R v BFB

Case [2003] SASC 411

R  v  BFB
[2003] SASC 411

Court of Criminal Appeal: Doyle CJ, Perry and Mullighan JJ

  1. DOYLE CJ:         The Court allowed Mr B’s appeal against four convictions recorded against him in the District Court, set aside the convictions and ordered a retrial on the Information.  We did so after granting leave to appeal on certain grounds on which a single Judge had refused leave to appeal.

  2. I now give my reasons for joining in that order.

    Facts

  3. Mr B was charged with four counts of unlawful sexual intercourse with a person under 12 years of age.  He pleaded not guilty.

  4. The trial took place at the end of September 2002.  The information alleged that count one was committed on 2 February 1997, a little more than five and a half years before the trial.  Counts two, three and four were alleged to have occurred on the one occasion, between April 1997 and August 1997, a little over five years before the trial.

  5. I will refer to the victim of the alleged offences as AM.  Her parents were friendly with Mr B and his family.  AM was friendly with Mr B’s daughter.  In 1997 AM was eight years of age.

  6. AM said that on 2 February 1997 her mother took her and her two sisters to the beach.  Mr B and his family joined them.  AM’s mother and Mr B’s wife left the four children in Mr B’s care for a time.  The children were in the water.  AM stayed in the shallows with Mr B, the other children going further out into the water.  AM said that Mr B put her on his lap, put his hand under her bathers and put a finger into her vagina.  The lower part of her body was under the water when he did this.  Mr B removed his finger when the other children came near.  AM said nothing about the incident, because she was “too scared”.  AM said this was “the first thing that I remember that happened”, meaning the first such incident.

  7. The prosecutor asked AM if this was the only time that Mr B touched her, and AM said it happened again after the incident at the beach.

  8. AM identified the incidents the subject of counts two, three and four as occurring on an occasion when AM stayed at Mr B’s house for a “sleepover”.  She had stayed there quite often.

  9. AM said that she and Mr B’s daughter were watching television.  AM was wearing a nightie and knickers.  They were in the family room.  Mr B’s daughter was sitting in a chair, and AM was sitting on a couch, Mr B being next to her.  Mrs B had gone to bed and Mr B’s daughter was asleep.

  10. AM said that Mr B went to the bathroom, returned with a wet flannel, and told AM to wipe her vagina with the flannel.  Mr B then told AM to pull up her nightie, took her knickers down “a little bit” and put…

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R v BFB [2003] SASC 411
Case
[2003] SASC 411
Decision Date

CaseChat Overview and Summary

In the case of R v BFB, the appellant, Mr B, was convicted of four counts of unlawful sexual intercourse with a person under 12 years of age. He appealed against his conviction, arguing that the trial judge failed to provide appropriate directions to the jury regarding the delay between the alleged incidents and the reporting of the offences, as well as the admission of evidence regarding uncharged acts. The appeal was heard by the South Australian Court of Criminal Appeal, with Doyle CJ, White and Bleby JJ concurring in the decision to allow the appeal, set aside the convictions, and order a retrial.

The primary legal issues that the Court was required to decide were whether the trial judge adequately directed the jury regarding the delay between the alleged offences and the reporting of the incidents, and whether the trial judge properly handled the admission of evidence concerning uncharged acts. The Court examined the trial judge's directions to the jury and assessed whether they were sufficient to prevent a miscarriage of justice. Additionally, the Court considered whether the evidence of uncharged acts should have been admitted and whether the trial judge's direction to the jury in relation to this evidence was appropriate.

The Court found that the trial judge failed to provide adequate directions to the jury concerning the delay between the alleged offences and the reporting of the incidents. The Court held that when there has been a substantial delay between the occurrence of events the subject of a charge and notice of a complaint about those events to the accused, and that delay has placed the accused at a forensic disadvantage, the judge must give the jury a clear warning about the danger of convicting on the evidence of the complainant. The Court further found that the trial judge should have ruled the evidence about the uncharged acts to be inadmissible and directed the jury to ignore it. Even if the trial judge thought that the evidence could have been admissible, he should have raised the question of admissibility with counsel and heard argument. If he concluded that the evidence was admissible, it was necessary that he determine its purpose so that the prosecution and the defence knew how to treat it.

In conclusion, the Court allowed the appeal, set aside the convictions, and ordered a retrial. The Court held that the trial judge's failure to provide adequate directions to the jury regarding the delay between the alleged offences and the reporting of the incidents, as well as the admission of evidence regarding uncharged acts, created a real risk of a miscarriage of justice. The Court emphasised the importance of trial judges providing appropriate directions to juries in cases involving sexual offences and substantial delays between the occurrence of events and the reporting of the incidents.

Orders

Orders of the court

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Background

Background to the litigation

I now give my reasons for joining in that order.Facts Mr B was charged with four counts of unlawful sexual intercourse with a person under 12 years of age. He pleaded not guilty. The trial took place at the end of September 2002. The information alleged that count one was committed on 2 February 1997, a little more than five and a half years before the trial. Counts two, three and four were alleged to have occurred on the one occasion, between April 1997 and August 1997, a little over five years before the trial. I will refer to the victim of the alleged offences as AM. Her parents were friendly with Mr B and his family. AM was friendly with Mr B’s daughter. In 1997 AM was eight years of age. AM said that on 2 February 1997 her mother took her and her two sisters to the beach. Mr B and his family joined them. AM’s mother and Mr B’s wife left the four children in Mr B’s care for a time. The children were in the water. AM stayed in the shallows with Mr B, the other children going further out into the water. AM said that Mr B put her on his lap, put his hand under her bathers and put a finger into her vagina. The lower part of her body was under the water when he did this. Mr B removed his finger when the other children came near. AM said nothing about the incident, because she was “too scared”. AM said this was “the first thing that I remember that happened”, meaning the first such incident. The prosecutor asked AM if this was the only time that Mr B touched her, and AM said it happened again after the incident at the beach. AM identified the incidents the subject of counts two, three and four as occurring on an occasion when AM stayed at Mr B’s house for a “sleepover”. She had stayed there quite often. AM said that she and Mr B’s daughter were watching television. AM was wearing a nightie and knickers. They were in the family room. Mr B’s daughter was sitting in a chair, and AM was sitting on a couch, Mr B being next to her. Mrs B had gone to bed and Mr B’s daughter was asleep. AM said that Mr B went to the bathroom, returned with a wet flannel, and told AM to wipe her vagina with the flannel. Mr B then told AM to pull up her nightie, took her knickers down “a little bit” and put his finger into her vagina. That was the subject of count two. Mr B then “pulled down his pants” and told AM to suck on his penis, which she did. That was the subject of count three. Mr B then told AM to go into his daughter’s bedroom and told her to crouch on the bed. He lifted her nightie up on her back, and pulled her knickers down to her knees. He then inserted his penis into her vagina from the rear. That was the subject of court four. The four incidents were described quite briefly by AM, in what reads as a matter of fact way. At the end of the evidence in chief the following evidence was given by AM:“Q. Was that the last time that anything ever happened with you and B.A. No.Q. Was that the last time that you can remember.A. Yes.Q. Can you remember anything else that happenedA. No, I just remember it happening again, but I can’t remember it in full detail or anything like that.Q. The two times that you’ve told us about, the time at Glenelg and the time when you stayed over – when you were playing netball, are they the two times that you remember best.A. Yes.Q. That you can remember the most detail about.A. Yes.Q. But is this right: do you think it happened again but you can’t remember anything else about it.A. Yes.Q. Did you tell anyone that night or the next morning.A. No.”

Evidence

Evidence Before The Court

In the circumstances there is a real risk of a miscarriage of justice. The appeal must be allowed on this ground.Direction about unsupported evidence I do not accept the submission that because AM’s evidence was unsupported, the Judge should have directed the jury that it was unsafe to convict. The Judge reminded the jury that only AM and Mr B were in a position to give evidence about the alleged incidents. He adequately directed the jury about the need to scrutinise AM’s evidence with great care. He reminded them that AM was a young child, and that her age was a factor to be considered. His directions in that respect were adequate.Direction about delay In Longman v The Queen (1999) 168 CLR 79 the High Court reminded trial judges that a warning must be given to a jury “whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case:” Longman at 86 Brennan, Dawson and Toohey JJ. In that case it was held that the circumstances called for a warning. Since then a number of cases have come before the High Court in which the Justices of the Court have had occasion to consider, in the context of sexual offences, when it would be sufficient for a trial judge to merely comment on, or bring the attention of the jury to, an aspect of a case that calls for some caution, and when it will be necessary to warn the jury that it would be dangerous or unsafe to convict on the evidence of the victim alone, unless the jury, scrutinising the evidence with great care, and considering the relevant circumstances and the warning, were satisfied of the truth and accuracy of the evidence. For convenience I will refer to this simply as a warning. The main cases are Crampton v The Queen [2000] HCA 60; (2001) 206 CLR 161 and Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343. These decisions in turn have received extensive consideration in decisions of intermediate appellate courts in Australia. It appears that trial judges are having difficulty in applying to cases involving sexual offences the principle considered in Longman. Longman and Doggett established that when there has been a substantial delay between the occurrence of events the subject of a charge, and notice of a complaint about those events to the accused, and that delay has placed the accused at a forensic disadvantage, the judge must give the jury a clear warning about the danger of convicting on the evidence of the complainant. That warning must be backed by the judge’s authority, it must be sufficiently clear and firm, and it must be adequately tied to the facts of the case. I add that there are other circumstances in such cases that may call for a warning. In the present case the concern is with delay, coupled with forensic disadvantage to the accused, and I confine my attention to that topic. The difficulty that trial judges are experiencing in this area is probably due to the fact that there are no hard and fast lines to be drawn. The issue is whether there is a circumstance in the case that gives rise to a perceptible risk of a miscarriage of justice, and accordingly gives rise to the need for a warning. That will depend on the circumstances of the case, the time that elapsed, and whether the accused is placed at a significant disadvantage. Sometimes a relatively short lapse of time will put the accused at a disadvantage. Sometimes a lengthy lapse of time will not put the accused at a disadvantage. It all depends on the circumstances. Alternatively, there may be a factor that calls for a comment rather than a warning. These are matters on which views can differ. Views have differed in appeal courts. Nor can trial judges resort to the easy course of giving a warning when there is a possibility that one might be called for. The giving of excessive and inappropriate warnings will be unfair to complainants, contrary to the public interest in a regularly conducted trial process, confusing to juries and runs the risk of returning this aspect of the law to an approach from which Parliament endeavoured to extract it, when Parliament enacted provisions such as s 34I(5) of the Evidence Act 1929 (SA).

Decision

Reasons for decision

PERRY J MULLIGHAN J
I mention that no complaint was made at trial about the terms of the summing up in relation to the uncharged acts or in relation to delay. That is a relevant matter, although not decisive. But in the present case there is no reason to think that there was any advantage to Mr B in allowing the summing up to remain as it was. Nor is this a case in which it can be said that, as a matter of judgement, the summing up was better left as it was. The risk of a miscarriage of justice was too great for that. Accordingly, though the failure to raise the matter at trial is regrettable, that should not influence the outcome of the appeal.Conclusion For those reasons I joined in the order that the appeal be allowed, that the convictions be set aside, and that a retrial be ordered. I agree with the orders proposed by Doyle CJ and with his reasons. I agreed that the appeal should be allowed for the reasons which have now been expressed by the Chief Justice. I wish to make a few observations of my own. When the evidence about the uncharged acts was given, which appears to have been unexpected, the learned Trial Judge should have ruled that it was inadmissible and directed the jury to ignore it. His direction to the effect that it could have some bearing on their not hearing of any complaint for a long time was a misdirection. Even if the learned Trial Judge thought that the evidence could have been admissible, he should have raised the question of admissibility with counsel and heard argument. If he concluded that the evidence was admissible, it was necessary that he determine its purpose so that the prosecution and the defence knew how to treat it. The issue of admissibility had to be resolved at the time the evidence was given so that the prosecution and the defence knew where they stood with regard to it. In my view, a Longman direction should be given when, in the circumstances of the particular case, the delay is such that the accused is likely to suffer forensic disadvantage. In some cases there may be significant delay but no forensic disadvantage. An example is where an incident is linked to a particular event, the date and place of which is known and the accused has an alibi. In other cases the delay may be of shorter duration but the forensic disadvantage is obvious. There will be cases where the delay is so substantial that forensic disadvantage must be assumed. In my view, a prompt complaint after the alleged incident at the beach, which is the subject of the first charge, could have afforded an opportunity to the appellant to test the girls’ evidence about that alleged incident. It was alleged to have occurred in the water at a public beach with her two sisters and others nearby. If a complaint had been made, the appellant may have been able to obtain evidence from others nearby which may have demonstrated that it was unlikely that such an incident occurred. Any significant period of delay would substantially reduce that opportunity.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J, MULLIGHAN J

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