R v Bridger - [2003] SASC 180

R v BRIDGER
[2003] SASC 180
Court of Criminal Appeal: Duggan, Debelle and Lander JJ

DUGGAN J. The appellant was found guilty by a jury of committing eight offences of a sexual nature against teenage girls who worked in a bakery of which he was the manager. There were three complainants and a joint trial took place on all counts. The appellant was convicted on two counts of indecent assault and one count of indecent behaviour against complainant A, three counts of unlawful sexual intercourse and one count of indecent assault against complainant B and one count of indecent assault against complainant C. He was sentenced to a total period of imprisonment for six years and a non-parole period of imprisonment for three and a half years was imposed. He now appeals against the convictions and sentence.
The main grounds of appeal against conviction arise out of the refusal of the trial judge to sever the counts in relation to each complainant from the counts relating to the other complainants. According to the grounds of appeal, the trial judge erred in refusing to sever the counts and in ruling that the evidence of each complainant was admissible in relation to the counts involving the other complainants. It is also claimed that there has been a miscarriage of justice as a result of all counts being heard together.
It was not disputed at the hearing of the appeal that the counts were properly joined in the same information in that they alleged a series of offences of the same or a similar character (Criminal Law Consolidation Act 1935 (the Act) s 278(1)). However, it was argued that the trial judge should have exercised the power conferred by s 278(2) of the Act and directed that there be separate trials in relation to the allegations of each complainant. Section 278(2) provides as follows:
“Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.”
The sole ground which was advanced in support of this argument was that a possibility of concoction existed between the various complainants. It was conceded that if there was no possibility of concoction, the evidence given by each complainant was admissible in relation to the evidence given by the other complainants and, in those circumstances, the decision not to sever the counts could not be criticised. The same issue was before the court in Hoch v The Queen (1988) 165 CLR 292. In that case Brennan and Dawson JJ said in their joint judgment (298):
“The prosecution joined the three counts…

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.

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Details

AGLC: R v Bridger [2003] SASC 180
Case: [2003] SASC 180
Decision Date: 25 June 2003

CaseChat Overview and Summary

In the case of R v Bridger, the appellant was found guilty of multiple counts of sexual offences against teenage girls who worked at a bakery where he was the manager. The appellant was convicted on multiple counts of indecent assault, indecent behaviour, and unlawful sexual intercourse against three complainants. He appealed against his convictions and sentence, raising several grounds for appeal. The main grounds of appeal against conviction were the trial judge's refusal to sever the counts in relation to each complainant from the counts relating to the other complainants, and the admissibility of the evidence of each complainant in relation to the counts involving the other complainants. The court found that the trial judge did not err in refusing to sever the counts, as there was no reasonable possibility of concoction between the complainants, and the evidence of each complainant was admissible in relation to the counts alleging offences against the other complainants. The court also dismissed the ground of appeal against conviction alleging that the trial judge erred in not directing the jury to exercise caution in convicting on the counts alleging offences against one of the complainants in view of her denial by way of a statutory declaration of any sexual harassment or sexual advance made by the appellant towards her. The appeal against sentence was also dismissed, as the sentence and non-parole period were well within the bounds of the sentencing discretion bearing in mind the number of offences and the circumstances in which they were committed. The appeal was ultimately dismissed by all judges of the Court of Criminal Appeal.

Orders