WJG v The Queen - [2020] SASCFC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
WJG v THE QUEEN
[2020] SASCFC 56
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Bleby)
19 June 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE - OTHER PARTICULAR CASES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Appeal against convictions of Unlawful Sexual Intercourse (USI) and Indecent Assault, pursuant to ss 49(3) and 56 respectively of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
The trial Judge found the appellant not guilty in relation to one count of Indecent Assault (Count 1), but guilty of one count of USI with a person under the age of 17 years (Count 2) and one count of Indecent Assault (Count 3). The appellant was sentenced to five years and six months’ imprisonment with a non-parole period of four years, four months and 25 days.
Count 2 concerned allegations that on an occasion when the complainant, JH, went to stay with the appellant in Port Augusta, she went with him in his truck on an overnight trip to Adelaide. During the trip to Adelaide with JH, the accused had sexual intercourse with JH in the back of the truck. The trial Judge found that the offending in relation to Count 2 ‘must have occurred between 9 October 1976 and November 1977.’
Count 3 related to a 1991 statement by JH’s cousin, AH, that the appellant had sexually assaulted her in JH’s presence. At trial, AH’s evidence was that the vehicle was a green Valiant with number plates GOD-001. The trial Judge found beyond reasonable doubt that the incident occurred between July 1977 and November 1977.
The grounds of appeal are as follows:
1. By virtue of the particulars of Count 2 being offending that occurred between 9 October 1976 and 22 January 1980, the appellant was denied a trial according to law and the convictions constitute a miscarriage of justice in that;
a) Section 49(3) of the CLCA requires that the complainant be under the age of 17 and of or above the age of 12. The complainant was not above the age of 12 until January 1977.
b) Section 49 of the CLCA only came into operation on 9 December 1976. Offending between 9 October 1976 and 9 December 1976 would be prior to the promulgation of s49.
2. In relation to Count 2, Her Honour erred in determining that the changes in the recollection of JH regarding the description of the truck and her position in the cabin should not cause the court to doubt the reliability and credibility of her evidence.
3. In relation to Count 3, Her Honour erred…

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 WJG v The Queen

Details

AGLC: WJG v The Queen [2020] SASCFC 56
Case: [2020] SASCFC 56
Decision Date: 19 June 2020

CaseChat Overview and Summary

The appellant, WJG, appealed to the Full Court of the Supreme Court of South Australia against his conviction for sexual offences. The charges arose from allegations made by AH and JH, who were related to the appellant. The appeal was initially against both conviction and sentence, but the appellant later abandoned the appeal against sentence. The primary dispute concerned the trial judge's findings of fact and the sufficiency of evidence to establish guilt beyond reasonable doubt for two counts of sexual offending.

The legal issues before the Full Court included whether the trial judge erred in finding the appellant guilty of sexual intercourse with JH (Count 2) given alleged inconsistencies in JH's evidence, and whether the trial judge was correct in treating the appellant's evidence regarding Count 3 as a denial of the offending. Specifically, the court had to determine if the trial judge was satisfied beyond reasonable doubt that the sexual intercourse occurred as alleged and whether the appellant's admissions and denials concerning the incident involving AH and JH were properly assessed.

The Full Court considered the trial judge's assessment of JH's reliability and credibility in relation to Count 2. Despite acknowledging some discrepancies in JH's account, the trial judge found her evidence regarding the trip to Adelaide and the subsequent sexual intercourse to be credible and accepted it as proof beyond reasonable doubt. The court noted that the trial judge had carefully considered the appellant's defence and rejected his version of events. Regarding Count 3, the court observed that the trial judge treated the appellant's statement, "It may be possible, but I don’t recall it," in response to allegations of touching AH and JH on their breasts in a vehicle, as a denial of the offending, which the Full Court found to be an appropriate approach given the context.

The Full Court dismissed the appeal against conviction.

Orders

Orders of the court

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Background

Background to the litigation

On 5 November 2019, the appellant was sentenced to five years and six months’ imprisonment with a non-parole period of four years, four months and 25 days. The appellant initially appealed against both the conviction and the sentence. On 8 May 2020, counsel for the appellant advised the Court that the appellant would not be proceeding with the appeal against sentence.Background JH was born on 22 January 1965. JH’s cousin and CCB’s daughter, AH, was born on 20 August 1968. In about September 1975, CCB commenced a relationship with the appellant. As a young child, JH and her family moved frequently, such that she lived in many different locations and houses and attended many different schools. On 9 October 1976, CCB gave birth to a daughter, HH, fathered by the appellant. At that time, the appellant was living with CCB and AH in Port Augusta, while JH lived in Port Pirie. On 9 August 1991, AH gave a statement to police. She claimed that in 1983, the appellant had sexually assaulted her at Mount Laura in JH’s presence. The accused was subsequently arrested for offending arising from AH’s allegations and entered guilty pleas to the charges.Count 2 The allegations supporting Count 2 were, essentially, that on an occasion when JH went to stay with the appellant in Port Augusta, she went with him in his truck on an overnight trip to Adelaide. The appellant had a job driving trucks and would drive overnight from Port Augusta to Adelaide for the purpose of collecting stock. CCB was working at night; JH travelled with the appellant so that she would not be left alone. During the trip to Adelaide with JH, the accused had sexual intercourse with JH in the back of the truck. The trial Judge found that the offending in relation to Count 2 ‘must have occurred between 9 October 1976 and November 1977.’[1][1] R v G, WJ [2019] SADC 131 at 44, [276]. At trial, counsel for the appellant submitted that the trial Judge could not be satisfied of JH’s reliability and credibility due to differences between her evidence and the account that she had previously given to the police. These inconsistences related to the truck’s description and whether she was sitting up or had been asleep when the incident started. The trial Judge accepted JH’s evidence that she went on a trip to Adelaide with the appellant in his truck and was staying with the appellant and CCB at the time, which was after HH was born. Her Honour rejected the appellant’s evidence that there had been no such trip.[2] Further, her Honour was satisfied beyond reasonable doubt that the appellant had sexual intercourse with JH by inserting his penis into her vagina, which occurred between 9 October 1976 and November 1977.[3][2] R v G, WJ [2019] SADC 131 at 46, [293].[3] R v G, WJ [2019] SADC 131 at 47, [298]-[300].Count 3 Count 3 related to AH’s claim that in 1983, the appellant had sexually assaulted her at Mount Laura in JH’s presence. On the evidence of both AH and JH, this incident occurred in a vehicle, with AH in the front bench seat. On JH’s evidence, JH was sitting in the back seat, where the appellant touched her breasts. The appellant admitted masturbating in front of AH while in a vehicle. He gave evidence as to having memory problems. He said that he did not recall an incident when he masturbated in the presence of both AH and JH and touched them both on the breasts, in that ‘It may be possible, but I don’t recall it’.[4] Given the other issues raised in respect of this count, the trial Judge appropriately, with respect, treated this as a denial of the offending.[5][4] R v G, WJ [2019] SADC 131 at 33, [186].[5] R v G, WJ [2019] SADC 131 at 50, [333].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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