MSP v The Queen

[2019] SASCFC 120

Supreme Court of South Australia

(Court of Criminal Appeal)

MSP v THE QUEEN

[2019] SASCFC 120

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Parker and The Honourable Auxiliary Justice David)

4 October 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF CROWN CASE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE

CRIMINAL LAW - EVIDENCE - OPINION EVIDENCE

Appeal against conviction.

Appellant submitted that trial Judge:

1. Erred in failing to direct jury that the delay in the complainant reporting the matter could not be taken into account as something that was capable of supporting the complainant’s credibility which was referred to in the Prosecution address;

2. Erred in failing to direct the jury to ignore inadmissible opinion evidence;

3. Erred in directing the jury in relation to evidence of the complaint;

4. Erred in failing to direct the jury that statements made by the complainant to a third party were not evidence of the truth of those statements;

5. Erred in failing to direct the jury that a statement by the complainant’s mother to a third party was not evidence as to the truth of that statement.

Held by David AJ (Kelly and Parker JJ agreeing) allowing the appeal and ordering a re-trial:

1. That the trial judge should have corrected the statements in the Prosecution address in her summing up;

2. That the opinion evidence was of no real consequence and there was no need to direct the jury on it;

3. That the directions in relation to evidence of the complaint did not amount to a miscarriage of justice;

4. That the trial Judge’s failure to direct the jury in respect of statements made by the complainant to a third party about what the appellant had stated were not evidence of the truth of those statements was an error which was so highly prejudicial to the appellant and has led to a miscarriage of justice.

Evidence Act 1929 (SA) s 34M, referred to.

MSP v THE QUEEN
[2019] SASCFC 120

Court of Criminal Appeal:   Kelly and Parker JJ, David AJ

1. KELLY J:             I agree that the appeal should be allowed and that the matter should be remitted for re-trial.  I agree generally with the reasons of David AJ. 

2. PARKER J:          I would allow the appeal.  I agree with the reasons of David AJ.

   DAVID AJ.

   Introduction

3. This is an appeal against conviction.  The appellant was convicted by verdicts of a jury of seven counts of unlawful sexual intercourse with a person above the age of 12 years and under the age of 17 years.  The offending all occurred between October 1999 and June 2002, against one female complainant, whom I will refer to as “C”.  The appellant appeals against all seven convictions. 

4. At the time of the offending, C was aged between 13 and 16 years. The…