R v BOTTEN - [2017] SASCFC 73

Supreme Court of South Australia
(Court of Criminal Appeal)
R v BOTTEN
[2017] SASCFC 73
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Auxiliary Justice Chivell)
28 June 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
EVIDENCE - ADMISSIBILITY - CREDIBILITY EVIDENCE - GENERALLY
Appeal against convictions.
On 7 February 2017 in the District Court a jury found the appellant guilty of two counts of unlawful sexual intercourse and three counts of indecent assault. He was acquitted of one count of unlawful sexual intercourse following a submission by his counsel that there was no case to answer in respect of that count.
The abuse occurred over a period of several months in 2013. At that time the appellant was aged 21-22 years and the complainant was aged 14. The appellant was in a relationship with the complainant’s sister and would often spend time, including staying overnight, at the complainant's house.
The first count (of which the appellant was acquitted) was an act of fellatio said to have occurred in the stairwell of some flats the two passed through on their way home. Count 2 was an act of anal sexual intercourse which occurred in the stairwell immediately after the allegations which gave rise to the first count. The remaining offences, counts 3, 4, 5 and 6 occurred on various occasions thereafter in the form of either indecent assaults or, in one instance, an act of fellatio.
The appellant appeals on eight grounds.
First, the appellant complains that the Judge erred in not directing the jury as to the use to be made of the appellant’s acquittal in respect of count 1 and that this error was compounded by the Judge directing the jury that the evidence led in respect of count 1 was to be treated as an uncharged act. Second, the appellant complains about the Judge’s directions to the jury in relation to the oath belief rule. Third and fourth, the appellant complains about comments made by the prosecutor that a defence witness, Ms Hoban, had been provided with details so that she could then provide them in court and that the Judge failed to adequately address the prejudice caused thereby. Fifth, the appellant complains that the Judge erred by commenting to the jury that there was no actual evidence before them as to how drugs may affect an individual, which the appellant says depreciated the effect of the defence submission that the complainant took drugs. Sixth, the appellant complains that the prosecutor, in commenting on the complainant’s reluctance to complain to others, breached s 34M(2) of the Evidence Act 1929 (SA). Seventh and eighth, the appellant complains that the prosecutor contravened the principle in Palmer v The Queen (1998) 193 CLR 1

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 BOTTEN

Details

AGLC: R v BOTTEN [2017] SASCFC 73
Case: [2017] SASCFC 73
Decision Date: 28 June 2017

CaseChat Overview and Summary

The appellant, R v Botten, appealed convictions for sexual offences against a complainant who was 14 years old at the time of the alleged offending. The appellant, aged 21, was in a relationship with the complainant's older sister and frequently stayed at the complainant's home. The prosecution alleged multiple instances of sexual abuse occurring over several months in 2013. The appeal was heard by Kelly and Stanley JJ and Chivell AJ.

The court was required to determine several grounds of appeal. These included whether the trial judge erred in failing to direct the jury on the use of the appellant's acquittal on the first count, and compounding this by directing the jury to treat evidence related to that count as an uncharged act. Another significant ground concerned the judge's directions to the jury regarding the oath belief evidence rule, specifically in relation to evidence given by the complainant's sister. The court also considered whether a comment made by the judge about the lack of evidence on the effect of drugs constituted an implied criticism of the defence, and whether the cumulative effect of prosecutorial comments and the judge's handling of them resulted in a miscarriage of justice.

The court addressed the grounds of appeal concerning the acquittal on count 1 and the treatment of related evidence. It was held that the judge's direction to treat the evidence as an uncharged act, despite the acquittal, was not an error, as the evidence was relevant to the remaining charges. Regarding the oath belief evidence, the court found that the judge's directions were adequate, and that the sister's evidence, which stated the complainant was not to be believed on oath, was properly considered by the jury in the context of the overall evidence. The judge's comment about the absence of evidence on drug effects was also deemed not to be an implied criticism of the defence. The court concluded that the prosecutor's comments, when viewed in the context of the entire summing up, did not create a miscarriage of justice.

The appeal was dismissed, with the convictions upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant appeals the convictions on eight grounds. Background The prosecution case at trial alleged that the appellant sexually abused the then 14 year old complainant on multiple occasions over a period of several months in 2013. At that time the appellant was 21 years old and in a relationship with the complainant’s older sister. As a consequence he would often spend time, including overnight, at the complainant’s house. The abuse commenced at around the time that the complainant’s sister, JL, was pregnant to the appellant. The initial acts of abuse were said to have occurred in the early hours one morning after the appellant and the complainant had been walking around the suburbs together. The first count (of which the appellant was acquitted) was an act of fellatio said to have occurred in the stairwell of some flats the two passed through on their way home. Count 2 was an act of anal sexual intercourse which occurred in the stairwell immediately after the allegations which gave rise to the first count. The remaining offences, counts 3, 4, 5 and 6, occurred on various occasions thereafter in the form of either indecent assaults or, in one instance, an act of fellatio when the appellant inserted his penis into the complainant’s mouth. At trial, the prosecution called the complainant, Kelly Berg (to whom the initial complaint was made), and the complainant’s mother. In the course of her examination-in-chief, the complainant said in respect of the first count on the information, which was an allegation that the appellant placed his penis into her mouth, that the appellant’s penis touched the side of her head rather than penetrating the mouth. The appellant did not give evidence. However the defence called a woman named Samantha Hoban who gave evidence relevant to the first two counts on the information, being the night that the first two counts were allegedly committed. Her evidence had the capacity to contradict some of the events recounted by the complainant leading up to the incident in the stairwell at the units. JL, the complainant’s sister, gave evidence that her sister was not to be believed on oath. That evidence was the genesis of the second ground of appeal. The first ground of appeal is a complaint that the Judge erred in not directing the jury as to the use to be made of the appellant’s acquittal in respect of count 1. The appellant complains that this error was compounded by the Judge directing the jury that the evidence led in respect of the first count was to be treated as an uncharged act. The second ground of appeal is a complaint that the Judge erred in directions to the jury about the oath belief evidence rule. The fifth ground of appeal is a complaint about a comment made by the Judge in the course of the summing up that there was no evidence before them as to the effect of drugs on a person. The appellant complains this was an implied criticism of the defence. The remaining grounds of appeal, 3, 4, 6, 7, and 8, are complaints about comments made by the prosecutor in her closing address to the jury allied with complaints that the Judge failed to adequately address the prejudice caused by those comments. The appellant submits that the cumulative effect of these failures has caused a miscarriage of justice.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KELLY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

Full text does not contain this section.