RGB v Police

Case [2022] SASC 124

Supreme Court of South Australia

(Magistrates Appeal: Criminal)

RGB v POLICE

[2022] SASC 124

Judgment of the Honourable Auxiliary Justice Parker 

2 November 2022

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - REMISSION FOR REHEARING

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS

The appellant appeals against his conviction on one count of indecent assault (count two) which occurred between 1 January 1973 and 1 January 1974. The appellant was acquitted of a further count of indecent assault (count one).

The complainant gave evidence, but 23 minutes of her evidence-in-chief, being the majority of her evidence on count two, was not recorded due to equipment malfunction.  The appellant gave evidence as part of his defence case. 

The appellant brings six grounds of appeal.  Ground 1 is that the Magistrate erred in directing himself that the forensic disadvantage was to be taken into account in scrutinising defence evidence.  Ground 2 is that the Magistrate erred in failing to have regard to the finding of support for the appellant’s evidence on count one, and the implicit acceptance of his evidence in relation to that count, when considering the appellant’s credibility and reliability in in relation to count two.  Ground 3 is that the Magistrate erred in failing to provide any or adequate reasons for finding that the appellant's evidence was false.  Ground 4 is that the Magistrate erred in failing to determine whether the appellant’s evidence raised a reasonable doubt as to proof of the charge.  Ground 5 is that the Magistrate erred in failing to give himself “a Murray direction” and a direction, or an adequate direction, that he was required to scrutinise the complainant’s evidence in light of the significant disadvantage the appellant faced in challenging her evidence.  Ground 6 is that the finding of guilt on count two is unreasonable and against the weight of the evidence. 

Held:

1.      The appeal with respect to grounds 3 and 4 and also ground 6 to the extent that it replicates the matters considered under grounds 3 and 4 is upheld.

2.      The appeal with respect to grounds 1, 2 and 5 and also ground 6 to the extent that it does not replicate grounds 3 and 4 is dismissed.

3.      The conviction entered against the appellant on 8 June 2022 is quashed.

4.      An order of acquittal be entered.

Criminal Law Consolidation Act 1935 (SA) s 56(1); Magistrates Court Act 1991 (SA) s 42; Evidence Act 1929 (SA) ss 34CB, 34L; Criminal Procedure Act 1921 (SA) s 158(1)(a), referred to.

S, N v Police [2021] SASC 49; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; R v T, WA (2014) 118 SASR 382; JGS v The Queen [2020] SASCFC 48; Murray v The Queen (2002) 211 CLR 193; R v…

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RGB v Police [2022] SASC 124
Case
[2022] SASC 124
Decision Date

CaseChat Overview and Summary

The case of RGB v Police involves an appeal by the appellant against his conviction and sentence, as determined by a Magistrate in South Australia. The appellant challenges the validity of his conviction on several grounds, including the Magistrate's handling of the forensic disadvantage, the consistency of the evidence, and the plausibility of certain testimonies. The Supreme Court of South Australia was tasked with reviewing these grounds and determining whether the appeal should be upheld.

The primary legal issues revolved around whether the Magistrate erred in his assessment of the appellant’s evidence, particularly in light of the forensic disadvantage and the consistency of testimonies over an extended period. Specifically, the court examined whether the Magistrate correctly considered the appellant's evidence that he was often absent from home and did not take daytime naps, which would have limited his opportunity to commit the alleged offence. Additionally, the court scrutinised whether the Magistrate's reasons for rejecting the appellant’s evidence were adequate and whether there were inconsistencies in his findings.

In its reasoning, the Supreme Court found that the Magistrate correctly acknowledged the forensic disadvantage faced by the appellant, which included the difficulty in gathering evidence due to the time elapsed since the alleged offence. However, the court identified an inconsistency in the Magistrate’s assessment of the appellant’s evidence. The Magistrate found the appellant's evidence regarding his absence from home and lack of napping to be plausible and definitive as the passage of time allowed. Yet, the Magistrate also concluded that the appellant’s evidence was false beyond reasonable doubt. This inconsistency led the court to conclude that there was a reasonable doubt as to the appellant's guilt on count two, leading to the quashing of the conviction and the entry of a verdict of acquittal.

The final orders of the court were to uphold the appeal on grounds 3 and 4, dismiss grounds 1, 2, and 5, quash the conviction entered against the appellant, and order a verdict of acquittal. This decision highlights the necessity for judicial consistency in evaluating evidence and the importance of addressing potential conflicts in findings when considering the reliability and sufficiency of evidence in criminal trials.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I consider it to be clear as a matter of construction that the words used by the Magistrate, namely “[t]his evidence was plausible … and as definitive as the lapse of time of 48 or 49 years allowed” (emphasis added) related to both the appellant’s evidence that he was often absent from home during the week and also his evidence that he did not take daytime naps, i.e., “this evidence” referred to both limbs of the preceding sentence. The evidence of absence from home served only to limit the appellant’s opportunity to commit the alleged offence but did not preclude its commission. In that respect I accept the submission by the respondent. However, the appellant’s evidence that he did not take naps operated to remove the opportunity to commit the offence. I consider that the finding by the Magistrate that the appellant’s evidence that he did not take naps was plausible and as definitive as the lapse of time allowed gave rise to a reasonable doubt that he had the opportunity to commit the offence alleged in count two. The Magistrate did not consider or explain how the finding of plausibility and definitiveness might be reconciled with the subsequent finding that the evidence of the appellant was false beyond reasonable doubt. Whether or not that was the product of binary or preferential reasoning as the appellant contends, I consider that the rejection of the appellant’s evidence beyond reasonable doubt was plainly inconsistent with the Magistrate’s finding that his evidence relating to lack of opportunity was as plausible and definitive as the passage of time allowed. Given that express finding on the evidence, I am satisfied that there was a reasonable doubt as to the proof of count two. I therefore uphold ground 4.Ground 5 The extent to which reasons for a decision by a judge alone must replicate the instructions that would be given to a jury was considered by the Full Court in R v Keyte.[43] Doyle CJ stated[44] that there was considerable force in what Kirby P had said in R v Winner where his Honour stated:[45]It is not self evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred.[43] (2000) 78 SASR 68.[44] Ibid at [54].[45] (1995) 79 A Crim R 528 at 530-531. Doyle CJ held in Keyte that the circumstances of that case required the Judge to explain what use was made of the evidence of uncharged acts and also to explain whether and how evidence relevant to one count was used as evidence tending to prove another count. These two matters involved difficult areas of law and the silence of the Judge’s reasons prevented the Court of Appeal from discharging its statutory function.[46] Doyle CJ also stated that the adequacy of reasons will depend upon the circumstances of a case and the issues involved.[47] However, his Honour made clear that he was not suggesting that a decision of a judge must set out all matters that would be found in directions given to a jury.[48][46] (2000) 78 SASR 68 at [55].[47] Ibid at [57]. [48] Ibid at [58].

Decision

Reasons for decision

In my consideration of ground 4 I have concluded that due to the finding by the Magistrate that the evidence of the appellant concerning lack of opportunity to commit the offence was plausible and definitive as the passage of time allowed, a reasonable doubt existed as to the guilt of the appellant. For that reason, consistently with the decision of the High Court in Fowler, and of the Court of Appeal in Kerin, the appellant’s conviction must be quashed and a verdict of acquittal must be entered. Conclusion I make the following orders:1.I uphold the appeal on grounds 3 and 4 and also ground 6 to the extent that it replicates the matters considered under grounds 3 and 4.2.I dismiss grounds 1, 2 and 5 and also ground 6 to the extent that it does not replicate grounds 3 and 4.3. I quash the conviction entered against the appellant on 8 June 2022.4. I order that a verdict of acquittal be entered.

Ratio Decidendi

Legal Principle Established

For these reasons, the respondent submits that the evidence of the complainant in relation to count two was appropriately detailed. After carefully considering her evidence, the Magistrate assessed her to be a most impressive witness. Her evidence at trial was not materially inconsistent with earlier statements. Bearing in mind the forensic disadvantage to which the appellant was subject, the respondent submits that his evidence does not give rise to a reasonable doubt as to his guilt and should be rejected.Consideration Ground 1 The appellant complains in ground 1 that the Magistrate erred by directing himself that the forensic disadvantage to which the appellant was subject was to be taken into account in assessing defence evidence. The Magistrate referred at several points in his judgment to the issue of forensic disadvantage. In particular, his Honour stated:The defendant RB’s evidence on count 2 was consistent and his denial of any sexual assault or contact with GB emphatic. I take into account the long delay from the alleged offending until the trial may make it more difficult for the defendant to raise a detailed defence (for instance, one based on an alibi or, at least, that it was unlikely he would have been home at the time of the alleged offence), or to challenge some details of GB’s evidence, due to witnesses or other evidence being unavailable or untraceable. At a later point in the judgment, after discussing the evidence of the appellant that there were times during the latter part of 1973 when he would have been away from home during the day and that he denied having the habit or practice of taking a daytime lie down or nap, the Magistrate observed that this evidence was plausible and:… as definitive as the lapse of time of 48 or 49 years allowed. In considering RB’s evidence, I have regard to the significant forensic disadvantage (outlined earlier) to RB when assessing his evidence (and the evidence generally). The two passages from the judgment that I have quoted make it quite clear, particularly when read in the context of the judgment as a whole, that the Magistrate correctly approached the question of forensic disadvantage. It is certainly not the case that his Honour approached the appellant’s evidence on the footing that it should be treated as lacking in reliability because of the time elapsed. His Honour correctly identified that, when assessing the appellant’s evidence, it was necessary to recognise that the passage of time presented a real difficulty for him in marshalling evidence and responding to the allegations made by the complainant. I therefore reject the contention by the appellant that the Magistrate misunderstood how forensic disadvantage bore upon the assessment of his evidence. To the contrary, the Magistrate was alert to the difficulty faced by the appellant. I find that the Magistrate did not err in directing himself that forensic disadvantage was to be taken into account in scrutinising the defence evidence. The approach adopted by his Honour was perfectly orthodox and correct. I dismiss ground 1. Ground 3