DL v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Kiefel CJ,Keane,Edelman JJ.,Bell J.,Nettle J.
• Judgment Date: 20 June 2018
• Neutral Citation: [2018] HCA 26
• Docket Number: A38/2017
• Date: 20 June 2018

[2018] HCA 26

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Keane, Nettle AND Edelman JJ

A38/2017

DL

Appellant

and

The Queen

Respondent

Representation

M E Shaw QC with B J Doyle for the appellant (instructed by Town & Country Lawyers)

C D Bleby SC, Solicitor-General for the State of South Australia with B Lodge for the respondent (instructed by Director of Public Prosecutions (SA))

Criminal Law Consolidation Act 1935 (SA), s 50(1).

Criminal law — Trial by judge alone — Adequacy of reasons — Where appellant convicted of “[p]ersistent sexual exploitation of a child” — Where offence comprised of two or more acts of sexual exploitation separated by not less than three days — Where complainant alleged various acts of sexual exploitation over many years — Where alleged inconsistencies and implausibilities in complainant's evidence — Where trial judge regarded complainant as reliable witness as to “core allegations” — Whether trial judge's reasons inadequate because failed to identify two or more acts constituting offence — Whether trial judge's reasons inadequate because failed to explain process of reasoning.

Words and phrases — “adequacy of reasons”, “basis for decision”, “conflict between evidence”, “credibility”, “inadequacy of reasons”, “inconsistencies in evidence”, “process of reasoning”, “reasons”, “trial by judge alone”.

ORDER

Appeal dismissed.

Kiefel CJ, Keane AND Edelman JJ.

Introduction

1 The appellant was charged under s 50(1) of the Criminal Law Consolidation Act 1935 (SA) with one count of persistent sexual exploitation of a child. At the relevant time, that sub-section created an offence where an adult person, “over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age”. The appellant was tried by judge alone and convicted. He was sentenced to 10 years' imprisonment for “indecent assaults [upon the victim], acts of fellatio upon each other, the showing of pornographic magazines, masturbating in the victim's presence and causing the victim to masturbate”.

2 The appellant appealed to the Court of Criminal Appeal of the Supreme Court of South Australia. One ground of appeal to that Court was that the trial judge's reasons were inadequate. The Court of Criminal Appeal (Blue J, with whom Kourakis CJ and Bampton J agreed) held that the reasons were not inadequate. The appellant appeals to this Court from that conclusion. But he relies upon a different basis for the alleged inadequacy of the trial judge's reasons. The essential basis of his appeal raised an issue that overlapped with two other matters that were also given special leave to appeal 1. The issue in this appeal is whether the trial judge's reasons failed to identify, and to disclose the process of reasoning leading to his finding of, the two or more acts of sexual exploitation upon which the conviction was based. The appellant's submission that the trial judge's reasons were inadequate for this reason should not be accepted. For the reasons below, the appeal should be dismissed.

The particulars and the evidence

The particulars of the offence charged

The particulars and the evidence

3 The particulars of the offence charged in the information under s 50(1) of the Criminal Law Consolidation Act were that the appellant: (i) touched the complainant's genitals over the complainant's clothes; (ii) showed the complainant pornography; (iii) masturbated in the complainant's presence; (iv) encouraged the complainant to masturbate in his presence; (v) caused the complainant to perform fellatio upon him; and (vi) performed fellatio upon the complainant. The period during which the offence was alleged to have been committed began on 6 February 1984, when the appellant was 31 years old and

the complainant was five years old. It was alleged to have concluded on 1 September 1994, when the appellant was 41 years old and the complainant was 15 years old.

The prosecution case

4 At the time of the acts relied upon by the prosecution, the complainant was a child who lived with his parents and his brother and sister. The appellant was the complainant's uncle. Because of the work commitments of the complainant's parents, the complainant and his siblings, an older sister and a younger brother, occasionally stayed with the appellant's family at the appellant's house in Christies Beach. The appellant lived with his then wife and, initially, one daughter.

5 The prosecution case relied heavily upon evidence of the complainant although the prosecution also called the complainant's wife, his parents, his sister, his brother, and his aunt. The complainant's evidence was that the first occasion of a sexual assault by the appellant was when the complainant was “about five” years old, in the lounge room of the appellant's house. On that occasion, the appellant touched him on his genital area over his clothing while he and the appellant were playing with a slot car track.

6 The complainant gave evidence of other occasions when the appellant touched him on his genital area over his clothing. One occasion was at his grandmother's house on Christmas Day when he was “nine … or seven”, when the appellant gave him a remote control car. Other occasions of such touching occurred after he was “close to nine”, when the appellant would take him to a slot car venue called Red Line. The complainant said that during some of the journeys to Red Line, in the appellant's car, the appellant would touch the complainant on his genital area.

7 The complainant said that when he was “about seven” the appellant began to show him pornographic videos and magazines “of Asian content”. The appellant's ex-wife gave evidence that the appellant had been “quite persistent” that she watch pornographic videos with him and she recalled seeing a DVD or video of Asian pornography arrive at the house, about which she questioned him.

8 The complainant said that on three or four occasions he and the appellant masturbated after the appellant showed him what to do. He said that each time this occurred he was playing on a computer in the master bedroom at the appellant's house, although he accepted in cross-examination that the computer could have been subsequently in a different room.

9 The complainant gave evidence relating to two sheds at the appellant's house, described at trial as shed 1 and shed 2. The complainant said that when he was “past the age of nine, going on 12”, accepting that his age was “somewhere in that gap”, he and the appellant performed fellatio on each other in shed 2 at the appellant's house in Christies Beach. The complainant's evidence about the sheds at the appellant's house was that (i) the appellant grew marijuana hydroponically inside shed 1, which the appellant would give him to smoke nearly every time that he stayed from the age of nine, and (ii) the appellant built shed 2 and started growing the marijuana hydroponically in it when the complainant was around 12 years old.

10 The complainant described two other occasions when he and the appellant performed fellatio on each other. One occasion was when he was “over 12, 12 nearly”, in Cherry Gardens, where, as the appellant's ex-wife said in evidence, the appellant grew cannabis. The second occasion was when the complainant was “close to 12”, at a South Terrace unit leased by a woman with whom the appellant was in an extra-marital relationship.

11 In 1989, a second daughter was born to the appellant and his then wife. It was an agreed fact at trial that on 28 August 1994, when the appellant's second daughter was five years old and the complainant was 15, the complainant sexually assaulted her by putting his finger into her vagina. The complainant's evidence was that this occurred in shed 2 on the same day that he had performed fellatio on the appellant. He said that his act of fellatio was induced by being allowed to ride the appellant's motorbike, a privilege he said the appellant had permitted since he was “nine, ten, onwards”.

12 After the complainant's assault on the appellant's daughter, the complainant was no longer permitted to stay with the appellant's family, although the complainant did continue to visit. The Crown's case, and the complainant's evidence, was that the appellant's offending ceased after the assault on 28 August 1994.

13 The complainant said that the appellant told him that the appellant would use a gun on him and his family if he told anyone about the activities between them. Around 2003 or 2004, at the beginning of his relationship with his partner, later his wife, the complainant told her that he had been abused as a child, although he did not give her any details of the abuse. The evidence from the complainant's wife was consistent with this, although she said that the disclosure was in 2001 or 2002.

14 In 2007 or 2008, the appellant's daughter, assisted by the appellant, made a claim for compensation under the Victims of Crime Act 2001 (SA) for the indecent assault by the complainant. She received a payment of $50,000. The complainant was told of the claim by the Director of Public Prosecutions. He later learned that the appellant had encouraged his daughter to make the claim.

15 The complainant said that he had told his counsellor about being sexually abused as a child and that she had suggested that he do something about it, stand up for himself, and see what the appellant was doing. Around 2010, he went to see the appellant twice. On the first occasion they smoked marijuana and on the second occasion the complainant sold marijuana to the appellant. In 2011, the complainant made a complaint at the Christies Beach police station.

The appellant's evidence

16 The only witness called by the defence was the appellant. The appellant admitted many of the circumstances described...