R v B, RWK - [2004] SASC 331

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, RWK
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
26 October 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appeal against conviction - retrial - appellant found guilty by jury of three counts of unlawful sexual intercourse - victim raised allegations of further uncharged acts of sexual intercourse not raised at previous trial - whether trial Judge's refusal to discharge jury resulted in a miscarriage of justice - whether trial Judge erred in directions to jury concerning delay - whether trial Judge erred in directions to jury concerning proof of uncharged acts - whether trial Judge erred in directions to jury relating to reaching a verdict - whether trial Judge erred in directions to jury concerning the cross-admissibility of evidence - appeal dismissed.
R v IK [2004] SASC 280; R v Clifford (2004) 233 LSJS 157, considered.

R v B, RWK
[2004] SASC 331
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: The appellant, RB, was tried before a jury in the District Court on an Information alleging three counts of unlawful sexual intercourse with his niece, C. She was twelve years of age at the time of counts one and two, and between twelve and fourteen years old at the time of count three.
The jury found him guilty on each count.
RB appeals by leave against the convictions. He complains of a failure by the Judge to discharge the jury after C gave evidence of offending by RB that she had not previously disclosed. There is a complaint about the manner in which the Judge dealt with the jury after the foreperson indicated that the jury might be deadlocked. RB complains also of the Judge’s directions in relation to the impact on the defence case of delay and of a lack of particularity in the allegations of offending conduct and of directions in relation to the standard of proof and in relation to cross-admissibility of evidence.
The trial
The trial was a retrial, guilty verdicts at an earlier trial having been set aside on appeal.
C was born in January 1987. She was seventeen years of age at trial. When the events in question happened, she was living with her mother and brothers and sisters. At trial her mother was 33 years of age. RB, her mother’s younger brother, was 27 years of age at trial.
From time to time RB lived with each of his three sisters and their families, including with C’s mother and her children. The prosecution case was that he interfered sexually with C on many occasions while he was living with…

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, RWK

Details

AGLC: R v B, RWK [2004] SASC 331
Case: [2004] SASC 331
Decision Date: 26 October 2004

CaseChat Overview and Summary

In the case of R v B, RWK, the appellant was found guilty by a jury of three counts of unlawful sexual intercourse. The appeal against the conviction was dismissed by the court. The primary issue for the court was whether the trial judge's refusal to discharge the jury resulted in a miscarriage of justice. Additionally, the court had to decide whether the trial judge erred in various directions to the jury, including those concerning delay, proof of uncharged acts, reaching a verdict, and the cross-admissibility of evidence. The court concluded that there was no miscarriage of justice and that the trial judge's directions were adequate, despite some potential for confusion.

The court examined the trial judge's directions to the jury about the impact of delay in making allegations against the accused. The judge had warned the jury about the dangers of relying solely on the victim's evidence due to the delay in reporting the incidents. While the judge's comments could have been better phrased, the court found that the directions as a whole were sufficient. The jury was clearly instructed to consider the potential prejudice to the defence case due to the delay. The court emphasised that it is undesirable for the judge to suggest that it is the accused's responsibility to demonstrate actual prejudice from the delay.

The court also reviewed the trial judge's directions concerning the proof of uncharged acts and the cross-admissibility of evidence. The court found no substance in the argument that the evidence of previously undisclosed acts resulted in a miscarriage of justice. The judge's direction to the jury to be satisfied of a continuing course of sexual misconduct was deemed potentially confusing but not prejudicial enough to warrant a miscarriage of justice. The appeal was dismissed by the court, affirming the convictions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

No miscarriage of justice arose from the raising of the new material.Ground 3 – The Judge’s warning to the jury about C’s evidence The Judge told the jury that there had been “considerable delay” from the time of the conduct first alleged against RB until trial. He directed the jury about how delay by C in complaining about the conduct might affect their assessment of her. He then told the jury how a delayed complaint might make it difficult for an accused person to test the allegations against him. He then gave the jury the following warning:“I warn you that it would be dangerous to rely upon the evidence of [C] and convict the accused on the basis of her evidence unless, after scrutinising her evidence with great care and paying heed to this warning, you are nonetheless satisfied about its truth and accuracy.” In the course of his directions leading up to this warning, referring to the impact of delay on the ability of the accused to test the allegations against him, the Judge said “Certainly, he has not raised anything about this in his defence. His defence is a denial of any offending charged or uncharged.” In relation to the particular incidents the subject of the three charges, he said that the accused was “probably not disadvantaged” because the occasion and circumstances of these three incidents were “identified with considerable particularity”, which he outlined. It would have been better if these comments were not made. As to the former comment, it is difficult if not impossible for an accused to show precisely how the presentation of his defence has been prejudiced by delay. The warning is given because there is a risk of prejudice to the defence that cannot be ignored. The first of the Judge’s comments might have suggested that the failure of the accused to point to prejudice meant there was none. The second comment had some basis on the facts, for the reasons the Judge gave. But there remained a risk of delay causing prejudice. As a result of a question by the jury, the Judge later returned to his warning. He repeated it for them. He covered all the main points, referring again to delay and to possible prejudice to the presentation of the defence case. He did not repeat the first comment referred to above. This was just before the jury retired for the last time. Taken as a whole the directions were adequate. The jury could have been in no doubt that they had to consider potential prejudice to the defence attributable to the delay. The comments made by the Judge, to which I have referred, were not such as to deprive the accused of the benefit of the directions that the Judge gave, even though it would have been better if they were not made. If the delay in making allegations against an accused has resulted in prejudice to the presentation of the defence case, or gives rise to a real risk of prejudice, an appropriate direction should be given to the jury about that. The direction might or might not involve a warning to the jury. That would depend on the circumstances of the case. But if the occasion arises to give the jury a direction about the impact of delay, it is desirable not to say anything that might suggest that it is for the accused to demonstrate actual prejudice.

Decision

Reasons for decision

The submission under this ground is that having regard to the evidence given by C of previously undisclosed offending conduct, the trial had resulted in a miscarriage of justice. As I understand the submission, it is the same submission as was put in relation to ground 1. Accordingly, it suffices to say that there is no substance in the submission.Conclusion For those reasons I would dismiss the appeal against the convictions. BLEBY J: I agree that the appeal should be dismissed. I agree with the reasons of the Chief Justice. I merely wish to add one further comment concerning Ground 4 and the direction that the jury needed to be satisfied that there was a continuing course of sexual misconduct. I agree that the direction given had the potential to cause confusion in a case where the complainant had given evidence of a great many specific incidents. Even though they could not be given a date, they were incidents which she said took place on a particular occasion associated with some other act or event and at a particular place. Generally speaking, it is unwise to rely on proof only of a course of conduct where the evidence is given in that manner. The evidence in R v Clifford (2004) 233 LSJS 157, on which the Judge seems to have modelled his direction, was of a very different character. It was lacking in particularity and involved a course of conduct over a long period of time, on many occasions and of a repetitive nature. Indeed, one of the complaints in that case was of the lack of particularity. What may be an appropriate direction in one case is not necessarily so for another. Notwithstanding that, in the circumstances of this case I do not think that the direction gave rise to a risk of a miscarriage of justice. GRAY J: This appeal should be dismissed. I agree with the reasons of Doyle CJ.

Ratio Decidendi

Legal Principle Established

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