Baptiste v The King

Case [2023] SASCA 70

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

BAPTISTE v THE KING

[2023] SASCA 70

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Auxiliary Justice Dalton)

29 June 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

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

Appeal against conviction.

On 22 November 2022, a jury convicted the appellant of one count of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant was, at all relevant times,14 years old. The appellant was the complainant’s stepfather.

Towards the end of 2020, the complainant told her best friend at school, HC, about the offending. That conversation was repeated to other school friends. One of the other friends told their mother what had been said, who reported the allegation to the school principal on 8 February 2021. On the same day, the school principal made a mandatory report to the authorities.

The first trial commenced in the District Court on 7 June 2022. The jury was unable to deliver a verdict and was discharged. At the second trial, the complainant’s evidence consisted of the record of a prescribed interview that had been conducted on 10 February 2021, the complainant’s recorded evidence at the first trial and further limited cross-examination.

The applicant now appeals against the conviction on the second trial, on the grounds that:

1.The trial judge erred in failing to allow the appellant to cross-examine the complainant with respect to certain social media material (Ground 3);

2.The trial judge erred in failing to direct the jury in the mandatory terms described by s34M(4)(c) of the Evidence Act 1929 (SA) (Ground 4a);

3.The trial judge erred in directing the jury by describing discreditable conduct evidence as evidence of uncharged acts (Ground 5); and

4.A miscarriage of justice occurred by reason of the judge failing to give adequate directions on the complainant’s motive to lie (Ground 6).

Held (by the Court) allowing the appeal on Ground 6, quashing the conviction, and remitting the matter for re-trial:

1.There is no reason to think that the failure to give the direction required by s 34M(4)(c) of the Evidence Act 1929 (SA) could have interfered with the jury’s assessment of the complaint evidence to the detriment of the appellant. No substantial miscarriage of justice has actually occurred in respect of this failure.

2.The failure to give an explicit direction against impermissible reasoning, with respect to the absence of any motive for the complainant to lie, caused a miscarriage of justice. It is not appropriate to apply the proviso in respect of this failure.

3.      It is not necessary to determine the remaining grounds of appeal.

Evidence Act 1929

Continue reading Baptiste v The King

Sign in free to access the full text

Details
AGLC
Baptiste v The King [2023] SASCA 70
Case
[2023] SASCA 70
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, the stepfather of the complainant, was alleged to have engaged in various sexual acts with the complainant, who was 14 years old at the time of the offending. The complainant reported the abuse to a friend, who in turn reported it to the school principal, leading to a mandatory report to the authorities. The appellant appealed his conviction from the District Court of South Australia.

The primary legal issue before the Full Court of the Supreme Court of South Australia was whether the trial judge’s failure to give a specific direction to the jury, as required by section 34M(4)(c) of the *Evidence Act 1929* (SA), constituted a substantial miscarriage of justice. This section mandates that a judge must direct the jury that there may be varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person, and that otherwise, the significance of the complaint is a matter for the jury. The respondent conceded that the judge had failed to give this direction.

The Court found that the trial judge’s directions on the evidence of complaint, while covering some aspects of section 34M(4), omitted the crucial direction required by subsection (4)(c). The judge's summation focused on the consistency of the complaint with the alleged conduct and its role in explaining how the allegations came to light, but did not explicitly inform the jury that there could be various reasons for the timing or recipient of the complaint, and that its significance was otherwise for them to determine. Despite the respondent's submission that this omission did not result in a substantial miscarriage of justice, the Court concluded that the failure to provide the required direction was an error of law.

The Court allowed the appeal on this ground, quashed the conviction, and remitted the matter for retrial. The Court noted that it was strictly unnecessary to consider other grounds of appeal, but addressed one further ground in light of recent case law and the submissions made.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons which follow, we would allow the appeal on Ground 6 and remit the matter for retrial. It is strictly unnecessary to consider the balance of the grounds. However, having regard to this Court’s recent decision in Kakule v The King[1] and the submissions made by the parties in respect of that judgment, it is appropriate also to address Ground 4a.[1] [2023] SASCA 51.Background The appellant is the stepfather of the complainant. In about April 2012, the appellant and the complainant’s mother commenced a relationship. They married in February 2014. In February 2019, the appellant, the complainant’s mother, the complainant and her two sisters moved to a residential property in regional South Australia. The prosecution case was that the alleged offending commenced in the second school term of 2020, in the following circumstances. The complainant, who was 14 years old, was home from school, sick. The appellant and the complainant were lying together on the couch while watching a movie. The appellant put his hands under the complainant’s clothing and touched her breasts and her vagina. The appellant then inserted his finger into the complainant’s vagina. The prosecution case was that after this first incident, similar incidents of touching occurred frequently, on a number of occasions. On one occasion, not long after the first incident, and again when the complainant was home from school sick, the complainant went to the appellant’s bedroom to say good morning after being told to do so by her mother. The appellant grabbed the complainant’s hands and said that her hands were cold. The appellant placed the complainant’s hands near his erect penis, over his underwear. On a further occasion, the complainant woke in her bed to find the appellant lying behind her. The appellant was breathing and kissing her down her neck. The complainant’s evidence was that she recalled two specific incidences of this nature but that it had also occurred on other occasions. One of the last incidents the subject of complaint was said to have occurred when the complainant and appellant were watching television. They were alone. The other family members were in bed. The appellant pulled the complainant’s pyjama shorts loose, moved her underwear to one side and put his mouth on her vagina. The offending was alleged to have occurred between 23 March 2020 and 8 February 2021. The complainant was 14 years old throughout this period. Towards the end of 2020, the complainant told her best friend at school, HC, about the offending. That conversation was repeated to other school friends. One of the other friends told their mother what had been said. The mother reported the allegation to the school principal on 8 February 2021. On the same day, the school principal made a mandatory report to the authorities. The first trial commenced in the District Court on 7 June 2022. The jury was unable to deliver a verdict and was discharged. The complainant’s evidence at the first trial was recorded. At the second trial, from which this appeal is brought, the complainant’s evidence consisted of the record of a prescribed interview that had been conducted on 10 February 2021, the complainant’s recorded evidence at the first trial and further limited cross-examination.Failure to give a direction in accordance with s 32M(4)(c) of the Evidence Act 1929 (SA) (Ground 4a)

Evidence

Evidence Before The Court

Subsections 34M(4) and (5) provide as follows: 34M—Evidence relating to complaint in sexual cases…(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—(a) it is admitted—(i) to inform the jury as to how the allegation first came to light; and(ii)as evidence of the degree of consistency of conduct of the alleged victim; and(b) it is not admitted as evidence of the truth of what was alleged; and(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4). The judge in summing up gave directions on initial complaint as follows:[2]Ladies and gentlemen, I now give you direction on what we call evidence of complaint. You have heard the evidence of [the complainant] that she told her friend [HC] something of what she said her stepfather was doing to her, and you have heard evidence from [HC] herself. The complainant said that she told [HC] that the accused had been fingering her. [HC] said that the complainant asked her if it was normal for her stepdad to be fingering her and touching her in that way, and she said it was not.I direct you now on how you approach the evidence of complaint. There are several reasons why the evidence of complaint is given. The first is to tell you how the allegations first came to light; that gives you a fuller picture of the account of the complainant. The second is so that you can judge whether the complaint that is made is consistent with the conduct that you have heard about in court. Third, the evidence of complaint is not before you to demonstrate the truth of what was complained about; you rely on the evidence that you've heard in court, about the allegations, to see if you are satisfied that they occurred.Instead, the evidence of complaint is led, so that you can judge the consistency between the complaint that was made and the conduct that is alleged in court. Does the manner of making the complaint seem consistent with what the complainant says the accused was doing to her? Are the terms of the complaint consistent with what she says the accused was doing to her? It is a matter for you, to make what you will of the evidence of complaint with those directions in mind.[2] Appeal Book at [37]-[38]. It can be immediately seen that the judge did not direct the jury in the terms required by s 34M(4)(c). Indeed, the respondent conceded that the judge failed to give that direction and that this failure amounted to an error of law. The respondent submitted, however, that this failure was not one that has resulted in a substantial miscarriage of justice. This was particularly so in the circumstances of this case, where there was no forensic contest over the reasons why the complainant made the complaint to HC, when she did.

Decision

Reasons for decision

The interrelationship between s 13BA(5) and s 13D is potentially complex. Where evidence has been admitted under both sections, an application to cross‑examine may require resolution not only of the relationship between the two sections, but also careful consideration of the scope and purpose of the proposed cross-examination. In the present matter, it is not clear which of these sections the judge proceeded upon. Counsel for the appellant did not convince us that the view the judge took of the video’s relevance was incorrect or suggest any meaningful line of cross-examination about the video. In those circumstances it is not necessary to determine this ground of appeal.Conclusion We would allow the appeal on Ground 6, quash the conviction and remit the matter for retrial.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.