San v The Queen - [2020] SASCFC 35

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
SAN v THE QUEEN
[2020] SASCFC 35
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Lovell)
8 May 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL ALLOWED
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTATION - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
Appeal against conviction and sentence for one count of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) (count 1) and making a communication, on Facebook Messenger, with the intention of making a child, SM, amenable to a sexual activity contrary to s 63B(3) of the CLCA (count 2 or the sexual communication offence).
SM met the appellant at a pool lounge, which she frequented with her family, when she was 13 years old. The appellant sent her a friend request on Facebook and started communicating with SM once she accepted the request at his prompting. The sexual communication offence concerned social media communications on 12 September 2016 engaged in by the appellant with SM. She was aged 16 years at the time of that offence.
The conduct the subject of count 1 occurred when she was 14 years old on an occasion when she returned home from school to find the appellant playing pool with her stepfather. She watched them play pool, during which the appellant touched her when her stepfather left the room.
The appellant appeals on the grounds that:
1. The Judge erred in failing to direct the jury that it could not convict if the appellant might have intended to make SM amenable to a sexual activity to occur when she was not a child.
2. Count 2 on the Information is duplicate.
3. The Judge erred in failing to direct in accordance with s 34CB(2) of the Evidence Act 1929 (SA).
4. The verdict in count 1 is unreasonable.
5. The verdict in count 2 is unreasonable.
Held per Kourakis CJ (Stanley and Lovell JJ agreeing), allowing the appeal on ground 1, and granting permission to appeal on grounds 3, 4 and 5, but dismissing the appeal on grounds 2, 3, 4 and 5:
1. It is an element of the sexual communication offence that the offender intended to make the child, who is the subject of the communication, amenable to engaging in sexual activity whilst still a child.
2. It is necessary to set aside the single sentence of three years’ imprisonment imposed with respect to both offences and to order a new trial on the sexual communication offence.
3. It is not necessary to consider the application for permission to appeal against sentence.
4. An…

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 San v The Queen

Details

AGLC: San v The Queen [2020] SASCFC 35
Case: [2020] SASCFC 35
Decision Date: 8 May 2020

CaseChat Overview and Summary

The appellant, San, appealed against his conviction for indecent assault and a sexual communication offence, as well as the sentence imposed. The complainant, SM, testified that the appellant indecently assaulted her in early 2015 when she was 13 years old, and that he had also engaged in sexual communication with her via Facebook. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Stanley and Lovell JJ.

The central legal issues before the court were whether the jury's verdict on the indecent assault charge was unreasonable or unsupported by the evidence, and whether there had been a misdirection or non-direction by the trial judge concerning the sexual communication offence. The appellant also contended that the only reasonable inference from the evidence regarding Facebook communications was that SM had altered them, which would undermine the prosecution's case.

The Full Court, in a joint judgment, considered the evidence presented, including SM's testimony about the indecent assault and the Facebook communications. The court found that even if the jury were satisfied that some messages were deleted, this could reasonably be attributed to embarrassment rather than an attempt to fabricate evidence. The court concluded that the remaining messages were capable of proving the sexual communication offence and circumstantially supporting SM's evidence regarding the indecent assault.

Consequently, the Full Court allowed the appeal against the conviction for the sexual communication offence, finding it necessary to set aside the sentence and order a new trial on that charge. However, the appeal against the conviction for indecent assault was dismissed. The application for permission to appeal against sentence was rendered unnecessary due to the order for a new trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant also seeks permission to appeal against the sentence of three years’ imprisonment with a non‑parole period of 18 months imposed by the Judge. However, it is unnecessary to consider that application for permission because I would order a new trial. The evidence SM testified that she was first introduced to the appellant at a pool lounge, which she frequented with her family, when she was 13 years old. The next day, SM saw that the appellant had sent her a friend request on Facebook. SM only accepted that request at the appellant’s prompting a week later when she again saw him at the pool lounge. The appellant started communicating with her on Facebook on the same day. SM continued to see him at the pool lounge. In September 2014, SM’s family moved to a house which had a pool‑room with access to a balcony. They obtained a pool table for the room in December 2014. SM testified that the occasion on which she was indecently assaulted was early in the first term of 2015. She had come home from school to find the appellant playing pool with her stepfather, SF. The appellant had visited to play pool once or twice before that occasion. SM testified that she was wearing her school sports uniform, a light blue navy shirt and dark navy basketball shorts. She was wearing a sports bra. SM watched her stepfather and the appellant play pool. They were drinking beer. SM gave the following evidence on the commission of the indecent assault:Q.So the next thing you’ve told us about is the accused trying to get your bra off and going up inside your bra. How long did that go on for.A.40 seconds to a minute.Q.Then what did he do.A.Then he got up and played another shot of pool.Q.After he had his shot what did he do.A.So he came and sat back down and [SF] played his shot and [SF] went to the toilet.Q.What happened then.A.He then put his left hand in – put it down my pants.Q.What part of your pants did he put it down.A.Down my pants and my underwear.…Q.So what part of his body was his hand in contact with.A.My bum.…Q.How was he moving [his hand].A.He tried to go deeper in, so deeper, like down my bum.…Q.What direction was he moving his hand in.A.Just down in between my legs.…Q.And how far down did his hands get.A.Maybe about halfway down my bum, because obviously I was sitting down and it couldn’t obviously go that far but yeah.…Q.Did he get to the point, at the point where your bottom was in contact with the chair.A.Yes. A. Did it go beyond that point.Q.No.…Q.Okay, thank you. How long was his hand doing that [squeezing] for.A.Just until [SF] got back from the bathroom, about minute.Q.What did he do next.A.He just got up and stood in front of me as [SF] was walking out.…Q. What did he do in that position.A. He put his hands on my face and he tried to put his fingers in my mouth.…Q. At the time he did that with his hand where was your stepfather.A. He just came out of the toilet, so he was walking around the pool table.Q.From the position that your stepfather came out from, was there a clear view to where you and the accused were.A. Yes.…A. He turned away. He put his fingers down because [SF] was in sight of us.…Q. What’s the next thing that happened.A. I then got up and I went downstairs.

Decision

Reasons for decision

The appellant contends that the only reasonable inference open was that SM had altered the evidence concerning the Messenger communications. For the reasons I have already given, I am not satisfied that that is the only reasonable inference. Even if the jury were satisfied that messages were deleted, the jury may nonetheless reasonably have decided that SM was motivated to do so by embarrassment and that the deleted messages could not have affected the inferences open on the messages appearing in the screenshots. The effect of the messages and, in particular, those sent by the appellant, are capable of proving the sexual communication offence and establishing a strong sexual interest in SM, which circumstantially supported her evidence on count 1.Conclusion I would allow the appeal against the conviction on count 2, the sexual communication offence. I would dismiss the appeal against the conviction of indecent assault. In those circumstances, it is necessary to set aside the single sentence of three years’ imprisonment imposed with respect to both offences and to order a new trial on the sexual communication offence. It is, therefore, not necessary to consider the application for permission to appeal against sentence because of my conclusion that there must be a new trial. STANLEY J: I would allow the appeal on ground 1 and dismiss the appeal on grounds 2, 3, 4 and 5. I would set aside the sentence imposed and order a new trial on ground 1. I agree with the reasons of Kourakis CJ. LOVELL J: I would allow the appeal on ground 1 and dismiss the appeal on grounds 2, 3, 4 and 5. I would set aside the sentence imposed and order a new trial on ground 1. I agree with the reasons of Kourakis CJ.

Ratio Decidendi

Legal Principle Established

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