R v AGIUS - [2007] SASC 412

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v AGIUS
[2007] SASC 412
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)
23 November 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - JOINT TRIAL OF SEVERAL COUNTS
Appeal against conviction - appellant charged with multiple counts of rape arising from separate incidents involving five different women - counts with respect to one complainant not pursued - fresh information filed charging eight counts involving the four remaining complainants - joint trial of all eight counts - appellant convicted by jury verdict of six counts and acquitted of two - whether trial Judge should have severed the counts referrable to each complainant from the counts with respect to the other complainants - whether the evidence of each complainant was only admissible on the counts relating to that particular complainant.
Held, dismissing the appeal, by majority: at the time of the pre-trial ruling the rejection of the application for separate trials was an order well within the Judge’s discretion - at the time of summing up, notwithstanding the narrowing of issues, the evidence remained cross-admissible - the Judge’s directions were adequate in the circumstances.
By minority: having regard to the issues in the trial, the joint trial did not result in a miscarriage of justice - not necessary to consider the question of the correctness of the trial Judge's decision in the circumstances applying at the time when it was made - the Judge's directions were inadequate but no substantial miscarriage of justice has resulted.
Criminal Law Consolidation Act 1935 (SA) s 278, s 353, referred to.
R v Collie, Kranz and Lovegrove (1991) 56 SASR 302; R v Smith (1998) 71 SASR 543, applied.
Sutton v The Queen (1984) 152 CLR 528; Perry v The Queen (1982) 150 CLR 580; Hoch v The Queen (1988) 165 CLR 292; Phillips v The Queen (2006) 225 CLR 303; Pfennig v The Queen (1994) 182 CLR 461; De Jesus v R (1986) 61 ALJR 1; R v Liddy (2002) 81 SASR 22; R v Verma (1987) 30 A Crim R 441; R v El-Hayek (2004) 144 A Crim R 90; Weiss v The Queen (2005) 224 CLR 300, considered.

R v AGIUS
[2007] SASC 412
Court of Criminal Appeal: Gray, Sulan and White JJ
GRAY AND SULAN JJ:

This is an appeal against conviction.
Introduction
The appellant was charged with multiple counts of rape arising from separate incidents involving five different women. The information alleged two acts of rape by the appellant against each of the five complainants. After the appellant was arraigned in the District Court, he applied for severance of the counts in relation to each complainant. The trial Judge refused the application.
After the trial Judge determined…

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 R v AGIUS

Details

AGLC: R v AGIUS [2007] SASC 412
Case: [2007] SASC 412
Decision Date: 23 November 2007

CaseChat Overview and Summary

In the case of R v AGIUS, the appellant was convicted by a jury verdict of six counts of rape involving four different complainants, with the jury acquitting him of two counts. The appellant appealed against his convictions, arguing that the trial judge should have ordered separate trials for each set of charges and that the judge's directions to the jury concerning the admissibility of evidence from each complainant were inadequate. The appeal was heard in the Supreme Court of South Australia. The central legal issues were whether the trial judge's decision to reject the appellant's application for separate trials was within the judge's discretion, and whether the judge's directions to the jury about the use of each complainant's evidence were adequate.

The court found that the trial judge's decision to reject the application for separate trials was within the judge's discretion at the time it was made. The court noted that the evidence from each complainant was cross-admissible, meaning it could be used to support the prosecution's case on all counts, even though it was specific to certain incidents. The court also determined that the judge's directions to the jury were adequate, as the jury was correctly instructed to consider each count separately on the evidence relevant to that particular count. The court concluded that the joint trial did not result in a miscarriage of justice and that the judge's directions, despite some minor issues, were sufficient to ensure a fair trial.

In conclusion, the appeal was dismissed. The court held that the trial judge's decision to proceed with a joint trial was appropriate and that the judge's directions to the jury were adequate in the circumstances. The appellant's convictions were therefore upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Following the arrest of the appellant, MB was shown a photograph array of a number of persons including the appellant. She did not identify the appellant’s photograph.The Appellant’s Evidence The appellant was 35 at trial. His evidence was that he had picked up MH in Hindley Street on 26 December 2003. MH had attracted his attention. They struck up a conversation in which she said she was “a working girl” and offered “thirty bucks for head and $60 for sex”. He then drove to War Memorial Drive in the Parklands and parked near some tennis courts. He gave MH $60 and they had consensual vaginal intercourse in the back seat of his car. He did not use a condom because MH said “you don’t need one, just don’t come in me”. There was no act of fellatio or other sexual intercourse. At the end he used tissues to clean himself. He then dropped MH off, at her request, at the end of Rundle Mall in the city. In relation to AI, the appellant said that as he was moving his car away from a parked position in Hindley Street he was stopped by AI. She told him that she was “working” and told him it was $30 for “head” and $60 or $70 for “sex”. He told her to hop into the car. She asked him if he was an “undercover cop”. He then drove, at AI’s direction, to River Street, Hindmarsh and pulled over at a place which she indicated. He gave her $60. AI then suggested they get into the back seat, took her clothes off and suggested he use a condom. They then had consensual vaginal intercourse but not fellatio. No other sexual activity took place. AI then cleaned herself with a tissue which she took from her own bag. At AI’s request he then dropped her off near the Queen Elizabeth Hospital at Woodville. The appellant denied any contact with MB at all. In relation to KG, the appellant said that his car was stationary in a line of traffic in Hindley Street in the early hours of 14 November 2004. He was approached by KG who asked him if he was looking for a girl. When he said yes, she got into the car and told him the prices (the same prices as had been given to him on the earlier occasions by the other complainants). At KG’s direction, he drove to a dead end road off South Terrace. They both got into the back seat and, after he had paid her the money, had consensual vaginal intercourse. He then drove KG, at her request, to the KFC outlet on Glen Osmond Road and dropped her off.Did a Miscarriage of Justice Result from the Joint Trials? As noted earlier, it was common ground that separate trials should have been ordered if the evidence on each count was not admissible on the others. Relevant Principles as to Cross-admissibility Evidence which is directly and logically linked to the issues and has a specific connection with the commission of the crime charged may be admissible if it lends a high degree of cogency to the prosecution case, notwithstanding that it also discloses criminal conduct on the part of the accused. In Pfennig v The Queen[24] the majority judgment of Mason CJ, Deane and Dawson JJ indicated that similar fact evidence is admissible if there is no reasonable view of the evidence consistent with the innocence of the accused.[25] This follows from the fact that similar fact evidence is circumstantial evidence. When there is no reasonable view of the evidence consistent with the innocence of the accused, it can be said that the prejudicial effect of the evidence is outweighed by its probative value. The statement in Pfennig to this effect was confirmed in the joint judgment in Phillips v The Queen.[26][24] (1995) 182 CLR 461.[25] Ibid at 483-84.[26] [2006] HCA 4 at [9]; (2006) 225 CLR 303 at 308.

Decision

Reasons for decision

The trial Judge’s directions with one exception were appropriate. It was necessary for the jury to decide whether the evidence of one complainant, if accepted, could assist with other evidence in arriving at a verdict with respect to a particular charge. The exception relates to the Judge’s reference to an “accumulation” of findings of guilt. This was an unfortunate expression. However, the view could be taken, that in context, the jury would not have been misled. In the paragraph following the reference to an accumulation of findings of guilt, a correct direction was given. We have concluded in the circumstances that the direction, when considered as a whole, was adequate and the jury would have understood that they should consider each count separately on the evidence relevant to that particular count. We do not consider that a risk of miscarriage of justice arose from the Judge’s direction.Conclusion At the time of the pre-trial ruling the rejection of the application for separate trials was an order well within the Judge’s discretion. At the time of summing up, notwithstanding the narrowing of issues, the evidence remained cross-admissible. The Judge’s directions were adequate in the circumstances. Having regard to the foregoing reasons, this appeal should be dismissed. WHITE J: The appellant was originally charged on one information with 10 counts of rape arising from separate incidents involving five complainants. Two counts were laid in respect of each of the five complainants. A District Court judge rejected an application for separate trials of each of the five sets of charges. After that decision, but before the empanelment of the jury, the Prosecution entered a nolle prosequi in respect of the two counts involving one of the complainants, CH. It then laid a fresh information alleging the eight counts concerning the remaining four complainants. The appellant did not make any further application for separate trials. The appellant was convicted on three sets of charges (those involving the complainants MH, AI and KG), but acquitted on the fourth (involving the complainant MB). The following table gives the details of the charges and the verdicts concerning them: The appellant appeals against the convictions. He complains of the decision of the judge not to order separate trials and of the directions given to the jury concerning the use which could be made of each complainant’s evidence in relation to the other charges. The amended Notice of Appeal is expressed in a way suggesting that the appeal is against the interlocutory order of the judge refusing separate trials. This led to some of the submissions on appeal focussing on the circumstances which existed at the time of the judge’s interlocutory order, and the correctness or otherwise of the judge’s order in that context. A characterisation of the appeal as an appeal against the judge’s interlocutory order is inappropriate. Rather, the appeal is against the six guilty verdicts. The appellant’s grounds of appeal should be understood as contending that the verdicts result in a miscarriage of justice,[17] with that miscarriage being said to arise, firstly, from the joint trial of the four sets of charges and, secondly, from the directions to the jury. The question of whether the joint trial gave rise to a miscarriage of justice is to be determined by reference to the whole of the circumstances which unfolded at trial. Those circumstances included the evidence given by the prosecution witnesses and, in this case, by the appellant himself. [17] Criminal Law Consolidation Act 1935 (SA) (CLCA) s 353(1).

Ratio Decidendi

Legal Principle Established

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