R v Tancock (No 2) - [2015] SASCFC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TANCOCK (No 2)
[2015] SASCFC 22
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Nicholson)
10 March 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
Re-sentencing pursuant to s 354(1) of the Criminal Law Consolidation Act 1935.
Criminal Law Consolidation Act 1935 (SA) s 354(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Tancock [2014] SASCFC 110, considered.

R v TANCOCK (No 2)
[2015] SASCFC 22
Court of Criminal Appeal: Vanstone, Blue and Nicholson JJ

THE COURT.       These reasons are to be read in conjunction with the principal judgment in this matter.[1] In that judgment, this Court unanimously dismissed the appellant’s appeal against convictions for two counts of aggravated assault causing harm[2] and three counts of aggravated indecent assault[3] but, by majority,[4] allowed the appeal against conviction for a third count of aggravated assault causing harm.[5]
[1]    R v Tancock [2014] SASCFC 110.
[2]    Counts 1 and 3 on the information.
[3]    Counts 2, 4 and 5 on the information.
[4]    Blue and Nicholson JJ, Vanstone J in dissent.
[5]    Count 6 on the information.
Between the hearing of the appeal against conviction and the delivery of judgment, the appellant was sentenced in the District Court utilising section 18A of the Criminal Law (Sentencing) Act 1988 (SA) on the basis of having been convicted of all six counts. On the delivery of judgment, the matter was remitted to the sentencing Judge for further consideration with respect to sentence, bearing in mind that, as a result of the appeal, the appellant fell to be sentenced for only five of the six counts. No appeal against sentence was then or has thereafter been filed.
Reconsideration of the sentence by the Judge did not proceed. Rather, his Honour’s and this Court’s attention was drawn to subsection 354(1) of the Criminal Law Consolidation Act 1935. That subsection provides:
(1)If it appears to the Full Court that an appellant, although not properly convicted on some count or part of the information, has been properly convicted on some other count or part of the information, the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefore as it thinks proper and as may be warranted in law by the verdict on the count or part of the information on which the Court considers that the appellant has been properly convicted.
Further submissions were invited from the parties as to the procedure to be adopted. It is agreed that this Court should proceed to resentence the appellant on the basis of the relevant sentencing materials that were before the Judge. Neither party wishes to make further submissions.
We have considered the materials that were before the Judge. We have also considered his Honour’s sentencing…

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 Tancock (No 2)

Details

AGLC: R v Tancock (No 2) [2015] SASCFC 22
Case: [2015] SASCFC 22
Decision Date: 10 March 2015

CaseChat Overview and Summary

In *R v Tancock (No 2)*, the Full Court of the Supreme Court of South Australia considered an appeal against a conviction for indecent assault. The appellant, Tancock, had been found guilty of indecently assaulting a young girl.

The central legal issue before the Full Court was whether the trial judge had erred in law by failing to direct the jury on the specific elements of the offence of indecent assault, particularly concerning the requirement for the assault to be "indecent" and the need for the prosecution to prove the accused's knowledge of the victim's lack of consent or recklessness as to that consent. The appeal also raised questions about the adequacy of the summing-up in relation to the issue of consent.

The Full Court held that the trial judge's directions to the jury were insufficient. Their Honours explained that for a conviction for indecent assault, the prosecution must prove that the act was indecent and that the accused either knew the complainant did not consent or was reckless as to whether she consented. The judge's failure to adequately explain these elements, particularly the subjective element of the accused's state of mind regarding consent, constituted a misdirection. The court found that the jury may have convicted the appellant without properly considering whether the prosecution had discharged its burden of proof on these essential aspects of the offence.

Consequently, the Full Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders