Davis v The King

Case [2022] SASCA 116

Supreme Court of South Australia

(Court of Appeal: Criminal)

DAVIS v THE KING

[2022] SASCA 116

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)

3 November 2022

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

Appeal against conviction.

The appellant was charged with two counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). The first count alleged that the appellant had penile-vaginal sexual intercourse with the complainant, a person under the age of 17 years. The prosecution case was that this occurred in a spa bath in a motel room at Glenelg. The second count also alleged that the appellant had penile-vaginal sexual intercourse with the complainant. The prosecution case was that this occurred immediately after the sexual intercourse in the spa bath, on a bed in the same motel room.

A jury unanimously found the appellant not guilty of the first count and guilty of the second count.

The issues raised on appeal, broadly described, are:

•whether there was a miscarriage of justice in that the trial judge failed to direct the jury properly as to the permissible and impermissible uses of the appellant’s alleged kissing or attempted kissing of the complainant (Ground 3.2);

•whether there was a miscarriage of justice in that the judge failed to direct the jury properly with respect to evidence that the complainant was distressed when she made complaints to her teacher and counsellor (Ground 4);

•whether there was a miscarriage of justice in that the judge failed to direct the jury properly with respect to the evidence of the appellant’s good character (Ground 5);

•whether the verdict of guilty on Count 2 was unreasonable as being inconsistent with the acquittal on Count 1 (Ground 6); and

•whether the verdict of guilty on Count 2 cannot be supported having regard to the evidence (Ground 7).

Held (by the Court), allowing the appeal on Ground 3.2 only, setting aside the conviction and remitting the matter for retrial:

1.Having particular regard to the character the prosecution ascribed to the kiss, the judge erred as a matter of law in at least failing to include the evidence of the kiss in the directions about uncharged acts.

2.The evidence of the kiss was of a different character from that of the other uncharged acts and required a clear direction on the use to be made of it as an uncharged act. The Court cannot be satisfied that the same verdict would have been returned had this error not occurred. This is not a case for…

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Davis v The King [2022] SASCA 116
Case
[2022] SASCA 116
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CaseChat Overview and Summary

The appeal concerned a conviction for unlawful sexual intercourse. The appellant, Davis, was accused of having penile-vaginal intercourse with the complainant, a 16-year-old with an intellectual disability, at a motel. The complainant's evidence described the appellant touching her in the spa, engaging in sexual intercourse, and her distress during the events. The prosecution's case included evidence of the appellant's alleged kissing of the complainant, which was presented as an indication of his intent.

The legal issues before the court were whether the trial judge had failed to properly direct the jury on the permissible and impermissible uses of the appellant's alleged kissing of the complainant, and whether the judge had adequately addressed the complainant's distress when making complaints. Further issues included whether the judge had properly directed the jury regarding evidence of the appellant's good character, and whether the verdict of guilty on one count was unreasonable or unsupported by the evidence, particularly in light of an acquittal on another count.

The Court of Appeal found that the trial judge had erred in failing to provide a clear direction to the jury regarding the use of the alleged kissing as an uncharged act, especially given its prominence in the prosecution's case as evidence of the appellant "testing the waters." The court was not satisfied that the same verdict would have been reached had this misdirection not occurred, and therefore declined to apply the proviso. The appeal was allowed on this ground, the conviction was set aside, and the matter was remitted for retrial. Permission to appeal was also granted on grounds relating to the complainant's distress, good character evidence, and the reasonableness of the verdict.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Amended Notice of Appeal against Conviction filed on 21 April 2022 raised several grounds and sub-grounds. On 26 April 2022, President Livesey granted permission to appeal on Grounds 1 and 4 and referred Grounds 2-5, 6 and 7 to this Court. The appellant then filed a Second Amended Notice of Appeal on 1 September 2022. That Notice of Appeal redesignated Ground 1 as a particular to Ground 6 and provided further particulars to Grounds 6 and 7. Grounds 2 and 3.1 of that Notice are no longer pressed. As a result, the issues now raised on appeal, broadly described, are:·whether there was a miscarriage of justice in that the trial judge failed to direct the jury properly as to the permissible and impermissible uses of the appellant’s alleged kissing or attempted kissing of the complainant (Ground 3.2);·whether there was a miscarriage of justice in that the judge failed to direct the jury properly with respect to evidence that the complainant was distressed when she made complaints to her teacher and counsellor (Ground 4); ·whether there was a miscarriage of justice in that the judge failed to direct the jury properly with respect to the evidence of the appellant’s good character (Ground 5);·whether the verdict of guilty on Count 2 was unreasonable as being inconsistent with the acquittal on Count 1 (Ground 6); and ·whether the verdict of guilty on Count 2 cannot be supported having regard to the evidence (Ground 7). The evidenceThe complainant’s evidence of unlawful sexual intercourse On 20 July 2019, the appellant, who was a friend of the complainant’s family, took the complainant to the Glenelg Motel to celebrate her sixteenth birthday. The complainant, who has an intellectual disability, was 16 years old. The appellant was 33 years old. The prosecution case was that whilst staying in a deluxe spa suite at the Glenelg Motel, the appellant had penile-vaginal intercourse with the complainant, twice. The complainant gave evidence in the form of a prescribed interview and by way of a pre-trial special hearing. The prescribed interview In the prescribed interview, the complainant said the appellant had come to see her for her birthday. She thought he was taking her to the movies, but they went to a hotel in Glenelg. The appellant took her to a room, which he booked for two people. The complainant noted a double bed there. The complainant said that she got into the spa. She was wearing bathers she had got from her suitcase. The appellant was also in the spa and kept moving his legs closer to her. She kept moving away. He moved his hands to her legs. He touched her shin. Then he moved his hands to touch her vagina. Then he started to ‘hump’ her, which she described as sex. He touched her vagina with his hands and moved his fingers in there. Then he pushed her down and went on top of her. She was crying because she was scared. She then described him moving up and down with his penis in her vagina. She got out of the spa and put her clothes on and rang her mum to go home.

Decision

Reasons for decision

That being said, the prosecution relied heavily on the kiss and, indeed, gave it prominence as evidence of the appellant ‘testing the waters’. The evidence of the kiss was of a different character from that of the other uncharged acts and required a clear direction on the use to be made of it as an uncharged act. We cannot be satisfied that the same verdict would have been returned had this error not occurred. We would not apply the proviso.Conclusion We grant permission to appeal on Grounds 3.2, 5, 6 and 7. We allow the appeal on Ground 3.2, set aside the conviction and remit the matter for retrial.

Ratio Decidendi

Legal Principle Established

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