R v Rendell

Case [2018] SASCFC 71

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v RENDELL

[2018] SASCFC 71

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)

28 June 2018

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

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

Appeal against conviction following a trial by judge alone in the District Court of three counts of aggravated indecent assault on ES. The offences, which comprised of indecent touching and kissing, occurred in a park on the shores of the lake at West Lakes. Almost immediately after the commission of the last of the offences, the appellant was confronted by several persons who had watched him with ES in the park and who testified that he told them that ES was 18. Police then arrived and, in answer to a very leading question, ES agreed that the appellant had touched and kissed her.

Held, per Kourakis CJ (Stanley and Bampton JJ agreeing), dismissing the appeal:

1.  The evidence of the lie was admissible. The Judge’s failure to give reasons has not been productive of any miscarriage of Justice because the probative weight of the telling for the lie was a matter before the Judge (at [48]).

2.  The Judge’s direction correctly stated that proper use to which evidence of the complaint could be made. The Judge was not required to elaborate any further on what was a relatively small part of the prosecution case (at [57]).

3.  The Judge correctly referred to the onus of proof and approached the final determination of her verdict consistently with relevant authorities and only after taking into account the evidence as a whole (at [82]).

4.  There is no aspect of the evidence which causes the Court to doubt the appellant’s guilt on each count (at [94]).

Criminal Law Consolidation Act 1935 (SA) s 56; Evidence Act 1929 (SA) s 34M, referred to.
R v Rendell [2017] SADC 86; Harris v The Queen (1990) 55 SASR 321; Peluso v Police [2018] SASC 63, applied.
R v T, S (2017) 128 SASR 66; Douglass v The Queen (2012) 86 ALJR 1086; R v Schulz (2016) 126 SASR 746; R V Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; DL v The Queen [2018] HCA 26, discussed.
R v Sekrst [2016] SASCFC 127; Edwards v The Queen (1993) 178 CLR 193; R v Freeman [1980] VR 1; R v Quist (2017) 127 SASR 471; Zoneff v The Queen (2000) 200 CLR 234, considered.

R v RENDELL
[2018] SASCFC 71

Court of Criminal Appeal:   Kourakis CJ, Stanley and Bampton JJ

  1. KOURAKIS CJ:        The appellant, Mr Kenneth Rendell, was convicted following…

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R v Rendell [2018] SASCFC 71
Case
[2018] SASCFC 71
Decision Date

CaseChat Overview and Summary

The appellant, Mr Rendell, appealed his conviction for three counts of aggravated indecent assault. The dispute centred on allegations made by the complainant, ES, concerning events that occurred during a visit to the appellant's home in December 2015. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Stanley and Bampton JJ.

The legal issues before the court included whether the trial judge erred in admitting evidence of uncharged acts, specifically an alleged indecent act near a fruit shop, and whether the judge failed to adequately consider each count of the indictment separately. The court was also required to determine if the verdicts were supported by the evidence, particularly in light of the appellant's character evidence and denials.

The court dismissed the appeal, finding that the trial judge was correct to admit the evidence of the uncharged acts. The Chief Justice reasoned that the uncharged acts were admissible as they demonstrated a pattern of behaviour and provided context for the charged offences, thereby possessing significant probative value. The judge's assessment of the complainant's evidence as a whole was deemed appropriate, as the uncharged acts were temporally and causally connected to the alleged assaults, and their combined force was crucial to understanding the complainant's submission and the appellant's conduct. The court rejected the argument that each count required a separate, formulaic consideration of evidence, finding it unnecessary and artificial in this context.

The appeal was dismissed, with all judges agreeing with the reasons provided by the Chief Justice.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I elaborate on my reasons below.The background evidence Mr Rendell was born on 21 March 1946 and has been married for approximately 50 years. He has no prior convictions of any significance. Three witnesses testified as to the appellant’s character, each of whom had known him for 20 years or more. They spoke of his ‘first class’ and ‘excellent’ professional and social reputation. The complainant, ES, was born in September 2002 and was the middle of three children. Her father had worked for the appellant in Melbourne and they had become friends. The appellant’s wife, Mrs Rendell, is ES’s godmother. The Rendells left Melbourne in 2013 and moved to West Lakes but the two families continued to see each other. In mid-2015 ES, her sisters and mother all visited the Rendells at West Lakes for about five days. ES testified, but Mr Rendell denied, that whilst in Adelaide the appellant kissed her on the lips. Mr Rendell drove them back to Melbourne on the common understanding that he would stay overnight. Mr Rendell testified that after they had arrived in Melbourne an argument broke out in the evening when ES’s mother complained to her husband that the roast he had cooked was still raw. ES’s father became aggressive, threw some things around and spoke angrily to Mr Rendell. Mr Rendell testified that he replied ‘don’t talk to me like that, I’ve just driven your wife and kids over from Adelaide … I don’t need to listen to this’. ES testified that after that argument, the appellant went to ES to tell her he was leaving and then kissed her, putting his tongue in her mouth. ES’s younger sister, who was present, testified that she saw only a hug and a friendly kiss. Mr Rendell denied that he had kissed ES or her sister before or after the incident. As it transpired, tempers cooled and the Mr Rendell stayed overnight, returning to Adelaide the following day. The families continued friendly contact by telephone and text. ES’s father arranged for ES and her older sister, MKS, to fly to Adelaide in December 2015 to stay with the Rendells. They arrived on the afternoon of 5 December 2015. The three counts of aggravated indecent assault with which the appellant was charged were alleged to have occurred in the late afternoon/evening of 6 December 2015 in an area of parkland adjacent to the lake at West Lakes. Earlier on that day the appellant, Mrs Rendell, ES and MKS took a dolphin cruise at Port Adelaide. On the way home, at about 5 pm, they stopped at a fruit shop on Military Road. ES testified that they stopped to purchase orange juice and strawberries. ES testified that whilst Mrs Rendell was in the shop, at Mr Rendell’s suggestion, she accompanied him to the beach. ES testified that the appellant kissed her on the way down to the beach. ES described the kiss as a long kiss on the lips involving Mr Rendell’s tongue. Mr Rendell testified that he stopped in the car at the fruit shop because his wife wanted strawberries for dinner. He testified that he initially stood by the car as his wife and MKS walked into the shop but that he eventually followed her into the shop because it was too hot to be outside. Mr Rendell’s evidence was that he and ES followed Mrs Rendell and MKS into the shop where he handed his wife a bottle of orange juice and asked her to pay for it. Mr Rendell denied that he walked to the beach with ES.

Evidence

Evidence Before The Court

ES’s evidence of her conversation with a police officer at the park was as follows:Q.While you were still at the park, did you give some details to someone about what had happened.A.When the police came, I just think I - they came and sat with me and my sister, M, and they were just like saying ‘What’s going on?’, but I don’t really recall how much information I gave them. I think most of the details I said in my statement.Q.So at the park, did you tell the police everything that had happened or just part of what had happened.A.I didn’t really tell them much. I still wanted to - I don’t know, I guess I just wanted everything to go away. I didn’t want to get him in trouble, Ken. I guess - I mean I didn’t really tell them much at all.Q.Was it only one police officer that you spoke to when you were with your sister.A.I think one was sitting, talking, and then one was just standing to the side, like, I don’t know, guarding or whatever.Q.Do you know if they were male or female police officer.A.No.Q.How were you feeling at that point when you were talking to the police.A.Well, I just wanted my mum and I wanted to go home and for everything to go away.Ground 7 – Admission of the evidence of the lie I turn next to the grounds of appeal dealing first with the complaints that inadmissible evidence was adduced, followed by the complaints concerning the Judge’s reasoning, and finally, with the contention that the verdicts were not supported by the evidence. In Harris v The Queen,[3] King CJ gave the following seminal exposition of the probative force of lies told by an accused:The probative character of some lies rises from their tendency to indicate that they proceed from a consciousness of guilt on the part of the accused. Instances of lies of that kind are false denials of having been in the company of an alleged victim at a material time or of having been at the scene of the crime at a relevant time, made at a time when the accused could not have known, unless he was the culprit, that there had been any wrongdoing in connection with the alleged victim or at the scene of the crime. Even in such cases courts must be on their guard against collateral motives for telling lies, such as the desire to conceal from a spouse that the accused was in the company of the alleged victim or was at the scene of the crime. The circumstances in which lies told after an accused becomes aware that he is or might be under suspicion in connection with the crime can amount to positive evidence of the commission of the crime must be rare. The tendency of persons under suspicion to wish to distance themselves from the persons or events connected with the alleged crimes and to endeavour to improve their position by falsehood is far too common to enable an inference to be drawn with confidence, in any but the rarest of cases, that lies proceed from a consciousness of guilt. Unjust results can easily flow from a readiness to treat lies of an accused person as positive evidence of guilt.[3] (1990) 55 SASR 321 at 323-324.

Decision

Reasons for decision

I would dismiss the appeal on this ground.Conclusion Appeal dismissed. STANLEY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice. BAMPTON J: I agree with the reasons of the Chief Justice and would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

The Judge made the following findings on the visit to the fruit shop:[213]Defence counsel made detailed submissions about the uncharged acts near the fruit shop. I have carefully considered those and the evidence to which I was taken. Again I accept ES’s evidence about what occurred. ES did not know where the fruit shop was. She was not able to tell the police where it was nor did the police drive her around to establish its location. ES did not immediately recognise the fruit shop when she was shown photographs in cross-examination. Her lack of familiarity with Adelaide and the location the fruit shop was clear. It was not suggested that she had been there previously. She described being taken on a track to the beach. There is in fact a track to the beach near the fruit shop which meets the description given by ES. The track was not particularly obvious from the fruit shop car park nor is it possible to see the beach. It is challenging to see how ES would have been able to give the evidence she did if she had not been taken there, as she said, by the accused.…[215]Mr Rendell denied going to the beach track. He and Mrs Rendell gave evidence that he went into the fruit shop. They further gave evidence that suggested that there was insufficient time for the events described by ES to have taken place. I am troubled by the times given by Mrs Rendell and Mr Rendell with a view to establishing that they were at the fruit shop only briefly. Their evidence was that the fruit shop was closing. Both were adamant that they could not have been there earlier than five minutes to five. Both said they left the fruit market to go home after five and that they arrived home somewhere around 5.10pm. Both gave evidence of a number of activities at home. Mrs Rendell said that her husband and ES left the house close to 5.30pm. Mr Rendell’s evidence is consistent with leaving slightly, but not much, earlier.[217]The evidence of Mr and Mrs Rendell does not cause me to doubt the evidence of ES as to the uncharged acts at the fruit shop.Ground 4 – Separate consideration Counsel for the appellant submitted that the Judge ought to have undertaken ‘the discipline of identifying and considering, in respect of each count, all of the evidence which bore on the count in question’. This is not a case in which it was appropriate to consider each count separately. All of the uncharged acts described in the testimony of ES and the descriptions of the other charged acts were admissible on each count. It was necessary to evaluate ES’s evidence as a whole. The assessment of ES’s evidence could not sensibly have proceeded by segmenting it into parts, which described each of the charged acts which were temporally and causally so closely interconnected. The probative weight of the uncharged acts lay in their combined force, which showed the escalating pattern of earlier behaviour that sufficiently emboldened Mr Rendell to act as brazenly as he did, and the reasons for ES’s submission to it. The contention that judges are required to engage in such a formulaic, artificially repetitive exercise in explaining their reasons should be rejected.