R v R, PA

Case [2019] SASCFC 19

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Youth Court Appeal)

R v R, PA

[2019] SASCFC 19

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)

27 February 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

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

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

The appellant appeals against his conviction by a judge sitting alone in the Youth Court on two counts of aggravated indecent assault contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA).

The conduct of which the appellant was convicted occurred over a period of two years between 10 September 1996 and 10 September 1998. The appellant was aged from 15 to 17 years during that period.  The two complainants are sisters of the appellant. They were both under the age of 10 years at the time of the relevant events.

The appellant advances the following five grounds of appeal:

1. The appellant’s trial miscarried as a result of the wrongful admission of evidence from the complainants and other witnesses which was contrary to s 34M of the Evidence Act 1929 (SA).

1A.  The learned trial Judge erred in finding that each of the complainants consistently maintained that they had never discussed the detail of the appellant’s actions, such finding adversely impacting upon an assessment of concoction or “infection”.

2. The appellant’s trial miscarried as a result of the failure of the learned trial Judge to adequately direct herself in accordance with s 34CB of the Evidence Act 1929 (SA).

3.  The appellant’s trial miscarried as a consequence of prejudicial and inadmissible evidence being before the court.

4.  The verdicts are unsafe, unreasonable and against the weight of the evidence.

Held, per Parker J (Kourakis CJ and Nicholson J agreeing), dismissing the appeal:

1.  The possibility of concoction and contamination had to be excluded by the Crown in order for it to rely upon reasoning based upon the similarity of the account given by the several witnesses (at [50]).

2. While most of the complaint evidence was inadmissible under s 34M, the evidence was admissible and relevant in support of the similarity of account contention advanced by the prosecution (at [50]).

3.  The Judge did not err by rejecting any suggestion of concoction or infection of the evidence of the complainants. That finding was entirely consistent with the complainants’ unequivocal evidence that they had not discussed the details of the appellant’s conduct (at [70]-[76]).

4.  Because the Judge was sitting alone she was not required to warn herself about the forensic disadvantage suffered by the appellant (at [85]).

5.  The warning given by the Judge adequately dealt with the matters referred to by Peek J in R v Maiolo (No 2) in respect of the…

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AGLC
R v R, PA [2019] SASCFC 19
Case
[2019] SASCFC 19
Decision Date

CaseChat Overview and Summary

The appeal concerned an appellant charged with indecent assault offences against his younger sisters. The appeal was brought before the Full Court of the Supreme Court of South Australia, with Kourakis CJ, Nicholson and Parker JJ presiding. The central dispute revolved around the admissibility and weight of evidence, particularly concerning allegations of collusion and contamination among the complainants.

The court was required to determine whether the trial judge erred in her findings regarding the complainants' discussions about the alleged offences. Specifically, the appeal raised the issue of whether the judge's conclusion that the complainants had consistently maintained they had never discussed the details of the appellant's actions was supported by the evidence. This was crucial to the appellant's argument that the evidence was a concoction or had been contaminated by discussions between the witnesses.

The court considered the evidence presented, including the complainants' testimonies and the discreditable conduct evidence. The trial judge had found it highly improbable that the complainants would have concocted similar stories and rejected suggestions of collusion or infection of the evidence. She specifically noted that each complainant consistently maintained they had not discussed the details of the appellant's actions. The Full Court granted permission to appeal on this ground, acknowledging that the appellant's submission that the complainants had discussed details, including touching of their vaginas, warranted further consideration. However, the court ultimately dismissed the appeal on all grounds, indicating that despite granting permission to appeal on ground 1A, the overall outcome of the trial was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The grant of permission to pursue this additional ground does not prejudice the respondent. The proposed ground was dealt with by the parties in the course of submissions and has been the subject of further written submissions by the respondent. The additional ground is also closely linked to ground 1. I would grant permission to appeal on ground 1A. Background The appellant was born in 1981 and at the time of trial was aged 36 years. He is one of nine siblings, comprising three boys and six girls. As the offences occurred when the appellant was a juvenile, his name cannot be published and the names of witnesses (who, leaving aside character witnesses, were all family members) cannot be published as that would tend to identify him and the victims.[1] Unfortunately, the initials used by the Judge and by the parties to the appeal were not always consistent. Accordingly, so as to reduce the possibility of confusion, I have referred to the witnesses as follows: [1] See Young Offenders Act 1993 (SA) s 63C; Evidence Act 1929 (SA) s 71A(4).·M - the appellant’s father. ·Ei - the appellant’s mother.·Ja - the appellant’s sister born 1979.[2]·A - the appellant’s brother born 1984.·Ra - the appellant’s sister born 1986.·S - the appellant’s sister born 1989.·K - the appellant’s sister born 1991.·E - the appellant’s sister born 1995.[3] ·J - the appellant’s sister born 1996.·AS - the appellant’s aunt (i.e. his mother’s sister).·R - the appellant’s wife.[4][2] Sometimes referred to by the Judge as JP and at other times as Ja.[3] Also referred to by the Judge on some occasions as L. [4] Sometimes the Judge referred to the appellant’s wife as Ra and at other times as R. The appellant’s sister R (born 1986) was sometimes also referred to as Ra. In context, it is clear to which person the Judge was referring. Another brother, Jo (born 1993), did not give evidence but was referred to by some other witnesses. The complainant in counts 1 and 2 was the appellant’s sister, S. During the relevant period she was aged from seven to nine years. The conduct alleged in count 1 is that while the family were travelling to church in their van the appellant indecently assaulted S by touching her vagina. As I have noted, the appellant was acquitted of count 2. That count alleged that S had accompanied the appellant from her bed to his bed where he indecently assaulted her by touching her vagina. The complainant in count 3 was the appellant’s sister, K. She was aged from five to seven years during the relevant period. The conduct covered by count 3 occurred while K was playing hide and seek with several of her siblings and hid in the appellant’s bed. He was in the bed and indecently assaulted K by touching her vagina. During the relevant period she was aged from five to seven years.Evidence in relation to count 1 Because ground 4 of the notice of appeal contends that no reasonable finder of fact could have found that the offence comprised in count 1 could have occurred as described by S, it is necessary to refer in some detail to her evidence.

Evidence

Evidence Before The Court

The complainant with respect to count 3 was the appellant’s sister, K. She was aged about six or seven years at the time of the relevant conduct. She was playing hide and seek with her sisters S and Ra (born 1986) and her brother A (born 1984). It was early in the morning and she ran into the bedroom where the appellant, his brother A and a third brother Jo slept. Jo did not give evidence. The appellant was in the bedroom and she told him that she needed somewhere to hide. At the suggestion of the appellant, she hid under the blanket. He pulled the blanket over her head and then pulled her nightie up and put his hand below her underwear and touched her vagina. K estimated that the touching of her vagina continued for “20 minutes or so”. He was rubbing her vagina by moving his fingers up and down and in a circular motion. The complainant’s brother A came into the room and was sitting on the bed next to the appellant while K remained under the blanket. When A realised that K was there, she got up and ran out of the room. Discreditable conduct evidence The prosecution gave notice of an intention to adduce discreditable conduct evidence for the purposes of s 34P(4) of the Evidence Act 1929 (SA). The notice contended that the discreditable conduct evidence was circumstantial evidence of a fact in issue showing the defendant to have a specific propensity to engage in opportunistic acts of sexual misconduct against his younger sisters. It was also contended that the discreditable conduct showed the defendant to have a sexual interest in his younger sisters and a tendency to act on that sexual interest. The evidence was sought to be led under s 34P(2)(b). The Judge proceeded on the basis that the discreditable conduct evidence must be proven beyond reasonable doubt.The chook shed incident The first allegation of discreditable conduct relied upon the evidence of the appellant’s sister E (born 1995).[5] The evidence of E was that when she was aged about five or six years the appellant asked her if she wanted to play a game. He took her to the back yard and sat her on his lap and bounced her up and down on his lap. Her legs were straddling his legs and her bottom was on his penis. He was fully clothed. E stated that the appellant had moved away from her towards the chook shed. While E was not sure that she had seen the appellant touch his penis, she did not recall him manipulating his penis. She had decided later when aged in her early teens that she had seen the appellant ejaculate. She made several different statements to the police and in evidence as to which way she was facing when bouncing on the appellant’s knee. The appellant denied this incident and said that from time to time he urinated in the back yard because of the heavy demand on the one toilet available to the children. [5] In some passages in the judgment, the Judge referred to E as L. The Judge expressed concern that there was an element of unconscious reconstruction in the evidence given by E. Her Honour was particularly concerned at the ability of a six or seven year old child to be able to determine the difference between a man urinating or ejaculating. The Judge concluded that she was unable to exclude as a reasonable possibility that E was mistaken as to what she had seen. Her Honour ruled that this evidence could not be used as discreditable conduct evidence.The lounge room incident

Decision

Reasons for decision

I would dismiss Ground 4.Conclusion I would grant permission to appeal on Ground 1A but would dismiss the appeal on all grounds.

Ratio Decidendi

Legal Principle Established

The respondent also takes issue with the contention by the appellant that the possibility of collusion and witness contamination were not live issues at the trial. The respondent has pointed to passages in the cross-examination of S, K, E and J where counsel for the appellant directly put to those witness the suggestion that their evidence was contaminated by discussions with their sisters and the product of collusion. The respondent has referred to the last question asked in cross‑examination of S, the first prosecution witness, and suggested that this question succinctly encapsulated the appellant’s case that there was collusion and the evidence was contaminated. The question was:Q.Well, you see, I told you at the start of this examination that my ultimate submission is that this simply didn't happen and I suggest that when the family fell out with [the appellant] you've all agitated, you've got your heads together, you decided he's the person that you can focus on that you can all hate, and then these offences have arisen. What do you say to that.A.That is incorrect.Consideration of ground 1 The only evidence treated as admissible by the Judge for the purposes of s 34M was the evidence of the initial complaint made by S to K and the initial complaint made by K to S. The appellant has not complained about those decisions. It is quite clear that the possibility of concoction and contamination were live issues at the trial. Thus, it was of central importance for the Judge to determine whether these considerations could be excluded as a reasonable possibility. The possibility of concoction and contamination had to be excluded by the Crown in order for it to rely upon reasoning based upon the similarity of the account given by the several witnesses.[7] While the complaint evidence, other than S’s initial complaint to K and K’s initial complaint to S, was inadmissible under s 34M, that evidence was admissible and relevant in support of the similarity of account contention advanced by the prosecution. In this light, I accept the contention of the respondent that the Judge did not improperly use any evidence as complaint evidence contrary to s 34M. [7] Hoch v The Queen (1988) 165 CLR 292. I would dismiss ground 1.Ground 1A – discussion between witnesses The proposed additional ground 1A contends that the Judge erred by finding that each of the complainants had consistently maintained that they had never discussed the detail of the appellant’s actions. The appellant submits that this finding was not open on the evidence. In oral submissions the appellant suggested that the complainants had discussed details to the extent that they referred to touching of their vaginas. The appellant contends that the erroneous finding by the Judge about the detail discussed by the complainants adversely affected her Honour’s assessment as to whether the evidence was a concoction or contaminated by the discussions between various witnesses. Ground 1A focuses upon the conclusions reached by the Judge at paragraphs [269], [270] and [271] of her reasons. The relevant passage is as follows:[269]The three complainants, S, K and J, have each given evidence of having been interfered with by the defendant. The circumstances of the alleged offending was similar. They were all of a young age and each of the incidents occurred in a family setting with other family members present. In my view, it is highly improbable that the complainants would have concocted similar stories unless the events had occurred. Furthermore, the discreditable conduct evidence given by M, A and [Ra] supports the fact of the defendant having a sexual interest in his siblings and being prepared to act on that interest.[270]I have also accepted the evidence of [A] and [J] and found that the defendant had apologised for his conduct towards S in the meeting attended by [AS], and in the conversation between J and the defendant, he promised her that his conduct had only involved S and K. [271]I reject any suggestion of concoction or infection of the evidence of the complainants. Each of the complainants consistently maintained they had never discussed the detail of the defendant’s actions. I also reject any suggestion the complainants have got together with other family members to plan the allegations. This is not borne out by the evidence. There was some evidence given of family meetings to discuss the matter. In my view, such meetings are quite understandable having regard to the events that had allegedly occurred and the distress caused to those involved. The allegations have had a significant impact on each of the siblings, the parents and the family unit. This was evident both from the evidence and the demeanour of the family members when giving evidence. However, I accept the evidence of all family members called by the prosecution that little or no detail has ever been discussed in these meetings.