R v B, P

Case [2006] SASC 229

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v B, P

[2006] SASC 229

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Vanstone)

3 August 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT

Appellant charged with two counts of unlawful sexual intercourse and two counts of indecent assault - appellant convicted by jury of alternative of indecent assault on first count of unlawful sexual intercourse - appellant convicted by jury on other three counts as presented - concession on appeal that indecent assault not a true alternative - conviction on first count quashed - whether flawed direction leaving alternative on first count tainted convictions on other counts - whether implicit rejection of part of complainant's evidence on first count was inconsistent with conviction on other grounds - whether trial judge required to direct jury that failure to be satisfied by evidence of complainant on one count should be carried into deliberations on other counts - no such direction required - verdicts not shown to be inconsistent.

Benbolt v The Queen (1993) 60 SASR 7; R v Matthews (2005) 91 SASR 196; Jones v The Queen (1997) 191 CLR 439; R v KWG [2000] SASC 398; R v Markuleski (2001) 52 NSWLR 82; R v Liddy (2002) 81 SASR 22; Longman v The Queen (1989) 168 CLR 79; R v PMT (2003) 8 VR 50; MacKenzie v The Queen (1996) 190 CLR 348; R v Kirkman (1987) 44 SASR 591, considered.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - STRIKING OUT AND WARNING TO JURY TO DISREGARD EVIDENCE

Appellant gave evidence in own defence - appellant revealed during cross-examination that he had been in prison soon after the more recent charges - counsel for accused applied for discharge of jury - trial judge refused to discharge jury - trial judge gave direction to jury to disregard the answer - whether miscarriage of justice occurred.

Maric v The Queen (1978) ALJR 631; Webb & Hay v The Queen (1994) 181 CLR 41; R v Miller (1980) 25 SASR 170; Van de Wiel v The Queen (unreported, 3 August 1995, judgment no. S5202), considered.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - PROOF, EVIDENCE AND PROCEDURE

Evidence of complainant making an initial complaint - initial complaint did not set out subsequent allegations with particularity - trial judge directed that evidence of initial complaint went to prove consistency of complainant's evidence and hence to credit - appellant challenged admissibility of evidence of recent complaint - lack of detail and inconsistencies between…

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R v B, P [2006] SASC 229
Case
[2006] SASC 229
Decision Date

CaseChat Overview and Summary

In the case of R v B, P, the appellant was charged with two counts of unlawful sexual intercourse and two counts of indecent assault. The appellant was convicted by a jury on three counts as presented, and on the alternative of indecent assault on the first count of unlawful sexual intercourse. The appellant appealed against the conviction on the first count and argued that the conviction on the other counts was tainted by the flawed direction on the first count. The appellant also argued that the trial judge was required to direct the jury that failure to be satisfied by the evidence of the complainant on one count should be carried into deliberations on the other counts.

The court found that the appellant had not made good any of the further grounds of appeal. The court held that there was no requirement for the trial judge to direct the jury that failure to be satisfied by the evidence of the complainant on one count should be carried into deliberations on the other counts. The court also found that the verdicts were not shown to be inconsistent. The court rejected the argument that the trial judge was required to give a specific direction as to the treatment of evidence of the complainant's distress exhibited in court or outside court. The court held that such evidence might be admitted at the instance of either side, either as reinforcing or undermining the witness's evidence.

The court dismissed the appeal insofar as it concerned the convictions on counts 2, 3, and 4. The conviction on the first count was quashed, but the appellant was not entitled to an acquittal on the other counts. The court held that the jury was entitled to use a clear finding of indecency in respect of the first allegation in its deliberations on the other counts. The court held that the direction given by the trial judge was correct and that the appellant had not made good any of his further grounds of appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The immediate answer to that submission is that it appears the jury did not follow such a process of reasoning, as it acquitted of count 1 as charged. But there is a more comprehensive answer. The touchings referred to by counsel were, it is true, not specifically charged. (To have charged each of them would have amounted to “overloading” the information.) But they were part of the first incident, which did give rise to count 1. Therefore they were not uncharged acts in the sense that this expression is used in the cases, at least in this jurisdiction. Accordingly, the rationale for requiring directions as to proper use of the evidence and directions to prevent misuse did not apply. I attempted to make the same point in R v IK [2004] SASC 280, (2004) 89 SASR 406 at [156]-[157]. For these reasons I reject the submission that any particular direction as to such preparatory acts and inferences flowing from them was required.Ground 7 – Use of evidence relating to one incident elsewhere The appellant also complains that the Judge permitted the jury to reason from a finding of indecent handling in respect of the first occasion to guilt of the subsequent counts. It is true that his Honour directed the jury that they could take an adverse finding in respect of the earlier incident into their consideration of the subsequent counts. Several uses for that evidence unrelated to propensity were left for the jury’s consideration. The Judge also said the jury could view the earlier incident as showing “sexual attraction on [the appellant’s] part” which could be used in proof of the other counts. I consider that direction was correct. Once the jury was satisfied beyond reasonable doubt of an indecent dealing on the earlier occasion (supported as it was, to a degree, by independent witnesses) it was entitled to use that fact in proof of the later allegations. In this context it is not to the point that this Court has quashed the conviction on count 1. The fact remains that the jury were entitled to make use a clear finding of indecency in respect of that first allegation in its deliberations on the other counts. Ground 8 – Putting of defence case The appellant complains that the way in which the defence case was put to the jury by the Judge lacked fairness and balance. In particular it was submitted that the Judge failed to highlight the contradiction between the complainant and her mother as to whether her head had been on the appellant’s shoulder during the evening of count 1; that there was a contradiction between the complainant and her sister on the one hand and their mother on the other as to whether the sisters were with the appellant alone in the house on the occasion of count 4; and further, that the Judge did not take the jury seriatim through various statements made by the complainant to the police which gave different accounts of the nature and extent of the touchings on the two occasions. The extent to which a Judge must descend to detail in putting the defence varies depending on the circumstances of the trial. As a general rule the Judge must identify the critical evidence and explain its bearing on the legal issues so that the jury fully understand the way in which issue is joined with the prosecution case: R v Whittingham (1988) 49 SASR 67, 69-70. But the Judge is not obliged to repeat all the defence arguments: R v Von Einem (1985) 38 SASR 207, 216 per King CJ; R v Perks (1986) 43 SASR 112, 116.

Decision

Reasons for decision

So far as distress exhibited in court is concerned, it is part of a witness’s demeanour. To instruct a jury to ignore it would be to trespass on the jury’s role. Much the same applies to a demeanour displayed outside court on occasions properly the subject of evidence. Such evidence might be admitted at the instance of either side, either as reinforcing or undermining the witness’s evidence. Whilst a description of a person’s state might not be of much moment, I know of no rule rendering it inadmissible, or requiring that a specific direction be given as to treatment of it. Nor was there any particular reason why such a direction was needed in this case. The ground is without substance.Conclusion In my view the appellant has not made good any of his further grounds of appeal. For the reasons given I would dismiss the appeal insofar as it concerns the convictions on counts 2, 3 and 4.

Ratio Decidendi

Legal Principle Established

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