R v B, AM - [2015] SASCFC 174

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, AM
[2015] SASCFC 174
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Peek)
30 November 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - OTHER MATTERS
EVIDENCE - ADMISSIBILITY - TENDENCY, CO-INCIDENCE AND PROPENSITY - GENERALLY
This is an appeal against conviction. The appellant was convicted by jury of persistent exploitation of a child. The allegations were in relation to a single complainant, the appellant's daughter, allegedly occurring between 21 April 2011 and 19 November 2013.
The appellant was initially tried in November 2014. The Judge dismissed the jury after they were unable to reach a verdict, and a new trial was ordered. The re-trial was heard in May 2015 before a different District Court Judge and a jury. The complainant was not called as a witness at the re-trial. The Judge instead admitted an audio-visual record of the evidence given by the complainant at the November 2014 trial, pursuant to s 13D of the Evidence Act. This admission is the basis for the first ground of appeal. The appellant also submits, as the second ground of appeal, that the Judge erred in failing to direct the jury as to permissible and non-permissible uses of discreditable conduct evidence given by a witness SC. Thirdly, the appellant submits that the Judge erred in failing to adequately direct the jury in relation to the application of the standard and burden of proof as well as the need to scrutinise the complainant's evidence closely.
Held (Sulan J and Peek JJ, Kourakis CJ concurring):
1. The trial Judge wrongly exercised the discretion under s 13D by concluding that the section allowed a vulnerable witness to avoid giving evidence if they simply did not wish to do so. A witness's simple refusal is not a sufficient reason to enliven the discretion.
2. The Judge erred by failing to give a direction to the jury as to the permissible and impermissible uses of the evidence of the witness SC.
3. It is not necessary to deal with ground 3.
Held, allowing the appeal (Sulan and Peek JJ):
4. The appeal is allowed and the conviction is set aside. The Court does not order a re-trial. The appellant is entitled to a verdict of acquittal.
Per Kourakis CJ:
5. The appeal is allowed and the matter is remitted to the District Court for re-trial.

R v B, AM
[2015] SASCFC 174
Court of Criminal Appeal: Kourakis CJ, Sulan and Peek JJ

KOURAKIS CJ: I gratefully adopt the summary of the trial evidence and litigation history set out in the judgment of Sulan and Peek JJ.
I would…

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 B, AM

Details

AGLC: R v B, AM [2015] SASCFC 174
Case: [2015] SASCFC 174
Decision Date: 30 November 2015

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant for maintaining an unlawful relationship with a child, contrary to s 13D of the Criminal Law Consolidation Act 1935 (SA). The dispute arose from allegations that the appellant, who was married to MCF's mother and later became MCF's de facto father and guardian, engaged in escalating sexual contact with MCF between 2011 and 2013, when MCF was between 11 and 13 years of age. The matter came before the Full Court of the Supreme Court of South Australia following the appellant's conviction at trial.

The legal issues before the Full Court included whether the trial judge had erred in refusing an application for MCF to be called as a witness at a previous trial, thereby causing a miscarriage of justice. Further, the court was required to determine if the trial judge had failed to adequately direct the jury regarding the permissible and impermissible use of evidence given by a prosecution witness, SC, who testified about the appellant's admissions of attraction to MCF and fears of becoming a predator. Finally, the court considered whether the trial judge had adequately directed the jury on the standard and burden of proof, and the need for careful scrutiny of MCF's evidence.

The Full Court addressed the grounds of appeal. Regarding the first ground, the court considered the proper application of s 13D of the Act in relation to the tender of MCF's evidence. The court found that the trial judge's directions concerning the evidence of SC were insufficient, particularly in relation to the potential for that evidence to be used as propensity evidence, which would be impermissible. The court also found that the directions on the burden and standard of proof, and the need to scrutinise MCF's evidence, were not adequately given.

The Full Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders

Orders of the court

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Background

Background to the litigation

Before dealing with the grounds of appeal, it is important to understand the factual background. Background MCF was born on 22 April 2000. The appellant and MCF’s mother, NY, met on line on the internet during a random chat. NY invited the appellant to her house and, on that occasion, they had sexual intercourse. This was a single occasion upon which the appellant and NY were involved. NY became pregnant resulting in the birth of MCF. The appellant discovered that he was the father of MCF when the appellant’s mother informed him that there had been a birth notice placed in the newspaper at about the time of MCF’s birth on 22 April 2000. In 2003 the appellant married BF, who knew about NY and communicated with NY on line. When BF found out that NY, who had been living out of Adelaide, was moving back to Adelaide, she encouraged the appellant to build a relationship with MCF, whom the appellant had met for the first time when MCF was three years of age. MCF regularly stayed with the appellant and BF. In 2007 NY, who had been involved in a motor vehicle accident, voluntarily surrendered custody of MCF to the appellant and BF, as she was unable to adequately care for MCF. When MCF came to reside with the appellant and BF, there were two other children of their marriage. Two more children were born after 2007. The family lived together at Nailsworth and, later, at Salisbury East. The prosecution case was that in about the middle of 2011 when MCF was 11 years of age, the appellant began to touch her in the area of her breasts. There were instances when the appellant entered the bathroom whilst MCF was showering. On occasions, he entered the shower and touched the lower part of her back with his erect penis. Between 2011 and 2013 it is alleged that the sexual contact escalated. The prosecution case was that by 2013 the appellant committed acts of cunnilingus and digital vaginal penetration. In 2013 MCF told a school friend, NW. NW eventually informed one of the school teachers at their school. A report was made to police. On 19 November 2013 MCF made a statement to police which resulted in the appellant being charged. At the trial, the prosecution called SC, who was a long-time friend of the appellant and was a groomsman at his wedding to BF. In February 2013 the appellant, during a conversation with SC, told him that MCF was developing into a woman, that he had feelings of attraction towards her and that he was struggling with those feelings. He told SC that he was afraid that at some point he would not be able to control his thoughts or his feelings, and he was scared that he would become a predator. The prosecution case was that this conversation took place at about the time the appellant escalated his sexual abuse of MCF. The appeal The grounds of appeal are:1.That the trial had miscarried as a result of the tender of MCF’s evidence at the previous trial in circumstances where the trial Judge refused the defence application for MCF to be called.2.The trial Judge erred in failing to direct the jury as to the permissible and impermissible use of the evidence of the witness SC.3.That the learned trial Judge erred in failing to adequately direct the jury in relation to the proper application of the standard and burden of proof and the need to scrutinise MCF’s evidence carefully.Ground 1: the proper use of s 13D of the Act

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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