Police v A, Mr - [2008] SASC 255

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v A, MR
[2008] SASC 255
Judgment of The Honourable Justice Gray
19 September 2008
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - ADMISSIBILITY - GENERALLY
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - RELEVANCE - SEXUAL OFFENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL - GENERALLY
Appeal against severance order and direction as to separate trials – defendant (respondent) charged with five counts of indecent assault against different complainants contrary to section 56, Criminal Law Consolidation Act 1935 (SA) – complainants all teenage girls associated with defendant’s family – indecent assaults all involved touching of complainant’s breasts or genital region over or through clothing – at hearing before magistrate, defence application for counts to be severed and heard separately was allowed – appeal to Supreme Court pursuant to section 42(1a), Magistrates Court Act 1991 (SA) – whether evidence on any one count cross-admissible between other counts – whether real possibility of concoction of evidence – consideration of principles concerning admissibility of similar fact evidence.
Held: appeal allowed – there is sufficient similarity to demonstrate the relevance and cross-admissibility of evidence of each complainant in regard to all other counts – no real possibility of concoction established – magistrate’s severance order and direction as to separate trials was erroneous and should be set aside – complaint remitted for trial to Magistrates Court.
Criminal Law Consolidation Act 1935 (SA) s 56; Magistrates Court Act 1991 (SA) s 42(1a); Summary Procedure Act 1921 (SA) s 103(2) and s 103(3), referred to.
Phillips v The Queen (2006) 225 CLR 303; Hoch v The Queen (1988) 165 CLR 292; Handy [2002] 59 SCR 908; Sutton v The Queen (1983) 152 CLR 528; Martin v Osborne (1936) 55 CLR 367; Pfennig v The Queen (1995) 182 CLR 461; HML v The Queen (2008) 245 ALR 204; Boardman [1975] AC 421; R v H [1995] 2 AC 596, considered.

POLICE v A, MR
[2008] SASC 255
Magistrates Appeal
GRAY J

This is a prosecution appeal against an order made by a Magistrate severing counts on an information, and directing that there be a separate trial on each count.
The defendant, A, MR was charged on information[1] with five counts of indecent assault, contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA).[2] The offences are alleged to have occurred between January 1980 and September 1985, and the ages of the alleged victims at the time of the commission of the offences vary between about 13 years and 21 years.
[1] The information provides:
“1.Between the 1^st day of January, 1980 and the 31^st day of May, 1980 at Beaumont in the said State indecently assaulted EA, a person of the age of 15 years.
Section 56 of the Criminal Law Consolidation Act, 1935
This is a minor indictable offence.
2.Between the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v A, Mr

Details

AGLC: Police v A, Mr [2008] SASC 255
Case: [2008] SASC 255
Decision Date: 19 September 2008

CaseChat Overview and Summary

In this case, the defendant, A, Mr, appealed against a severance order and direction as to separate trials, issued by a magistrate in relation to five counts of indecent assault against different complainants. The appeals were heard by the Supreme Court of South Australia, where the court was required to decide whether the evidence on any one count was cross-admissible between other counts and whether there was a real possibility of concoction of evidence. The magistrate had allowed the defence application for counts to be severed and heard separately.

The court considered the principles concerning the admissibility of similar fact evidence and concluded that there was sufficient similarity to demonstrate the relevance and cross-admissibility of evidence of each complainant in regard to all other counts. The court found that no real possibility of concoction was established, and therefore, the magistrate's severance order and direction as to separate trials was erroneous and should be set aside. The appeal was allowed, and the complaint was remitted for trial to the Magistrates Court.

The court's reasoning was based on the assumption that the evidence was true, and at the early stage of the trial, it was necessary to consider the cross-admissibility of the evidence. The court concluded that if the complainants did not come up to proof or other facts arose later in the trial, the magistrate would be able to disregard the inadmissible evidence when determining the verdict on any particular count. The trial could proceed as a joint trial without any undue prejudice to the defendant.

The final orders of the court were that the appeal was allowed, the magistrate's order of separate trials was set aside, and the complaint was remitted for trial to the Magistrates Court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The defendant, A, MR was charged on information[1] with five counts of indecent assault, contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA).[2] The offences are alleged to have occurred between January 1980 and September 1985, and the ages of the alleged victims at the time of the commission of the offences vary between about 13 years and 21 years.[1] The information provides:“1.Between the 1st day of January, 1980 and the 31st day of May, 1980 at Beaumont in the said State indecently assaulted EA, a person of the age of 15 years.Section 56 of the Criminal Law Consolidation Act, 1935This is a minor indictable offence.2.Between the 12th day of April, 1980 and the 31st day of December, 1980 at Beaumont in the said State indecently assaulted TM, a person of the age of 17 years.Section 56 of the Criminal Law Consolidation Act, 1935This is a minor indictable offence.3.Between the 1st day of March, 1982 and the 16th day of August, 1982 at Beaumont in the said State indecently assaulted VC, a person of the age of 17 years.Section 56 of the Criminal Law Consolidation Act, 1935This is a minor indictable offence.4.Between the 1st day of January, 1984 and the 31st day of December, 1984 at Glenelg in the said State indecently assaulted DW, a person of the age of 13 or 14 years.Section 56 of the Criminal Law Consolidation Act, 1935This is a minor indictable offence.5.On the 20th day of September, 1985 at Tusmore in the said State indecently assaulted KC, a person of the age of 21 years.Section 56 of the Criminal Law Consolidation Act, 1935This is a minor indictable offence.”[2] Section 56 of the Criminal Law Consolidation Act 1935 (SA) provides:“(1)A person who indecently assaults another is guilty of an offence. Maximum penalty: (a) for a basic offence—imprisonment for 8 years; (b) for an aggravated offence—imprisonment for 10 years. (2)If the victim of the offence was at the time of the offence under the age of 14 years, the offence is an aggravated offence and it is unnecessary for the prosecution to establish that the defendant knew of, or was reckless as to, the aggravating factor.”The Prosecution Evidence Before coming to discuss the substance of the appeal, it is appropriate to summarise the proposed prosecution evidence. In doing so, I draw on the prosecutor’s opening. Neither party on appeal sought to place any further material before the Court. The first count related to EA, a friend of the defendant’s daughter. EA would often stay over at the defendant’s home. It was alleged that when EA was aged about 15 years, in or around January to May 1980, in the course of the day, she was in the dining room of the defendant’s home. The defendant came up behind her, placed his left arm over her left shoulder and around her front. He grabbed her right breast over her clothing. His hand then moved down the side of her body, and he grabbed her groin, rubbing her around the vaginal area. At the same time, the defendant was thrusting his groin into the small of EA’s back and rubbing himself into her. She managed to twist herself out of his grip, and left the room.

Decision

Reasons for decision

It may be that in the course of a joint trial, the cross-examination of the prosecution witnesses may allow a conclusion that there is a real possibility of concoction. In that event, not only would the evidence of the complainants not be cross-admissible, but if that real possibility was not disproved by the prosecution, all complaints would be dismissed. At the present time, however, as earlier observed, the material available does not establish a real possibility of concoction.Conclusion As earlier observed, the challenge to cross-admissibility arose at a very early stage in the trial, and on the basis of a brief prosecution opening of the evidence. No depositions were tendered. No voir dire was conducted. At this point of the trial, the truth of the evidence sought to be tendered was to be assumed. As I have observed above, in my view the evidence, accepting its truth, was cross-admissible, and accordingly it follows that there was no occasion for the order of separate trials. It follows that the order of the Magistrate should be set aside. Later in the trial if the complainants do not relevantly come up to proof, or other facts arise, then it may transpire that some or all of the evidence will not be cross-admissible with respect to other counts. In that event the Magistrate will be able to have no regard to that evidence when determining the verdict on any particular count. A similar course would be followed in the event of there being a reasonable possibility of concoction arising. In this way the trial can proceed as a joint trial without any undue prejudice to the defendant. This appeal is allowed. The order of the Magistrate directing separate trials is set aside. The complaint is remitted for trial to the Magistrates Court.

Ratio Decidendi

Legal Principle Established

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