R v Pollitt

Case [2007] SASC 103

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v POLLITT

[2007] SASC 103

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice White)

29 March 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT

Appellant found guilty by a jury of one count of attempted abduction with the intention to have sexual intercourse, and one count of indecent behaviour - consideration of the history and elements of the offence of attempted abduction - s 59 Criminal Law Consolidation Act 1935 - whether sufficient evidence upon which jury could be satisfied beyond reasonable doubt that the incidents had occurred and if so, that the appellant had attempted (a) to take the complainant by force (b) with the intention of having sexual intercourse with her - whether the trial judge adequately directed the jury in relation to the specific intent required - whether verdicts safe in light of the evidence of one witness.

Held:  (by majority) sufficient evidence upon which the jury could be satisfied beyond reasonable doubt that all elements of the offence proved - (by majority) the trial judge erred in failing to direct the jury adequately in relation to intention to have sexual intercourse - appeal allowed and (by majority) retrial ordered in relation to the offence of attempted abduction - (unanimously) appeal dismissed in relation to offence of indecent behaviour.

Criminal Law Consolidation Act 1935 (SA), s 4, s 48, s 59, s 270A; Summary Offences Act 1953 (SA), s 23; Evidence Act 1929 (SA), s 34; Sexual Offences Act 1956 (UK), s 17, referred to.
R v Morris (1987) 163 CLR 454; R v Manwaring [1983] 2 NSWLR 82; R v Storey (1978) 140 CLR 364; R v Wellard [1978] 3 All E R 161; R v Campbell and Brennan (1981) Qd R 516; Stephens v The King (1929) 32 WALR 9; TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen [2006] HCA 9; R v Birks (1990) 19 NSWLR 677; Griffiths v The Queen (1994) 69 ALJR 77; R v Billick (1984) 36 SASR 321, applied.
Maric v The Queen (1978) 52 ALJR 631; R v Rowley (1986) 23 A Crim R 371; R v Penney [1997] SASC 6071; R v Ayles (1993) 66 A Crim R 302; R v Rankine [1993] SASC 3990; R v Hussey (1980) 23 SASR 178; R v Webb (1996) 186 LSJS 184; Leuschel v Police (1999) 75 SASR 231; R v O'Neill (2002) 81 SASR 359; R v IAS (2004) 89 SASR 159; Papastamatis v Police (2003) 85 SASR 241; R v Winters [1998] SASC 6595; R v Gillard

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R v Pollitt [2007] SASC 103
Case
[2007] SASC 103
Decision Date

CaseChat Overview and Summary

The case of R v Pollitt involves an appeal by the appellant against his conviction and sentence for attempted abduction with the intention to have sexual intercourse and indecent behaviour. The appellant was found guilty by a jury of these offences, which were committed on 29 June 2005 at Greenock. The appeal was brought on several grounds, including the sufficiency of evidence, the adequacy of the trial judge's directions to the jury, and the safety of the verdicts. The central issue before the court was whether the trial judge had properly directed the jury on the specific intent required for the offence of attempted abduction and whether the verdicts were reasonable and safe given the evidence presented.

The court considered whether there was sufficient evidence for the jury to be satisfied beyond reasonable doubt that the appellant had attempted to abduct the complainant with the intention of having sexual intercourse with her. The court also examined the trial judge's directions to the jury concerning the specific intent required for the offence of attempted abduction. It was found that while there was sufficient evidence to support the jury's verdicts, the trial judge had erred in not adequately directing the jury on the necessary intent for the offence of attempted abduction. Consequently, the court concluded that the appeal should be allowed in respect of the charge of attempted abduction, and a retrial was ordered. However, the appeal against the conviction for the offence of indecent behaviour was dismissed as the court found the verdict to be safe and satisfactory.

In summary, the court allowed the appeal in relation to the charge of attempted abduction due to the trial judge's inadequate direction to the jury concerning the required intent, and ordered a retrial for this offence. The appeal against the conviction for the offence of indecent behaviour was dismissed, and the original verdict and conviction on this charge were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DUGGAN J
The defendant complained that both verdicts were unsafe and unsatisfactory. In this respect reliance was placed on the evidence of Mr Williams and the complainant’s evidence as to the time of the events. White J has dealt with this issue in detail in his reasons and I agree with those reasons and with the conclusion that this ground of appeal should be rejected.Conclusion I would set aside the verdict on count one and order a re-trial. I would dismiss the appeal against conviction on count two. WHITE J: The appellant was found guilty by a jury of two offences committed at Greenock on 29 June 2005. The first was an offence of attempted abduction, contrary to ss 59(a) and 270A of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”), and the second an offence of indecent behaviour contrary to s 23 of the Summary Offences Act 1953 (SA) (“SOA”). The appellant appeals to this Court on three grounds. The grounds of appeal, as amended after the presentation of the original argument, are that the trial judge erred in rejecting a submission of no case to answer; that the verdicts of the jury are unsafe; and that there was insufficient evidence upon which the jury could have been satisfied beyond reasonable doubt that the appellant intended to use force to abduct the complainant.The Prosecution Allegations In June 2005, the appellant (then aged 42) lived near Kapunda but worked for an employer who was based in Tanunda. Although there were various alternative routes by which he could travel from Kapunda to Tanunda, for the most part he travelled a route which took him through Greenock. The complainant was a 16 year old school girl who lived in Tanunda but attended Kapunda High School. It was customary for her boyfriend to drop her at a bus stop in the main street of Greenock at about 7.15 am. She would then wait for a bus, which arrived at about 8.00 am, to take her to Kapunda. The complainant’s evidence was that at about 7.30 am on Wednesday 29 June 2005, she was waiting at the bus stop in Greenock when the appellant stopped his sedan adjacent to the bus stop with the front passenger door nearest to her. The appellant leant across from the driver’s seat, wound down the front passenger window and asked if she would like a lift. She declined. The invitation was repeated more than once with the appellant saying words to the effect that he would take the complainant to where she was going and she, on each occasion, declining. The appellant then demanded forcibly that the complainant get into the car (“Get in the fucking car”). He then got out of the driver’s door, walked around the car and stood at a position near the rear passenger door. While he was doing this the complainant said that she removed some scissors from a pencil case in her school bag and put them in her pocket. Whilst standing near the rear passenger door, the appellant again told the complainant to get into his car. She declined. The complainant said that the appellant then undid the belt and zip of his trousers and exposed his penis and testicles for about 15 seconds. She then moved to her left but was still within the bus shelter. When she did this the appellant grabbed her bag by its handle and threw it against the back of his car. He took a step towards her and was then only a few metres from her. The complainant then produced the scissors and said words to the effect that the appellant should leave or she would stab him (“Fuck off or I will stab you”). Detecting some indecision, the complainant took a step towards the appellant, waving the scissors at him. The appellant, it was said, then “put his private parts away” and got back into the driver’s seat of his car and moved away, saying as he left “I will be back to get you, you little slut”. The complainant was able to see the registration number of his car.

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J

Mr Borick QC referred to some other matters which, it was said, reflected upon the reliability of the complainant. She had received a formal caution when 13 years old for ringing a school at which a former boyfriend was a student and making a hoax bomb threat. Since that time the complainant had also been formally cautioned for two offences involving dishonesty. Each of these matters was elicited in the cross-examination of the complainant and was the subject of submissions to the jury.Consideration of the Timing Issue The submission of Mr Borick QC seemed to assume that because the evidence of Mr Williams had been adduced by the prosecution, and had not been challenged, the jury was bound to regard it as reliable, or at the very least, to have regarded it as giving rise to a reasonable doubt about the complainant’s evidence. In the case of the complainant, the submission of Mr Borick QC was that her previous dishonest conduct should have been regarded as by itself creating a reasonable doubt about the reliability of her evidence about the subject incident. However, it was for the jury to determine the evidence which it regarded as reliable. It was the trier of fact. The jury had an absolute right to accept or reject the whole or part of any witness’ evidence. The question for this court on this aspect of the appeal is whether the jury, acting reasonably, should have entertained a sufficient doubt about the guilt of the appellant.[16] A verdict may be set aside on the ground that it is unsafe notwithstanding that there was, as a matter of law, evidence upon which the accused person could have been convicted[17] but this Court should not disturb the verdict simply because it disagrees with the jury’s conclusion. This Court must first be satisfied that a reasonable jury should have entertained a reasonable doubt. [16] R v Morris (1987) 163 CLR 454 at 461 per Mason CJ.[17] Ibid. Were the matters emphasised by Mr Borick QC concerning the timing issue the only matters creating a cause for concern, I would not conclude that the jury, acting reasonably, could not have been satisfied of the appellant’s guilt. The timelines involved are tight but the jury, acting reasonably, may not have accepted Mr Williams’ evidence in full, or may have thought that only a slight mistake by him about his speed, or as to the place at which he was overtaken by the appellant, would still have left the appellant with sufficient time to commit the offences and then to catch up with Mr Williams’ vehicle. Alternatively, the jury might have thought that the whole incident happened much more quickly than the account of the complainant suggests. Further again, the jury might have attached significance to the fact that Mr Williams said that after turning into the main street of Greenock, he did not see the appellant’s vehicle again until shortly before he was overtaken. If the appellant had been tailing him, it is to be expected that Mr Williams would have had at least some view of his vehicle in his rear vision mirror while travelling through Greenock. The jury might have concluded that the fact that the appellant was not seen was because he had stopped, as alleged by the complainant.