R v Thompson

Case [2018] SASCFC 104

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v THOMPSON

[2018] SASCFC 104

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Peek and The Honourable Justice Hinton)

11 October 2018

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

CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - GENERALLY

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

Appeal against convictions of Indecent Assault.

The appellant was found guilty by a District Court Judge sitting alone of two counts of aggravated indecent assault of the complainant, J, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). He was acquitted of two further counts on the basis that the Judge was not satisfied that the relevant acts were assaults or had a sexual connotation.

At the time of the offending, J was 12 years old and the appellant was 45 years old. Count 2 occurred in mid-December 2015 when J’s family was staying at the appellant’s home in Mount Barker; J gave evidence that during the course of a piggyback ride, the appellant touched her vagina. Count 5 occurred in January 2016 when the appellant’s family was staying with J’s family at their home in Morgan; J gave evidence that during the course of ostensible “horseplay” the appellant exposed her vagina. The appellant gave evidence and denied any touching or exposure of the vagina.

Held per Peek J (Vanstone J agreeing) dismissing the appeal:

1. A review of all of the evidence demonstrates that neither verdict was unreasonable. M v The Queen (1994) 181 CLR 487 applied.

2. The Judge’s reasons adequately exposed the reasoning process linking his factual findings to his conclusions on counts 2 and 5. The Judge properly considered and resolved the various conflicts in the evidence. DL v The Queen (2018) 356 ALR 197 followed.

3.       J and her father gave evidence that on the night of count 2 the appellant said to J that he was sorry; the appellant denied that he had said this. Having found that the appellant had made that statement, it was open to the Judge to find, as he did, that it constituted an admission that the appellant had touched J’s vagina earlier that day. The Judge was not obliged to give a post-offence conduct direction in the circumstances. 

4.       The Judge did not fail to consider and determine the issue of J’s reliability. His Honour specifically directed that he was required to consider reliability as well as credibility; his finding that the complainant told “the truth” was a finding that he accepted that J was…

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R v Thompson [2018] SASCFC 104
Case
[2018] SASCFC 104
Decision Date

CaseChat Overview and Summary

The appellant, R v Thompson, was found guilty by Judge Boylan of counts 2 and 5 of the indictment, relating to an alleged indecent assault. The complainant, J, testified about two incidents: the "piggyback incident" (count 2) and the "front wedgie" incident (count 5). The appellant appealed his conviction, primarily on the grounds that the verdict was unreasonable or insupportable having regard to the evidence, and that there was misdirection or non-direction by the trial judge.

The central legal issues before the appellate court concerned the sufficiency and reliability of the evidence presented at trial, particularly in relation to count 2, the "piggyback incident." The court was required to determine whether the evidence, when considered as a whole, established the appellant's guilt beyond a reasonable doubt, and whether any inconsistencies or discrepancies in the complainant's evidence, as highlighted during cross-examination, rendered the conviction unsafe. The court also considered the potential corroborative value of certain evidence and the risk of reconstruction in the complainant's testimony.

The appellate court, comprising Vanstone, Peek, and Hinton JJ, allowed the appeal in relation to count 2. While acknowledging that the complainant's evidence regarding the "piggyback incident" was given shortly after the event and that the trial judge had found inconsistencies to be within expected bounds, the court found that it could not be satisfied of the appellant's guilt on count 2 beyond a reasonable doubt without having had the opportunity to observe and hear the witnesses directly. The court noted that the appellant's evidence and the cross-examination of the complainant revealed significant discrepancies regarding the nature and extent of the alleged touching during the "piggyback incident," including the number of occasions and the duration of contact.

Consequently, the court quashed the conviction on count 2 and directed that the appellant be retried on that count. The decision did not address count 5 in detail, implying that the appeal in relation to that count was either dismissed or not pursued on the same grounds.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This plea was rejected by the prosecution and pleas of not guilty to all counts were entered. After reserving judgment at the conclusion of the trial, Judge Boylan found the appellant not guilty of counts 3 and 4 and guilty of counts 2 and 5, the latter respectively referred to at trial and on appeal as “the piggyback incident” and “the front wedgie” incident.[3][3] The prosecution contend that the word “wedgie”, in relation to count 5, is misleading: “… whilst the appellant told the complainant he was going to give her a “front wedgie” and the appellant gave evidence that is what he did, the act described by the complainant was not in fact “a wedgie”.” There is force in that submission, but the term was used at trial and will be retained for the sake of uniformity. Background J and her older brother (TS) lived at the Morgan Caravan Park with their parents (Mr BS and Mrs JS) who were its managers; Mr BS was also a councillor on the Mid-Murray District Council. The appellant was also employed by that Council as its Director of Community Services; he was and is married to Mrs WT and they have a daughter (JT). In late 2014 and early 2015, while the appellant and his family were living in Murray Bridge, Mr BS and the appellant became friends and their families began spending considerable time together. During this period, the complainant’s brother TS (then aged 17) and the appellant’s daughter, JT (then aged 15), commenced a relationship. In December 2015, the appellant’s family moved to Mount Barker but the families stayed in touch and the relationship between TS and JT continued.Count 2: The “piggyback incident” at the appellant’s home For several days in mid-December 2015, J and her family stayed at the appellant’s house at Mount Barker so that Mr BS, who was skilled in carpentry, could build a deck there as a favour to the appellant. J gave evidence-in-chief that one night during that stay, while both families were in the kitchen in the lead up to dinner, she was playing with the family dog in the hallway. She was wearing a “tight skirt that just went around”. The appellant approached her, picked her up in his arms “like a baby” and carried her into the “front room” (the home theatre room). While she was there alone with him, there were three piggy backs events. The first event was aborted after she fell off of his back onto the couch very soon after getting on; there were then two “piggy back rides”. It is to be noted that there is a chance of confusion here in that the three piggy back events have sometimes been referred to in discussion and submissions as “three piggy back rides” whereas J sometimes referred to “two piggy back rides” following the initial aborted piggy back event. As to the second piggy back event/first piggy back ride, J gave the following evidence-in-chief:Q After you fell on to the couch what happened next?A He asked me to jump on his back again and his hands touched my vagina.Q When he asked you to jump on his back what did you do?A I jumped on it.QCan you describe for us how you were when were you on his back, where your body was positioned?AIt was just on his back and my - I think my legs were just hanging down and my arms were wrapped around his neck.Q Did you say anything to Shane when you got on to his back?A No.Q Do you remember whether he said anything to you when you got on to his back?A No, I can’t remember.Q You told us, [J], about your body. Where was Shane’s hands and legs?AShane’s - he was just standing up and his hands were wrapped underneath my bum and touching my vagina.Q Can you explain for us where his hands went?A They went on top of my knickers but not on the skin.Q Do you remember whether it was one hand or both hands?A Both hands.Q How long were his hands on top of your knickers for?A About five to 10 seconds.Q Did he say anything to you whilst his hands were on your knickers?A No.Q Did you say anything about his hands?A No.QAfter that happened, [J], that is his hand touched you on the knickers, what happened?A I jumped off.Q Was anything said by either you or Shane at that time?A Shane said ‘Sorry [J] we can try that again’.Q Did you say anything to him when he said that to you?A No.

Evidence

Evidence Before The Court

The cross-examination of J concerning count 2 included the following:QAfter that first attempt, I suggest that Shane said something like ‘I’m sorry [J], let’s try that again’?A Yes.…QWhat I’m suggesting to you [J] is that at no point in that second piggyback attempt did Shane’s fingers or hands touch your vagina?A No.Q Do you agree with me that your vagina was not touched?A No.HIS HONOURQ What do you say happened?A That his hands touched my vagina.XXNQ You say that you didn’t say anything, did you?A No.Q Did you fling yourself off?A Yes.Q Back onto the couch or onto the floor?A Onto the couch.Q Do you say that you then got up on his back for an extra time?A Yes.Q And on that occasion there was no touching of your vagina, was there?A There was touching.Q So there was a second time, was there?A Yes.QYesterday you didn’t tell us that there was any touching on the third occasion, the third piggyback, you only said it was the second one?A No, there were two touchings and three piggybacks.QYesterday when you were asked about the second piggyback, you said you were touched on the vagina and when you were asked about happened next, you said you had got up on his back, you said nothing about being touched on your vagina for the third piggyback, but that you got off and walked back to the kitchen. That’s what you said yesterday?A I can’t remember what I said.QWhat I suggest happened is that on the second piggyback you got on Shane’s back, he took a few steps outside the front room into the hallway heading towards the kitchen, and that you kind of slid off his back and your feet gently touched the floor and the piggyback only lasted a few steps and then both you and Shane walked down to the kitchen area?A No.QSo you disagree that the piggyback actually walked you out into the hallway and quite a few steps into the kitchen before you slid off his back and walked; you don’t agree with that?A No, I don’t agree with that.…QYesterday when you were describing the second piggyback, and saying that Shane’s hands or fingers touched your vagina area through your knickers, you said that what happened for about five to 10 seconds?A Yes.Q That was just a guess, was it?A That’s what I think it was, five seconds maybe, on his back.… QFor how much of the time that you’re on his back do you say that you could feel something touching against your vagina area?A About three seconds.…Q… I think it was a week ago, last Tuesday of last week that you had a meeting, does that sound right?A Yes.Q You were asked about the piggybacks by Ms Barnes, weren’t you?A Yes.QAnd on that occasion when you were asked about the piggyback ride, you said in that meeting that you were only touched on the vagina once, didn’t you?A Yes.QYou’ve told us that you went down to the kitchen area and there were other people including your mum and dad down in that area, correct?A Yes.Q And then later on you spoke to your mum, correct?A Yes.Q You told us that you told her what had happened?A Yes.Q Is it the case that you don’t remember now exactly what you told her?A Yes.QSo you’re agreeing with me, that you can’t remember exactly now what words you said to your mum?A Yes.QDid you just tell her that in the course of a piggyback, Shane had touched you on the vagina?A I can’t remember.QJust so that I’m very clear, I want to give you this very clear picture; what I’m suggesting really happened is that there was one attempt at a piggyback where you didn’t successfully get on and you fell back onto the couch. You agree with that much?A Yes.QThen I suggest there was one more piggyback where you were up on Shane’s back, he was holding your legs, and that you walked out on his back quite a few steps into the hallway and into the kitchen before you got off and then both walked the rest of the way?A No.QAnd I suggest to you that during the piggyback, that second piggyback, that you weren’t touched on the vagina area. I take it you disagree?A Yes.Q And I’m suggesting to you that there wasn’t of a third piggyback?A There was a third piggyback.The appellant’s evidence concerning count 2

Decision

Reasons for decision

VANSTONE J (dissent) PEEK J (dissent)
This is not an appropriate case for the application of the proviso. This Court cannot be satisfied of the appellant’s guilt on count 2 beyond reasonable doubt without seeing and hearing the witnesses.Conclusion For these reasons I would allow the appeal in relation to count 2. I would quash the conviction on that count and direct that it be retried

Ratio Decidendi

Legal Principle Established

Established by:

I first make some observations concerning matters raised in submissions and then turn to the matters referred to in the particulars. Potential corroboration? The assertion at paragraph [62] of the submissions that “the offending was uncorroborated” is incorrect. As to count 2, if one harks back to the days of practically mandatory corroboration warnings in South Australia, a Judge at that time would have left to the jury the evidence of J’s father concerning the alleged apology by the appellant to J as being potentially corroborative of her evidence as to count 2;[9] and if the jury found count 2 proven, that finding was potentially corroborative of her evidence as to count 5.[10] It is also probably the case that the matter of the appellant sending the video of J under the sprinkler to his business phone (which event the appellant admitted) would have been left as being potentially corroborative of her evidence as to both counts. One might discuss these matters at some length, but there is no point in doing so. Suffice it to say that the appellant has nothing to gain by opening up a debate as to corroboration.[9] “Potentially corroborative” in the sense that it was for the Judge to rule as to whether a particular item of evidence was potentially corroborative and for the jury to find whether it was corroborative in fact.[10] See, for example, B v The Queen (1992) 175 CLR 599; Gipp v The Queen (1998) 194 CLR 106.Young witness with a risk of reconstruction? – the complaint evidence As to the assertion of “a risk of reconstruction” at paragraph [66] of the appellant’s submissions, this was not a case involving a complaint (and hence a trial) long after the alleged date of the subject charge; nor was complaint first made after a series of offences had already allegedly occurred with a consequent risk of a blurring between the various charges. Here, J’s complaint to her mother as to the count 2 event was made shortly after on the same day; and, as to the later count 5 event, the complaint was again made to her mother shortly after on the same day, with the formal police complaint being made later that same month. I would add that although complaint evidence has only limited uses, and clearly does not constitute corroboration in the legal sense, both J and her mother gave clear evidence of very recent complaint and, in my view, the complaint evidence as presented here does fall at the stronger end of the spectrum of such evidence as is generally encountered. The Judge’s finding that any inconsistencies between J’s and her mother’s in this regard were no more than might be expected in the circumstances was well open to him.Evidence of a background of previous horseplay (innocuous interactions) The appellant relies on a body of evidence of previous apparently innocuous interactions between himself and children, including J herself. He stated that he often gave his own children piggybacks, and had also given J a piggyback when the two families were looking at display homes.[11] He gave evidence that he had “probably” given a “front wedgie” to his children before, but that they would be “very rare”. His wife gave similar evidence. The appellant did not think that he had given J a wedgie previously. He agreed that whether a wedgie is inappropriate depends “on the context … and situation”, and that “some parents might” complain if their child was given a wedgie by another adult. [11] The appellant’s daughter, JT, also gave evidence of that fact: T363.