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R v BOTTERILL

R v BOTTERILL

Case [2010] SASCFC 31 21 September 2010

Appeal

Charge

Sentencing

Statutory Construction

Criminal Law

Evidence

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BOTTERILL
[2010] SASCFC 31
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Kelly)
21 September 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - ALTERNATIVE VERDICTS
Appeal against conviction – appellant charged with persistent sexual exploitation of a child, unlawful sexual intercourse and indecent assault – appellant found not guilty of persistent sexual exploitation charge – jury unable to reach a verdict in relation to unlawful sexual intercourse charge – appellant convicted of indecent assault charge – whether jury precluded from returning a guilty verdict on that charge by operation of s 50(5) Criminal Law Consolidation Act 1935 (SA) – whether verdict of the jury on the indecent assault charge inconsistent with the verdict on charge of persistent sexual exploitation of a child – whether conviction unsafe and unsatisfactory.
HELD: jury not prevented from returning a verdict of guilty on the indecent assault charge – inconsistency with the verdict of acquittal on the charge of persistent sexual exploitation not established – verdict not rendered unsafe or unsatisfactory as a result of delay, lack of suspicion by the wife of the appellant, or complainant's vague recollection of the appellant's conduct – it was open to the jury to find the appellant guilty beyond all reasonable doubt – verdict not unsafe or unsatisfactory – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 50, s 49(3), s 56, referred to.
MacKenzie v The Queen (1996) 190 CLR 348; R v Kirkman (1987) 44 SASR 591; MFA v The Queen (2002) 213 CLR 606; M v The Queen (1994) 181 CLR 487, considered.

R v BOTTERILL
[2010] SASCFC 31
Court of Criminal Appeal: Duggan, Gray and Kelly JJ

DUGGAN J: The appellant was tried in the District Court on an information which alleged the following offences:
Count 1
Persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) between 1 January 1999 and 31 January 2004.
Count 2
Unlawful sexual intercourse contrary to s 49(3) of the CLCA between 4 October 2002 and 31 January 2004.
Count 3
Indecent assault contrary to s 56 of the CLCA between 4 October 2003 and 31 January 2004.
The complainant in each case is the appellant’s step-granddaughter. She was born on 4 September 1989.
The appellant was found not guilty by majority verdict on the first count. The jury were unable to reach a verdict on the second count. The appellant was convicted by unanimous verdict on the third count.
The appellant appeals against his conviction on the third count. It is argued that the jury were precluded from…

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 BOTTERILL

Details

AGLC: R v Botterill [2010] SASCFC 31
Case: [2010] SASCFC 31
Decision Date: 21 September 2010

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, Botterill, for sexual assault. The dispute arose from the appellant's contention that the jury's verdicts were inconsistent and unreasonable, leading to an unsafe conviction. The matter was heard by Duggan, Gray and Kelly JJ in the Supreme Court of South Australia.

The central legal issues before the court were whether the jury's verdicts were so inconsistent as to be incapable of standing, and whether the verdict of guilty on the charge of sexual assault was unreasonable or unsupported by the evidence, thereby rendering the conviction unsafe.

The court considered the evidence presented at trial, particularly in relation to the specific elements of the offence of sexual assault and the alternative verdict of indecent assault. The judges analysed the jury's findings on each count, noting that the jury had acquitted the appellant of one charge of sexual assault but convicted him of another. The court applied the principles governing inconsistent verdicts, which require an examination of whether the jury could have reasonably reached the verdicts they did, having regard to the evidence and the directions given. The court found that the jury's verdicts, when viewed in light of the evidence and the specific charges, were not so inconsistent as to be legally impermissible. Furthermore, the court concluded that the evidence was sufficient to support the jury's finding of guilt on the sexual assault charge, and that the verdict was not unreasonable.

The appeal was dismissed.

Orders