Simpson (a pseudonym) v The King

Case [2024] SASCA 37

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

SIMPSON (A PSEUDONYM) v THE KING

[2024] SASCA 37

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

28 March 2024

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

This is an appeal against conviction.

The appellant pleaded not guilty to two counts of gross indecency contrary to s 58(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) two counts of inciting or procuring a child to commit an indecent act contrary to s 63B(1)(a) of the CLCA, and one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the CLCA. The three complainants are sisters and were the stepdaughters of the appellant. Following a trial without a jury, the appellant was found guilty of one count of gross indecency (Count 1) and one count of inciting or procuring a child to commit an indecent act (Count 2). He was acquitted of the remaining counts (Counts 3, 4 and 5).

In relation to Count 1, it was alleged that between 31 December 2004 and 1 January 2006, the appellant committed an act of gross indecency in the presence of the first complainant, B, a person under the age of 16 years, by exposing his penis to her. In relation to Count 2, it was alleged that between 30 January 2005 and 1 January 2009, the appellant incited or procured the second complainant, S, a person under the age of 17 years, to commit an indecent act, namely touching his penis. The charges the subject of Counts 3, 4 and 5 were in relation to a third complainant, C.

The appellant now seeks permission to appeal against his convictions on the following grounds:

1.There was a miscarriage of justice occasioned by the trial Judge’s treatment of B’s evidence regarding the first occasion she spoke to S about the alleged sexual offending, (‘the hypothetical conversation’).  The appellant complained that the trial Judge erred by failing to take into account the evidence of the hypothetical conversation when assessing whether there was ‘inadvertent contamination’ between the accounts of B and S, and when assessing the credibility and reliability of B.

2.The trial Judge erred by using a finding that the appellant lied about having a positive relationship with the complainants, without more, to reject the appellant’s denials, and by providing inadequate reasons for rejecting the appellant’s denials. 

Held, per the Court, granting permission to…

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AGLC
Simpson (a pseudonym) v The King [2024] SASCA 37
Case
[2024] SASCA 37
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for maintaining a sexual relationship with a child and persistent sexual abuse of a child. The appellant, who did not give evidence at trial, was accused of exposing himself to his stepdaughter, B, and asking her to touch his penis. B testified that she told her sister, S, about the incident in a hypothetical manner, stating that if such an event had occurred, would S tell their mother. S denied discussing the appellant's alleged conduct with her sisters.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the trial judge erred in admitting evidence of the hypothetical conversation between B and S, and whether the trial judge failed to provide adequate reasons for admitting that evidence. The Court was required to determine if the admission of this evidence constituted a miscarriage of justice.

The Court reasoned that the hypothetical conversation, while not a direct disclosure, was admissible as it provided context for B's subsequent actions and her initial reluctance to report the incident. The Court found that the trial judge had properly considered the potential prejudice and probative value of the evidence, and that the reasons provided for its admission, though brief, were sufficient in the circumstances. The Court concluded that the admission of the evidence did not occasion a miscarriage of justice.

Permission to appeal was granted on both grounds, but the appeal was ultimately dismissed.

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 did not give or adduce any evidence. Summary of relevant evidence B, the eldest sister, was born on 24 June 1991, and S, the middle sister, was born on 23 September 1995. B was around 13 or 14 years old, and S was around 12 or 13 years old at the time of the alleged offending. When the complainants first met the appellant, they resided with their mother, MP at their grandmother’s house in Murray Bridge. In 2005, the complainants relocated with their mother and the appellant to a residence on Christian Road in Murray Bridge, where the offences allegedly took place. The allegations were confined to a single charged incident in respect of each complainant. In respect of Count 1, B gave evidence that she and the appellant were in the loungeroom watching television. The appellant, who was seated in his reclining chair and wearing only a dressing gown, began talking about male arousal, asking B if she knew what happens when a man gets ‘excited’. B gave evidence that the appellant then opened his dressing gown, exposing his erect penis, and asked B to touch it. B declined and left the room. She described feeling scared and uncomfortable. B recalled this incident as a ‘sexual education type thing’, although she acknowledged that the appellant had never previously engaged her in a discussion about sex. During cross-examination, B denied any suggestion that her account was false. Relevantly to the first ground of appeal, B’s evidence was that the first person to whom she spoke of the incident was her sister, S, shortly after the offending occurred (when she was around 13 or 14 years old). B said that the conversation was cast as a hypothetical. She said she ‘sort of proposed it to [S] as “if this happened would you tell mum?”’ (‘the hypothetical conversation’). In cross‑examination, B gave the following evidence: QNow I think you said that the first person you told about this was [S].AIn a hypothetical yes.QWhat did you actually say to [S].AI just said – explained what had happened ‘If he had asked me to touch his penis would you tell mum’ and she said ‘yes’ so I said ‘well it didn’t happen’, because I didn’t want her to tell them.QSo where were you when that conversation occurred. AAt our father’s house.QWhere were you living at the time.AChristian Road.QAnd you have a clear recollection of this conversation with your sister [S].AYes. There was some brief cross-examination on another topic before defence counsel returned to the conversation: QI’ll just go back to what you spoke to [S] about. So did you tell [S] precisely what happened. AJust a hypothetical.QBut hypothetically what happened. AYes.QWhat did you say to her. What were the words you used. AI’m pretty sure I said – I just said ‘If Phil had shown his penis to me and asked me to touch it would you tell mum’ and she said ‘yes’. I said ‘It didn’t happen’. Notably, S was not asked any specific questions about this conversation during her evidence-in-chief. S denied that she and her sisters discussed the appellant’s alleged sexual conduct with each other.

Decision

Reasons for decision

We grant permission but we dismiss this ground of appeal.Conclusion1. We grant permission to appeal on both grounds but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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