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
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- Baptiste v The King [2023] SASCA 70
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- [2023] SASCA 70
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CaseChat Overview and Summary
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.
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