R v Warsap - [2010] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WARSAP
[2010] SASC 40
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice White)
26 February 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Appeal against conviction for persistent sexual exploitation of a child – conduct the subject of a charge consisted of four occasions over a period of approximately seven months – complainant suffered from Attention Deficit Hyperactivity Disorder (ADHD).
Whether complainant’s evidence unreliable or untruthful – whether complainant’s evidence contradicted by other prosecution witnesses – consideration of prior inconsistent statements – consideration of complainant’s evidence in light of intellectual disability – whether directions made by trial Judge adequate in all the circumstances – whether s 12A of the Evidence Act 1929 applied.
Held (per Bleby J, Duggan and White JJ agreeing): Appeal dismissed – open for the jury, properly directed, to make an assessment of the complainant’s evidence – directions of trial Judge appropriate in all the circumstances.
Criminal Law Consolidation Act 1935 (SA) s 50, s 353; Evidence Act 1929 (SA) s 12A, referred to.
M v The Queen (1994) 181 CLR 487, applied.
Jones v The Queen (1997) 191 CLR 439; Libke v The Queen (2007) 230 CLR 559; R Weetra (2004) 236 LSJS 328; Dearman v Dearman (1908) 7 CLR 549; Longman v The Queen (1989) 168 CLR 79; Bromley v The Queen (1986) 161 CLR 315; R v Shueard (1972) 4 SASR 36, considered.

R v WARSAP
[2010] SASC 40
Court of Criminal Appeal: Duggan, Bleby and White JJ

DUGGAN J: I agree that the appeal should be dismissed for the reasons given by Bleby J.
BLEBY J.
Introduction
The appellant was found guilty by a jury of persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The period of the alleged offending was between 11 May 2007 and 18 December 2007. The complainant was aged 15 at the time of the offending. He was aged 17 at the time of the trial. According to the complainant’s evidence the acts of sexual exploitation consisted of four occasions of the appellant allegedly masturbating the complainant’s penis, two acts of anal sexual intercourse by the appellant with the complainant and two acts of fellatio committed on the complainant by the appellant. All the acts were alleged to have occurred at the appellant’s home.
The appellant appeals against his conviction on two grounds. The first is that the conviction is either unreasonable or cannot be supported having regard to the evidence, or it would be unsafe or dangerous to allow the verdict to stand. The second…

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 Warsap

Details

AGLC: R v Warsap [2010] SASC 40
Case: [2010] SASC 40
Decision Date: 26 February 2010

CaseChat Overview and Summary

The case of R v Warsap involved an appeal against the conviction of the appellant for persistent sexual exploitation of a child. The appellant was convicted based on four occasions of sexual exploitation over a period of approximately seven months. The complainant, who suffered from Attention Deficit Hyperactivity Disorder (ADHD), was the sole witness to the acts of sexual exploitation. The appellant did not provide any evidence during the trial. The primary legal issues addressed in this case were whether the complainant’s evidence was reliable or truthful, whether it was contradicted by other prosecution witnesses, and whether the trial Judge's directions were adequate.

The court considered several factors in assessing the reliability of the complainant’s evidence, including prior inconsistent statements and the complainant’s intellectual disability. Dr Govan’s expert evidence indicated that the complainant was capable of having incorrect fantasies, but this did not necessarily mean he was incapable of telling the truth. The court held that the lack of detail in the complainant’s description and his inability to recall specific times did not necessarily undermine the reliability of his evidence, particularly in the context of a charge under s 50 of the Criminal Law Consolidation Act. The court also found that the trial Judge's directions were appropriate and that the lack of corroboration did not require a direction that it was unsafe to convict without it. The court rejected the grounds of appeal related to the unreliability of the complainant’s evidence and the adequacy of the trial Judge's directions.

In conclusion, the court found that the appeal should be dismissed, as the verdict was not unreasonable or unsupported by the evidence. The court acknowledged that while there was no direct corroboration of the acts of sexual exploitation, there was corroborative evidence regarding other aspects of the complainant's testimony, such as his stay at the appellant's house and the nature of their relationship. The court emphasised that the ultimate question was whether, considering the entire evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Dr Govan also agreed with the proposition that the complainant was a person “who was capable of incorrect fantasies”. However, in re-examination he was asked whether a person not suffering from the sorts of impairments that the complainant had could have incorrect fantasies, to which he replied:A.I think most people have fantasies.Q.Might be incorrect of course.A.Correct.The attacks on the complaint’s evidence There was no evidence to corroborate the complainant’s evidence of the acts of sexual exploitation. The complainant’s evidence was the only evidence of those acts. The appellant did not give evidence. The first act complained of by the complainant was an act of masturbation on the day before Mothers Day 2007. It took place in the lounge room of the appellant’s home while the complainant was naked and the appellant was clothed. Other details were given of what happened. He identified it as happening on the day before Mothers Day because on the following day, when returning the complainant to his home, the appellant bought some chocolate and roses for him to give to his mother for Mothers Day. The complainant could not identify the times of the other occasions of masturbation, but he described two of them as occurring in the lounge room and one in the appellant’s bedroom, the latter when the complainant was lying on the appellant’s bed. He described the acts of intercourse as occurring in the bedroom, and that the appellant used Vaseline as a lubricant. He described the unpleasant consequences of the first occasion and how he was told by the appellant, on the second occasion, to count to 200. He was unable to identify precisely when the acts of fellatio occurred other than to say that the first one occurred sometime after the first act of anal intercourse. The complainant’s evidence was that, while he enjoyed being in the company of the appellant, he did not enjoy the acts the subject of the charge and that he felt ashamed of his involvement. Although the complainant’s last overnight stay with the appellant was in December 2007, he first mentioned the sexual activity with the appellant to his mother in April 2008, following which, in the company of the Deputy Principal of the school he was attending, he went to the police on 29 April 2008. On the hearing of this appeal the first attack on the complainant’s reliability as a witness was based on the lack of detail in his description of the events and his inability to recall when they occurred, together with what were described by counsel as a series of “bizarre responses”. Inability to remember detail may impact upon the jury’s assessment of the reliability of the complainant. However, the elements of an offence under s 50 of the Criminal Law Consolidation Act, which I have mentioned above, need to be borne in mind when assessing whether it was open to the jury to convict the appellant of an offence under that section. Such an attack, while relevant to a charge of an individual offence, loses much of its sting in relation to an offence under s 50.

Decision

Reasons for decision

BLEBY J

I accept the respondent’s submission that the combination of the attacks made on the reliability of the complainant as a witness did not call for a direction that it was unsafe to convict without corroboration. Dr Govan’s evidence did not indicate that the complainant was incapable of telling the truth or that he suffered from delusions or hallucinations that would have impacted upon his ability accurately to recall events in which he had been involved. In my opinion the trial Judge’s direction was appropriate in all the circumstances. I would reject this ground of appeal.Conclusion It follows that in my opinion the appeal should be dismissed. WHITE J: I agree that the appeal should be dismissed and with the reasons of Bleby J.

Ratio Decidendi

Legal Principle Established

Established by: BLEBY J

It should also be noted that, while there was no corroboration of the complainant’s evidence of the events giving rise to the charge, there was corroboration of many other events to which he deposed. The fact that he stayed at the appellant’s house overnight was confirmed by the evidence of H and of the complainant’s mother. The fact that the relationship between the appellant and the complainant included the giving of gifts by the appellant to the complainant in the form of money, a mobile phone and other items was supported by the evidence of his mother. The complainant’s own description of a father/son relationship was confirmed by the observations of H. The fact that the appellant bought chocolate and roses for the complainant to give to his mother on Mothers Day in 2007 was confirmed by the complainant’s mother. That bore some significance because it was related to the first act of sexual abuse deposed to by the complainant the previous night. The fact that the complainant said he had never contacted the appellant after he had spoken to the police was confirmed by the date of the text message. It was never suggested that there was any contact after that.Ground 1 – Consideration Section 353 of the Criminal Law Consolidation Act 1935 (SA) requires that the Court must allow the appeal “if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence …”. The test to be applied is that enunciated by Mason CJ, Deane, Dawson and Toohey JJ, with whom Gaudron J agreed, in M v The Queen:[1]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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.…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. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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.[Footnotes omitted][1] (1994) 181 CLR 487, 493-495.