R v Bonython-Wright - [2013] SASCFC 87

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BONYTHON-WRIGHT
[2013] SASCFC 87
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
22 August 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL - EMBARRASSMENT OR PREJUDICE
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - OTHER MATTERS
CRIMINAL LAW - PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant was convicted, following a trial by jury, of three offences of unlawful sexual intercourse with WP, an offence of indecent assault against WP, and an offence of unlawful sexual intercourse with NW. The offence of indecent assault against WP comprised an act of masturbation which was alleged to have been committed as the appellant simultaneously masturbated NW, followed by the appellant performing fellatio on each of them in turn, whilst they were all in a tent on a camping trip to Deep Creek. The appellant was sentenced to a single sentence of ten years' imprisonment with a non-parole period of six years. The appellant appeals against his convictions and sentence.
The grounds of appeal against the convictions are that:
(1) the evidence of the offending against each complainant was not admissible against the other, and a separate trial of the offence against NW should have been ordered;
(2) the Judge misdirected the jury on the use of evidence of sexual conduct with each complainant in the determination of the offence(s) charged against the other;
(3) the Judge misdirected the jury on the assessment of the complainants' credibility and the relationship between that issue and the onus of proof;
(4) the Judge failed to direct the jury on the proper use of any lies they might find the appellant to have told in evidence; and
(5) the Judge erred in allowing WP to be recalled to give evidence of an initial complaint.
The primary ground of appeal against sentence is that the sentence was manifestly excessive. The appellant also maintains miscellaneous other grounds of appeal against sentence.
Held (by Kourakis CJ, Blue and Stanley JJ agreeing, dismissing the appeals):
(1) The evidence of offending against the complainants was cross-admissible because it made the Deep Creek offending much more probable, and because the similarities in the conduct alleged by each complainant rendered independent fabrication improbable (at [37] - [51]).
(2) The Judge's directions on the use of evidence of sexual conduct with each complainant in the determination of the offence(s) charged against the other explained its salient uses and warned against…

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 Bonython-Wright

Details

AGLC: R v Bonython-Wright [2013] SASCFC 87
Case: [2013] SASCFC 87
Decision Date: 22 August 2013

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, R v Bonython-Wright, for offences alleged to have been committed in 1985. The appellant, a youth worker, was accused of sexual offences against a complainant, WP, who was 15 years old at the time. The dispute centred on the admission of certain evidence and the directions given to the jury during the trial. The matter was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Blue and Stanley JJ.

The legal issues before the court included whether the admission of evidence relating to the appellant's propensity to smoke cannabis with the complainant and his advice on how to conceal this activity constituted a miscarriage of justice. Furthermore, the court had to consider whether the trial judge's directions to the jury adequately addressed the potential prejudice arising from the joinder of charges and the evidence presented, particularly concerning the appellant's alleged sexual conduct and his association with another individual, NW. The court also considered whether the sentence imposed was manifestly excessive.

The court reasoned that the evidence concerning cannabis use, while potentially prejudicial, was admissible as it provided context for the relationship between the appellant and the complainant and was relevant to the complainant's state of mind and the circumstances of the offending. The Chief Justice held that the trial judge's directions, when viewed in their entirety, were sufficient to guide the jury on the proper use of the evidence and to mitigate any potential prejudice. The court found no basis to interfere with the conviction or the sentence.

Consequently, the Full Court dismissed the appeal against conviction and refused the application for permission to appeal against sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

My reasons for so holding follow.The evidence The offences against both complainants were alleged to have been committed in 1985. In that year, and indeed throughout the 1980s, the appellant worked as a youth worker with the Department of Community Welfare at Mount Barker but he lived with his wife in Wayville. The appellant was 30 years of age in 1985. During 1985, world-wide activities were held to focus attention on issues of concern to youth following the proclamation of that year as International Youth Year by the United Nations. The appellant was actively involved in events held in South Australia for that purpose. The complainant, WP, was born on 10 October 1969. WP met with the appellant during 1984, when he was a member of his high school student representative council, to plan International Youth Year activities for 1985. WP’s meetings with the appellant usually occurred at the Mount Barker office of the Department of Community Welfare but were sometimes held at the appellant’s Wayville home. At one such meeting at the appellant’s house, the appellant supplied cannabis to WP which they smoked together. Thereafter they regularly smoked cannabis when they met. WP testified that the appellant usually smoked cannabis in a pipe or bong but occasionally rolled a joint. The appellant advised WP to use Visine drops after smoking cannabis to clear his bloodshot eyes and to suck on Soothers to disguise the smell of cannabis on his breath. In 1985 WP became president of his high school’s student council. He continued to meet with the appellant. WP testified that his first sexual contact with the appellant occurred in February 1985. At the time the appellant was the organiser of the local Mount Barker cinema club. WP testified that one of the films screened by the cinema club early in the year was “Greystoke - The Legend of Tarzan”. WP gave evidence that on the night of that screening, shortly after the film started, he and the appellant left the theatre. The appellant drove WP to the Mount Barker summit. At the summit they again smoked cannabis, supplied by the appellant. Whilst WP was intoxicated by the cannabis, the appellant made sexual advances which culminated in the appellant masturbating WP and performing fellatio on him. In the course of those events, the appellant made complimentary references to the size of WP’s penis. Before they left the summit the appellant urged WP not to disclose what had happened to anyone because it would destroy his reputation and his marriage. The events on that occasion were the subject of count 2. WP was 15 years old at the time. The appellant and WP continued to meet throughout 1985 and continued to smoke cannabis together. On one of those occasions WP met NW at the appellant’s Wayville home. All three regularly met at the appellant’s home thereafter and often smoked cannabis together. They sometimes attended a city gym together. WP testified that during 1985 he only ever saw NW when he was in the appellant’s company.

Decision

Reasons for decision

For the above reasons, I would dismiss the application for permission to appeal against sentence.Conclusion In summary, I would dismiss the appeal against conviction and refuse the application for permission to appeal against sentence. BLUE J: I agree. STANLEY J: I would dismiss the appeal against conviction and I would refuse permission to appeal against sentence. I agree with the reasons of the Chief Justice.

Ratio Decidendi

Legal Principle Established

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