San v The Queen

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.