. After their estrangement, the appellant visited KM’s home to collect his son every second weekend and would also sometimes call in during the week to take access, usually but not always by a prior arrangement. The usual family routine during weekdays was that KM would collect her other three children from school and return home before the complainant was dropped off by the school bus. Occasionally the complainant would arrive home first so KM left the front door unlocked as the complainant had trouble handling keys to get into the house. Evidence of the complainant’s intellectual disability was given by her teacher. The complainant had difficulties in expressing herself and remembering things. Her reading ability was poor as were her verbal skills. In addition, she would often say ‘yes’ to a question which she may not have understood. A reading of the transcript of the trial reveals many examples of these difficulties and also suggests difficulty in her comprehension of some questions. The complainant gave evidence that she got home from school before her mother and her other siblings. She opened the door and went inside the house and into her bedroom and then went to the kitchen to get something to eat and drink. She returned to her bedroom to change out of her school clothes and into her sleepwear. The complainant said that the appellant came to her bedroom door and that she had not heard him before he opened the door. After some conversation she said that the appellant hugged and kissed her on the mouth. He gave her a neck massage, kissed her around the neck and grabbed her hair. She said that the appellant sucked her breasts, touched her legs and squeezed her bottom, and then took her knickers down and sucked her vagina. The complainant said that the appellant put his penis in her vagina, and that she tried to push him off, and get off the bed. She said she gave a little scream. The complainant testified that following this conduct, the appellant said to her, “[d]on’t tell mum or the family, don’t tell mum in case she goes nuts.” He also told her not to tell her sister or the family, and then left her bedroom. At that time she said she had not heard her mother or the other children come home. She said that she was crying badly and was shaking. The complainant said that after the appellant left, her mother had seen her crying and that the complainant had said “Mum, help me, please”.

Decision

Reasons for decision

DOYLE CJ (dissent) DEBELLE J (dissent) LAYTON J (dissent)

It was open for the jury to accept KM’s evidence. Regardless of the time that she arrived home, the appellant was already present in the house and alone with the complainant with the opportunity to commit the offences. It was therefore not necessary for them to have been satisfied beyond reasonable doubt as to the precise timing of the offence in order to find the appellant guilty.Conclusion Whilst I have separately considered each of the challenges made as to alleged inconsistencies, improbabilities, as well as the evidence of the appellant and the alibi, it is necessary to consider them together. None of the arguments in my view raised concerns about the convictions such that collectively they persuade me that it was not open to the jury, properly directed as they were by the trial Judge, to be satisfied of the appellant’s guilt beyond reasonable doubt. The matters relied upon by the appellant were capable of affecting the jury’s verdicts, but each of them can be explained on the bases I have identified. They were matters for the jury to consider, but it cannot be said that they were matters that should have caused the jury to have reasonable doubt. The jury appeared to accept that the complainant on essential matters was consistent and truthful about the sexual conduct of which she complained. The jury also appeared to accept that KM’s evidence supported the appellant’s presence at her house when the complainant was alone, and that he had an opportunity to commit the offences, contrary to his denials. I therefore consider that the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by:

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