R v BOTTEN

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.