R v Rorison - [2018] SASCFC 49

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RORISON
[2018] SASCFC 49
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hinton)
8 June 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - MISCELLANEOUS MATTERS - ALIBI
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS
Appeal against conviction. The appellant was found guilty by a jury of two counts of aggravated indecent assault.
At trial the prosecution case was that the offending occurred on a Wednesday night between 1 February 2015 and 31 March 2015 when the 12 year old complainant, LO, and her eight year old sister, AO, stayed overnight with PL, their grandmother, after their fortnightly Wednesday night cooking class. That night, it was alleged, the appellant was also staying at PL’s house. It was contended that sometime after everyone in the house had gone to bed, the appellant entered the room in which LO and AO were sleeping. He lay down next to LO and engaged in the sexual acts subject of the offences of which he was found guilty.
On appeal, the appellant argued that his convictions were unreasonable and could not be supported by the evidence adduced at trial. His primary argument was that the evidence excluded each Wednesday subject of the charges except 25 February 2015. Three witnesses gave evidence raising the possibility that on 25 February 2015 the appellant left PL’s house at around 7-7.30pm to go to the Emu Hotel and did not return to PL’s house until 3-3:30 am. At no time between when he returned to PL’s house and when LO and AO were picked up by their parents the same morning was he alone or in a position where he could have committed the offences with which he was charged.
The appellant's secondary argument was that LO and AO’s evidence was beset by inconsistencies of a number and nature that precluded the jury from being satisfied of the appellant’s guilt beyond reasonable doubt.
Held (per Hinton J, Kourakis CJ and Peek J agreeing), dismissing the appeal:
1. It was open to the jury to convict the appellant on the evidence.
2. Nothing in the differences or inconsistencies in the evidence as to whether the appellant stayed the night and did not go to the Emu Hotel on a cooking class night in February 2015 operated as an immoveable obstacle to the jury reasoning to guilt. Standing back and considering the combined force of the appellant’s complaints about the evidence of LO and AO, it remained open to the jury to convict the appellant on the evidence.
Criminal Law Consolidation Act 1935 (SA), ss 56, 353(1), referred to.
SKA v The Queen (2011) 243 CLR 400; Libke v The Queen 230 CLR 559, applied.
BCM v The Queen (2013) 88 ALJR…

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 Rorison

Details

AGLC: R v Rorison [2018] SASCFC 49
Case: [2018] SASCFC 49
Decision Date: 8 June 2018

CaseChat Overview and Summary

The appeal concerned the applicant, Rorison, who sought to challenge a jury verdict of guilty. The dispute revolved around whether the verdict was unreasonable or unsupported by the evidence. The matter was heard by the Court of Criminal Appeal.

The court was required to determine the principles governing appeals against verdicts on the grounds that they are unreasonable or cannot be supported by the evidence. Specifically, it had to consider the test to be applied by an appellate court when assessing such a verdict, and how to approach inconsistencies in witness testimony, particularly in the context of an alibi defence and the materiality of dates in charges.

The court affirmed that the test for an unreasonable verdict requires the appellate court to make an independent assessment of the evidence to determine if it was open to the jury to be satisfied of guilt beyond reasonable doubt. This involves considering the sufficiency and quality of the evidence, acknowledging that the jury has the advantage of observing witnesses. The court also considered the significance of inconsistencies in evidence, noting that the materiality of dates in charges depends on the circumstances and whether the controversy clearly turns on a specific occasion. The court indicated that the structure of the forensic contest and fairness to the accused are crucial in determining the weight to be given to such inconsistencies.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons that follow I would dismiss the appeal.Unreasonable and cannot be supported by the evidence - the principles In BCM v The Queen (BCM) a unanimous High Court held that the principles applicable in determining whether a verdict is unreasonable or cannot be supported by the evidence “are well established” and “collected in SKA v The Queen” (SKA).[1] The reference to SKA was to the joint judgment of French CJ, Gummow and Kiefel JJ where their Honours said:[2][1] (2013) 88 ALJR 101 at [31] (Hayne, Crennan, Kiefel, Bell and Keane JJ).[2] (2011) 243 CLR 400 at [11]-[14].It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queenby Mason CJ, Deane, Dawson and Toohey JJ:“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The QueenMcHugh, Gummow and Kirby JJ stated that the reference to “unsafe or unsatisfactory” in M is to be taken as “equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’.” The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: “In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”…In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”. In M, Mason CJ, Deane, Dawson and Toohey JJ stated: “In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.”[footnotes omitted]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The appellant’s secondary argument is to the effect that LO’s evidence was beset by inconsistencies of a number and nature that precluded a jury from being satisfied of the appellant’s guilt beyond reasonable doubt. Here the appellant pointed to the inconsistency between LO and AO as to what the appellant was purportedly wearing when he came into the middle bedroom and AO’s denial contrary to the evidence of LO that they spoke upon the appellant getting up off the blow-up mattress and leaving the middle bedroom. He also points to LO’s evidence about what she told A and M about her mother, the meeting, and LO’s evidence about her initially thinking the appellant might have had intercourse with her as indicative of a troubled 12 year old, engaged in attention seeking behaviours, who was prepared to say differing things at differing times for personal gain derived from whomsoever she was talking to. To the extent that AO’s evidence might be said to corroborate LO’s evidence of the indecent assaults, the appellant pointed to disparity in the evidence AO gave in court after speaking to her talk doctor and the content of the statement she provided to police in June 2015.Consideration In The Queen v Pfitzner this Court dealt with the question of the materiality of dates identified in charges.[5] Bray CJ who was in dissent in the outcome but not on the point of principle said:[6]... Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it; cf. Page v. Butcher. But obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case. If authority is needed for so obvious a proposition, it will be found in Wright v. Nicholson.[footnotes omitted][5] (1976) 15 SASR 171.[6] The Queen v Pfitzner (1976) 15 SASR 171 at 185. To similar effect Wells J said:[7]Particulars in an information tend to belie their own name. They are an aid, but can never be more than an aid, to determining what exactly the defence is called on to answer. Even where, at the end of a trial, they are indisputably correct as they stand, they could not, on their own, have performed the broad task of ensuring that the forensic contest is directed to the same issues, and that the accused is treated fairly.One or two examples will make the point clear. The defendant is charged with making an affray on a particular date. The Crown opening discloses that the witness to be called would depose to two quite separate incidents, each of which would, ex facie, answer the description given in the particulars in the information. Assuming that it is not possible in the circumstances to regard each incident as part of what was essentially one affray extending over a period covering both incidents, the defence would plainly be entitled to call upon the Crown to elect which incident was alleged to form the subject of the charge, even though the particulars as they stood correctly described both. It would be quite unfair to the defendant to instruct the jury that they could convict if either incident was found proved. Compare The Queen v. Warren, at page 318.Take a slightly different case. The accused is charged, on two counts, with indecent assault; each offence is alleged to have occurred near a particular country town on the same day. The two indecent assaults are alleged to have been committed during a journey in a motor car which the accused drove, and in which the girl was a passenger. According to the Crown opening, the car stopped on four occasions during the journey and the two offences allegedly were committed at two of the stopping places; each of the four stopping places could be identified by the girl. It seems to me that if the whole conduct of the Crown case rested upon allegations that the two offences occurred at stopping places 1 and 3, it would be wrong to direct the jury that they could convict of the offences alleged even if they believed that they occurred at stopping places 2 and 4 notwithstanding that those convictions would be wholly consistent with the particulars. It could well be otherwise, however, if the girl was so frightened and confused that she was unable to say where the offences were committed save that the car was not travelling at the time and the case was presented and fought on that basis. The exact structure of the forensic contest would determine what was, and what was not, in the circumstances, fair to the accused.Those cases are the converse, more or less, of the case before us, but they demonstrate at least that the course of the trial is crucial for the determination of what is fair to the accused; the Crown could not justifiably rely simply on the words of the particulars in the information.[footnotes omitted] [7] The Queen v Pfitzner (1976) 15 SASR 171 at 192-193.