Carr (a pseudonym) v The King

Case [2024] SASCA 69

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

CARR (A PSEUDONYM) v THE KING

[2024] SASCA 69

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Doyle)

30 May 2024

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - TESTS - WHETHER JURY WOULD HAVE RETURNED SAME VERDICT - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

This was an appeal against conviction on the sole ground that the trial judge had failed to direct the jury in accordance with s 34R(1) of the Evidence Act 1929 (SA).

Following a trial by jury, the appellant was convicted of one count of indecent assault, contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant of that indecent assault was the appellant’s biological granddaughter. During the course of her examination-in-chief, the complainant testified that, before the occurrence of the charged incident, there had been two other occasions on which the appellant had indecently assaulted her, each of which bore factual similarities to the charged incident. Counsel for the appellant at trial took no objection under s 34P of the Evidence Act to the admission of that evidence, and both the appellant and the Crown proceeded on the common basis that the trial was to be conducted as if an order for admission under that section had been made. Notwithstanding that common basis, the trial judge’s summing up to the jury contained only a passing reference to the complainant’s evidence of prior uncharged acts of indecent assault, and no direction under s 34R(1) of the Evidence Act as to the permissible and impermissible uses of that evidence.

On appeal, the appellant contended that the trial judge’s failure so to direct the jury had occasioned a miscarriage of justice that had deprived him of the chance of an acquittal. Conversely, while the respondent conceded that the failure to direct the jury in accordance with s 34R(1) of the Evidence Act had given rise to a miscarriage of justice, the respondent submitted that any such miscarriage was not substantial and that the proviso ought to be applied so as to confirm the appellant’s conviction.

Held (per Curiam), allowing the appeal, quashing the appellant’s conviction, and remitting the matter for a new trial:

1.Although a formal order had not been made admitting the complainant’s evidence of prior uncharged indecent assaults under s 34P of the Evidence Act, the parties had conducted the trial as if an order for admission had been made. In those circumstances, the trial judge erred in not giving a direction under s 34R(1) of the Evidence Act, and such error amounted to a miscarriage of justice.

2.As this was not a case in which the…

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Carr (a pseudonym) v The King [2024] SASCA 69
Case
[2024] SASCA 69
Decision Date

CaseChat Overview and Summary

The appeal before the Full Court of the Supreme Court of South Australia concerned Mr Carr, the appellant, who was convicted of indecent assault. The complainant testified about three occasions of indecent assault. Mr Carr did not object to the admission of evidence relating to the first two occasions and did not complain about its admission on appeal. The sole ground of appeal was that the trial judge failed to direct the jury in accordance with section 34R of the *Evidence Act 1929* (SA). The Director of Public Prosecutions conceded the failure to direct but contended that the proviso to section 34R should apply, arguing that no substantial miscarriage of justice had occurred.

The legal issue before the Full Court was whether the trial judge's failure to direct the jury on the permissible and impermissible uses of the evidence of the first two occasions constituted a miscarriage of justice. This required the Court to consider whether, despite the conceded misdirection, the jury would have inevitably returned the same verdict, or whether the error was so material that the conviction could not stand. The Court had to determine if the prejudicial effect of the evidence, if misused by the jury, outweighed its probative value in a way that undermined the fairness of the trial.

The Court accepted that the jury might have used the evidence of the first two occasions to enhance the credibility and reliability of the complainant's testimony. However, the Court found the conceded error of law to be material. The absence of directions mandated by section 34R meant the jury was not guided on how to properly use the probative substance of the earlier occasions or how to disregard their inherently prejudicial effect. The Court reasoned that such directions are crucial to ensure juries understand the permissible and impermissible uses of such evidence, particularly in cases involving serious offences, to prevent unfair prejudice against an accused who benefits from the presumption of innocence. Consequently, the Court could not be satisfied that the jury's verdict was not influenced by prejudicial reasoning and, therefore, could not be satisfied beyond reasonable doubt that the offence was proved. The appeal was allowed, the conviction was set aside, and a new trial was ordered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Carr did not object to the admission of the evidence of the first two occasions and does not complain of its admission on appeal. The single ground of appeal is that the Judge did not direct the jury in accordance with s 34R of the Evidence Act 1929 (SA) (Evidence Act). The Director concedes that the Judge failed to direct the jury as to the permissible and impermissible uses of the evidence of the first two occasions but contends that there has not been a substantial miscarriage of justice, that the proviso should be applied, and that the appeal should be dismissed.The Evidence C’s evidence-in-chief about the three occasions was brief:Q.I want to come to another topic. Did [the appellant] ever touch you in inappropriately (sic) when you were younger.A.Yes.Q.Did he touch you inappropriately more than once.A.Yes.Q.What do you remember about the first time [the appellant] touched you inappropriately.A.Not too much, just that it happened in the lounge room while we were watching TV.Q.This was in the lounge room of which house.A.Of the main house.…Q.Can you remember what happened when he touched you inappropriately.A.He - the first time I just remember he had his hands down my pants.Q.Do you remember what hand he was using.A.His left hand.…Q.And do you remember what happened after his hand was in your pants.A.Not really for the first time.Q.What about the second time that [the appellant] touched you inappropriately.…A.I can just remember him taking his hands out of my pants the second time.Q.Thank you, and where were you on that second time.A.In the same lounge room again.Q.Do you remember anything else about what you were doing on that second time.A.No.…Q.Do you remember what hand it was that he used on that second time.A.Left hand again.Q.Were there any other times that [the appellant] touched you inappropriately.A.Only once more that I can remember.Q.What happened on that - so that’s a third time that [the appellant] touched you.A.Correct.Q.What happened on that third time that [the appellant] touched you inappropriately.A.We were in the lounge room watching a greyhound race and I was sitting on his left and he put his arm around the back of me and put his hands in my pants. And then he touched me and when he finished he took his hand out, patted me on the hip and said ‘Good girl’.…Q.You’ve told us a bit of information there, I just want to ask you some more questions about that third time that [the appellant] touched you. Do you remember how old you were at the time.A.Not specifically, no.Q.Do you remember if you were in high school or primary school.A.Primary school.Q.Do you remember why you were at [the appellant’s] house on that third occasion.A.It was, I believe, Christmas.…A.He said ‘Good girl’.Q.What did - what, if anything, did you understand that to mean.A.I’m not sure, really, that it was meant to stay secret or something.Q.What happened after that.A.I can’t remember, I think we just continued to watch TV.

Decision

Reasons for decision

So, too, in this case, it must be accepted that the jury might have reasoned that evidence of the first two occasions enhanced the credibility and reliability of the complainant’s testimony.Conclusion The error of law conceded by the Director is a material one. The failure to give the directions mandated by s 34R of the Evidence Act left the jury without any directions, having the authority of the Judge, on how to permissibly use the probative substance of the evidence of the first two occasions, and on how to put aside its inherently prejudicial effect. The materiality of that error may best be explained in the following way. The purpose of such a direction is, primarily, to ensure that the jury is apprised of both the permissible and impermissible uses of such evidence, and that it does not misuse such evidence, particularly in cases where the crime charged attracts fervid opprobrium, in a way that is unfair to those to whom the presumption of innocence applies. The jury’s acceptance of the complainant’s evidence, and its verdict, may have been influenced by prejudicial and unsound reasoning. This Court cannot, therefore, rely on the jury’s verdict. Without it, this Court cannot be satisfied on the face of the transcript alone that the offence was proved beyond reasonable doubt. The appeal must be allowed, the conviction set aside, and a new trial ordered.

Ratio Decidendi

Legal Principle Established

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