S, N v Police

Case [2021] SASC 49

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

S, N v POLICE

[2021] SASC 49

Judgment of the Honourable Justice Lovell 

7 May 2021

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

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

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

In the early hours of 8 September 2018, the appellant, an Uber driver, picked up the complainant from the Adelaide CBD. The complainant alleged that on the way to her house the appellant stopped the car and sexually assaulted her by kissing her, touching her breasts and moving her hand onto his penis. The appellant was convicted of one count of indecent assault following a trial in the Magistrates Court. He appeals the conviction.

Held, allowing the appeal:

1. The Magistrate erred in failing to consider the complainant's change in evidence as to how the first sexual contact began.

2. The Magistrate erred in failing to consider the appellant's state of mind as to whether the complainant was consenting.

3. The conviction is quashed and the matter remitted to the Magistrates Court for a retrial before a different Magistrate.

Criminal Law Consolidation Act 1935 (SA) ss 20 & 56; Magistrates Court Act 1991 (SA) s 42, referred to.

Fitzgerald v Kennard (1995) NSWLR 184; Fox v Percy (2003) 214 CLR 118; Le Cornu v Thomas (2019) 134 SASR 421; Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141; Parish v Director of Public Prosecutions [2007] 17 VR 412; Pell v The Queen (2020) 376 ALR 478; Pol v City of Port Adelaide Enfield [2017] SASC 116; R v Baden-Clay (2016) 258 CLR 308; R v Baden-Clay [2015] QCA 265; R v Bonara (1994) 35 NSWLR 74; R v JGS [2020] SASCFC 48; R v Livingstone (2011) 109 SASR 380; R v Moss [2011] SASCFC 93; R v Rendell (2018) 131 SASR 201; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, considered.

S, N v POLICE
[2021] SASC 49

Criminal – Magistrates Appeal

LOVELL J:

Overview

  1. In the early hours of 8 September 2019 the appellant, an Uber driver, picked up the complainant and her friend from the Adelaide CBD. Her friend was dropped off first. The complainant alleged that the appellant, having stopped the car near her house, sexually assaulted her before completing the journey to her house. The appellant was charged with one count of indecent assault. The matter proceeded to trial in the Magistrates Court. On 12 August 2020, the Magistrate convicted the appellant of indecent assault. The appellant appeals the conviction.

    Principles on appeal

  2. The right of appeal against conviction arises pursuant to s 42 of the Magistrates Court Act 1991 (SA) and is by way of a rehearing. The court is required to conduct a…

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S, N v Police [2021] SASC 49
Case
[2021] SASC 49
Decision Date

CaseChat Overview and Summary

In the case of S, N v Police, the appellant appealed against his conviction for indecent assault. The appeal was heard in the Supreme Court of South Australia. The appellant was convicted of indecently assaulting the complainant during an Uber ride. The prosecution's case was primarily based on the credibility and reliability of the complainant, who alleged that the appellant sexually assaulted her while she was a passenger in his Uber vehicle. The appellant argued that the trial magistrate erred in several respects, including the handling of the complainant's evidence and the consideration of his state of mind regarding consent.

The primary legal issues before the court were whether the trial magistrate erred in failing to consider the complainant's change in evidence regarding the initiation of the first sexual contact and whether the magistrate erred in not considering the appellant's state of mind about the complainant's consent. The court had to assess if these errors affected the safety of the appellant's conviction. The appeal hinged on whether the trial magistrate appropriately exercised their discretion in handling the complainant's evidence and the appellant's defence.

The court found that the trial magistrate did indeed err in not considering the complainant's change in evidence regarding the initiation of the first sexual contact. Additionally, the court held that the magistrate failed to consider the appellant's state of mind about whether the complainant was consenting, which was a critical aspect of the defence. These errors were deemed significant enough to affect the safety of the conviction. Consequently, the appeal was allowed, the conviction was quashed, and the matter was remitted to the Magistrates Court for a retrial before a different magistrate.

Orders

Orders of the court

Held, allowing the appeal:

1. The Magistrate erred in failing to consider the complainant's change in evidence as to how the first sexual contact began.

2. The Magistrate erred in failing to consider the appellant's state of mind as to whether the complainant was consenting.

3. The conviction is quashed and the matter remitted to the Magistrates Court for a retrial before a different Magistrate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The prosecution case relied upon the credibility and reliability of the complainant. The prosecution called the complainant, her friend, ER, her friend’s father, MR and her friend’s mother (for the purpose of complaint evidence) and the investigating officer. A record of interview of the appellant was also tendered. The appellant called two character witnesses. He did not give evidence at trial.Evidence of the complainant The complainant gave evidence that the night of Saturday, 7 September 2019, she went into the city with her cousin. They went to a tavern and a couple of clubs, meeting up with friends along the way. The complainant consumed approximately 12 alcoholic drinks over the course of the evening. As the night progressed, she became separated from her cousin. At around 3.40am, she ordered an Uber with a male friend to take them to their respective homes. She used her friend’s Uber account but paid with her credit card. The appellant was the Uber driver. The complainant said she was beginning to feel sober when the Uber picked her up. She stated that she was well aware of what was happening. She had not had any drinks prior to going into town. The appellant picked her and her friend up from Currie Street. The complainant got into the front seat and her friend sat in the backseat directly behind the appellant. Her friend’s address was keyed into the Uber application. The complainant said that her friend fell asleep almost instantly after they got into the car. The complainant chatted to the driver about her work and asked him general questions about his life and work. She was doing a lot of the talking. He asked her if she was drunk and she said, “No, I’m getting sober now.” They arrived at her friend’s house. He woke up and got out of the car. The complainant did not recall telling the appellant her exact dress but assumed that her friend entered both his address and her address when booking the Uber ride. The appellant started driving to Craigmore, where the complainant lived. The complainant said that the conversation died down because she had already asked so many questions. As they approached the Craigmore shops she said, “This is my area, this is where I live” to give the appellant an indication of where her house was located. He pulled over to the curb and turned off the engine. They were about a two-minute drive from her house. She did not ask him to stop and he did not tell her that he was going to pull over. It was dark and the appellant switched the headlights off. He said to her, “I don’t normally do this but you’ve made me feel really comfortable. Do you mind if I have a cigarette?”. The complainant assumed that he had seen her extinguish a cigarette before she hopped into the car as she had not told him she was a smoker. She said, “Yes” and they both had cigarettes while seated in the car with the windows wound down. Their seatbelts were both on. The complainant felt a “bit uncomfortable” as she did not consider it was appropriate for an Uber driver to stop and ask for a cigarette. The complainant said she just wanted to get home but was feeling intimidated. She did not say this to the appellant. It took about five minutes to smoke the cigarette and she did not recall any conversation while this happened.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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