R v Tancock

Case [2014] SASCFC 110

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TANCOCK

[2014] SASCFC 110

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Nicholson)

27 October 2014

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

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

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE

Appeal against convictions for three offences of assault causing harm and three offences of indecent assault after a trial by judge alone - victim four year old son of the appellant's partner - whether verdicts unreasonable or not supported by the evidence - whether conclusions drawn by trial judge were available in face of conflicting medical opinion as to possible causes of injuries the subject of counts 2, 4 and 5 - whether count 6 could be proved in absence of an allegation by victim that appellant was responsible - whether propensity reasoning available.

Held per Vanstone J (Blue and Nicholson JJ agreeing):  verdicts on counts 1 to 5 were open on the evidence - no error of approach demonstrated - appeal in relation to counts 1 to 5 dismissed.

Held per Blue J (Nicholson J agreeing, Vanstone J dissenting):  evidence in support of count 6 was not sufficient to prove guilt - appeal in relation to count 6 upheld - conviction quashed and verdict of acquittal substituted.

Evidence Act 1929 (SA) s 34CA, s 9(2), s 34L(5), s 34P(2); Criminal Law Consolidation Act 1935 (SA), s 20(4), s 56, referred to.
M v The Queen (1994) 181 CLR 487; R v M, BJ (2011) 110 SASR 1; Thompson v The Queen (1989) 169 CLR 1; Pfennig v The Queen (1995) 182 CLR 461; R v Liddy (2002) 81 SASR 22, applied.

R v TANCOCK
[2014] SASCFC 110

Court of Criminal Appeal:       Vanstone, Blue and Nicholson JJ

  1. VANSTONE J:     After a trial by judge alone in the District Court the appellant was found guilty of three counts of assault causing harm and three counts of indecent assault.

  2. He now appeals against those convictions upon the sole ground that the verdicts are “unsafe and unsatisfactory”.  The ground encompasses complaints about the way in which the trial judge assessed the evidence of the witnesses.  Counsel argued that due to infirmities in the evidence it was not open to the judge to reach a state of satisfaction of the appellant’s guilt beyond reasonable doubt.

    Background

  3. The victim, whom I shall call “V”, is the son of the appellant’s partner.  V’s mother and father separated before V was born in May 2008 and V lived with his father from the age of about five months.  The appellant and V’s mother began a relationship in late 2011.  At the time of the charged incidents in late 2012, V was four…

Continue reading R v Tancock

Sign in free to access the full text

Details
AGLC
R v Tancock [2014] SASCFC 110
Case
[2014] SASCFC 110
Decision Date

CaseChat Overview and Summary

The appellant, R v Tancock, appealed against convictions for three offences of assault causing harm and three offences of indecent assault, following a trial by judge alone. The victim was the four-year-old son of the appellant's partner. The appeal was heard by Vanstone, Blue, and Nicholson JJ of the Supreme Court of South Australia.

The central legal issues before the court were whether the verdicts reached by the trial judge were unreasonable or unsupported by the evidence. This encompassed whether the conclusions drawn by the trial judge regarding the cause of the victim's injuries were available, particularly in light of conflicting medical opinions. Additionally, the court considered whether one of the indecent assault charges could be proven in the absence of a direct allegation by the victim against the appellant, and whether propensity reasoning was applicable.

Vanstone J, with whom Blue and Nicholson JJ agreed, held that the verdicts on counts 1 to 5 were open on the evidence and that no error of approach had been demonstrated. This reasoning was based on the combination of timely complaints made by the child, contemporaneous medical evidence, the skilful interview of the child, and the child's evidence at trial, which together constituted a strong case. Blue J, with whom Nicholson J agreed, dissented on count 6, finding that the evidence was insufficient to prove guilt.

Consequently, the appeal in relation to counts 1 to 5 was dismissed. However, the appeal in relation to count 6 was upheld, with the conviction quashed and a verdict of acquittal substituted.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

He now appeals against those convictions upon the sole ground that the verdicts are “unsafe and unsatisfactory”. The ground encompasses complaints about the way in which the trial judge assessed the evidence of the witnesses. Counsel argued that due to infirmities in the evidence it was not open to the judge to reach a state of satisfaction of the appellant’s guilt beyond reasonable doubt.Background The victim, whom I shall call “V”, is the son of the appellant’s partner. V’s mother and father separated before V was born in May 2008 and V lived with his father from the age of about five months. The appellant and V’s mother began a relationship in late 2011. At the time of the charged incidents in late 2012, V was four years old. V’s father was primarily responsible for his care. Pursuant to Family Court orders V would stay with his mother at her home on two days (although often at a childcare centre) and on those nights each week. The appellant was present for these visits. The prosecution case was that V suffered injuries during five separate access visits to his mother and the appellant. The prosecution case relied on a recorded interview with V conducted by a Child Protection Services psychologist as well as V’s unsworn evidence at trial. It also relied on medical evidence from a paediatric resident medical officer, Dr Nolan, and a specialist paediatrician, Dr Edwards, who saw V on 25 February and the morning of 26 February 2012 respectively, and evidence of V’s father about complaints made by V to him and photographs he had taken of marks he saw on V’s body at various times. The defence called evidence of the appellant, V’s mother, and of a specialist forensic pathologist, Associate Professor Winskog. In essence the defence case was that the allegations had been made up by V’s father and that V had been coached to make allegations against the appellant. The appellant claimed that the injuries must have been caused by V’s father or by V himself. The boy’s mother said she had not seen anything untoward in the appellant’s treatment of V, and nor had V complained to her about the appellant’s conduct. The counts alleged against the appellant and the evidence called to support them may be summarised as follows. Count 1 – aggravated assault causing harm said to have been committed between 16 November and 20 November 2012. Both in his recorded interview and in evidence before the judge, V claimed that the appellant had hit him on the buttocks with a spoon. There was evidence of bruising to the buttocks. The bruising was discovered by V’s father after V had spent a weekend with his mother and the appellant. V told his father that the appellant had hit him and this statement was admitted pursuant to s 34CA Evidence Act 1929. Count 2 – aggravated indecent assault said to have been committed between 6 and 10 January 2013. After V returned from an access visit, V’s father said he discovered a number of bruises on V’s penis. He photographed them. V told the psychologist that the appellant caused the “spots” on his “willy”. In evidence V said that the appellant “flicked” his “willy”. A similar statement earlier made to V’s father was admitted pursuant to s 34CA of the Evidence Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON J (dissent)
In my opinion, the mode of reasoning employed by the judge throughout is unexceptional.Conclusion I have dealt with the principal arguments made for the appellant by his counsel. No error is made out and none of the arguments causes me any misgivings about the conclusions reached by the trial judge. Indeed, I consider that the reasons given for the verdicts are careful and comprehensive. Although the child victim in this matter was of very tender years and could not be examined and cross-examined to the extent that an older witness might be, the combination of timely complaints, contemporaneous medical evidence and the apparently skilful interview of the child closer to the time of the events, coupled with the child’s evidence before the judge, in the end amounted to quite a strong case. Having considered the whole of the evidence before the judge, I am left with no misgivings about the verdict. I would dismiss the appeal.BLUE J: The defendant was charged on information with three counts of aggravated indecent assault[1] and three counts of aggravated assault causing harm.[2] After a trial by judge alone in the District Court, the defendant was convicted on all six counts.[3] The sole ground of appeal is that the verdicts are unreasonable and cannot be supported having regard to the evidence.[1] Criminal Law Consolidation Act 1935 (SA) s 56.[2] Criminal Law Consolidation Act 1935 (SA) s 20(4).[3] R v Tancock [2014] SADC 54. The background, issues and arguments on appeal are set out in the reasons for judgment of Vanstone J.Count 5 It was common ground on the evidence of V’s father, V’s mother and the defendant that during a scheduled access visit V was in the care of his mother and the defendant from approximately 5.30 pm on Saturday 23 February 2013 until approximately 8.00 am on Monday 25 February 2013 when he was dropped off by V’s mother at childcare. V was picked up by his father from childcare at approximately 4.30 pm on that day and taken to the Northern Medical Clinic. V’s father had no access to V between 5.30 pm on 23 February and 8.00 am on 25 February 2013. On the afternoon of Saturday 23 February 2013, V’s father took photos of V’s penis at 4.57 pm shortly before he dropped V off to V’s mother. In turn, V’s mother took a photo of V’s penis at 5.36 pm just after V arrived. Those photos do not show any fresh or recent injury to V’s penis. On the morning of Monday 25 February 2013, V’s mother took two photos of V’s penis at 7.12 am before V left her house to go to childcare. V’s father took two photos of V’s penis on the afternoon of that day at the Northern Medical Clinic. Both sets of photos showed fresh injuries to V’s penis that were not present on 23 February when the first set of photos was taken by V’s father and mother. A comparison of the two sets of photos unequivocally demonstrates that V suffered injuries to his penis over that access visit while V was in the care of V’s mother and the defendant. The two sets of photos taken by V’s mother prove that it was not possible for V’s father to have caused those injuries. V’s mother gave evidence that she did not cause the injuries and there was no challenge to that evidence.[4] [4] V’s mother was called as a witness by the defendant.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.