R v C, CA

Case [2015] SASCFC 143

Supreme Court of South Australia

(Court of Criminal Appeal)

R v C, CA

[2015] SASCFC 143

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Auxilliary Justice David)

30 September 2015

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - DIRECTIONS TO JURY

CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY - ADEQUACY OF WARNING - SEXUAL OFFENCES

CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EXPRESSION OF JUDGE'S OWN OPINION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE

CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING

The appellant was convicted after a trial by jury of 10 counts of unlawful sexual intercourse, three counts of indecent assault and one act of gross indecency. The offending related to two boys who were friends with the appellant’s children.

The appellant appeals against the convictions on a number of grounds related to the directions given to the jury by the learned trial Judge and the presentation of the defence case in the summing up.

Whether the learned trial Judge erred in directing the jury regarding possible collusion and concoction. Whether the learned trial Judge failed to identify relevant dissimilarities in the accounts given by the complainants. Whether the learned trial Judge erred in directing the jury as to the permissible use of complaints. Whether the learned trial Judge unfairly bolstered the complainants’ credibility and reliability in his summing up to the jury. Whether the learned trial Judge failed to adequately present the defence case in summing up to the jury. Whether the learned adequately directed the jury in relation to the issue of forensic disadvantage.

Held per Kelly J (dismissing the appeal) (Vanstone J and David AJ agreeing):

1.      The learned trial Judge’s directions adequately conveyed to the jury that the possibility of concoction or collusion was relevant to the credibility of both complainants, and that this would impact whether they were satisfied beyond reasonable doubt that the complainants gave truthful and reliable evidence.

2.      It was not for the learned trial Judge to compose a list of matters which he considered constituted dissimilarities. In inviting the jury to evaluate the evidence of the complainants it is plain that his Honour was directing the jury’s attention towards possible dissimilarities.

3.      The effect of the trial Judge’s directions as a whole was to convey to the jury that the differences between accounts needed to be considered. The jury could not have failed to be aware that inconsistency in the complaint evidence was relevant to the complainants’ credibility. The learned trial Judge’s directions to the jury as to the limited way that it could use the complaint evidence did not take that issue away…

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R v C, CA [2015] SASCFC 143
Case
[2015] SASCFC 143
Decision Date

CaseChat Overview and Summary

The Court of Appeal of South Australia considered an appeal by the appellant against his convictions for various sexual offences against a complainant, V1, who was between nine and 15 years old during the alleged offending. The appeal was brought on six grounds, primarily concerning the directions given by the trial judge to the jury regarding the evidence, particularly the use of complaint evidence and the adequacy of warnings about corroboration.

The central legal issues before the Court of Appeal were whether the trial judge had adequately directed the jury on the permissible use of complaint evidence under section 34M of the *Evidence Act 1929* (SA), and whether the summing up as a whole, including any directions on corroboration and the expression of the judge's own opinion, was fair and accurate. Specifically, the appellant argued that the judge had improperly restricted the jury's use of complaint evidence, thereby prejudicing the defence.

The Court found that the trial judge had discharged his obligations under the *Evidence Act* in light of the issues that arose during the trial. The judge's directions regarding the complaint evidence were deemed adequate, and the court rejected the argument that the judge had prohibited the jury from using the evidence to assess the consistency of the complainants' accounts. The Court also considered that the summing up, viewed in its entirety, provided the jury with the necessary assistance to consider the numerous charges. The Court noted that arguments relying on previous decisions were based on isolated observations taken out of context.

Consequently, the Court of Appeal dismissed all grounds of appeal and affirmed the appellant's convictions.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against his convictions on six grounds. They relate to the directions given to the jury by the learned trial Judge and the presentation of the defence case in the Judge’s summing up to the jury. The appellant was granted permission to appeal against ground 2 of his Notice of Appeal by a single Judge of this Court. He seeks permission to appeal on ground 1, and ground 3 to 6. Insofar as it is necessary I would grant permission to appeal on these grounds. However, I would dismiss the appeal. My reasons follow.Background At trial the appellant faced 25 charges (including alternative charges) for offending alleged to have taken place between approximately February 2001 and January 2007. There was also evidence of an additional 25 uncharged acts of discreditable conduct by the appellant at trial. V1 Between June 2000 and June 2003, the appellant and his wife ran the States Park Equestrian Centre in the Onkaparinga Hills. V1’s family agisted horses there and it was through his family’s involvement with the States Park that V1 became friends with KC and consequently met the appellant. The prosecution case regarding the offending against V1 was that on a number of occasions at the appellant’s various residences, a holiday shack and other public locations, the appellant engaged in sexual acts with V1. V1 was between nine and 15 years old during the period of the alleged offending. The acts with respect to V1 for which the appellant was convicted were:1Unlawful sexual intercourse – when he was approximately 10 years old, V1 was called into the office at the States Park by the appellant. The appellant pulled down his own pants and began to touch his genitals and then pulled down V1’s pants and masturbated himself and V1. The appellant performed fellatio on V1 while masturbating himself (Count 1);2Indecent assault – while V1 was hiding in a closet during a game of hide and seek the appellant pulled down V1’s pants and underwear and touched V1’s genitals and his own genitals simultaneously (Count 2);3Unlawful sexual intercourse – during the first sleepover V1 had at the appellant’s home, the appellant was alone with V1 in the lounge room and touched V1’s genitals and his genitals and performed fellatio on V1 while masturbating himself (Count 3);4Indecent assault – the appellant took V1 into a small shed on the States Park property, pulled down V1’s pants and underwear and touched V1’s genitals with his hand and with a wire brush (Count 5);5Unlawful sexual intercourse – when V1 was 14 or 15 years old the appellant entered V1’s cubicle in the toilets at the Noarlunga Swimming Centre and touched V1’s genitals and his own genitals both through their bathers, after they had taken their bathers off, and then performed fellatio on V1 (Count 6);6Unlawful sexual intercourse – at the appellant’s Hackham residence the appellant entered the bathroom while V1 was showering, took off his clothes and sat next to V1 on the floor of the shower. The appellant touched his own genitals and suggested that V1 wanted to engage in sexual activity. The appellant touched his genitals and V1’s genitals and performed fellatio on V1 while masturbating himself (Count 16);7Unlawful sexual intercourse – during a sleepover in the lounge room of the appellant’s Hackham residence, the appellant touched his and V1’s genitals, before suggesting that he and V1 fellate each other at the same time. The appellant and V1 started to fellate each other before stopping. The appellant then fellated V1 while masturbating himself (Count 18);8Unlawful sexual intercourse – when driving V1 home from the Noarlunga Swimming Centre, the appellant parked his utility and touched his and V1’s genitals before fellating V1 while masturbating himself (Count 20); 9Gross indecency – the appellant took V1 into some stables at his Meadows residence and touched V1’s genitals and his own before fellating V1 while masturbating himself (Count 23);[4] and10Unlawful sexual intercourse – on a trip to a cottage in Victor Harbor the appellant played a game of “strip jack” with V1 during which V1 was required to masturbate and perform fellatio on the appellant, and the appellant masturbated and performed fellatio on V1. At the end of the game the appellant rubbed his penis against V1’s genitals and anus (Count 24).[4] Count 23 was an alternative to Count 22, a charge of unlawful sexual intercourse. The trial Judge directed the jury in his summing up that if it was satisfied that the act of sexual intercourse took place, but was not satisfied that it took place before 15 May 2006, a verdict of not guilty should be reached for unlawful sexual intercourse and a verdict of guilty to the alternative charge should be reached.

Evidence

Evidence Before The Court

For these reasons I consider that this complaint is misconceived and I would dismiss ground 2. Ground 3 – Directions regarding permissible use of complaint evidence I turn now to the complaint that the trial Judge erred in directing the jury as to the permissible use of the complaints which were admitted under s 34M of the Evidence Act 1929 (SA) (Evidence Act). The appellant argues that the trial Judge improperly restricted the use of the complaints to the detriment of the appellant. This complaint arises from the following passage in the summing up when the Judge was directing the jury as to the permissible use of the complaint evidence:Ladies and gentlemen, you may use the evidence of what [V1] said to Monique and what [V2] said to Emily Unger if you see fit only in the way in which I am about to direct you. I begin with this: the evidence of those complaints to Monique Whitton and to Emily Unger are not before you to demonstrate the truth of what [V1] and [V2] said when they made those complaints, if you find that they made the complaints. You must have regard to what each of [V1] and [V2] said in court for that purpose. You may use the evidence of their complaints only in this way: when considering the similarity in their accounts, if you see fit to do so, you may take into account when considering the topic of concoction the fact that they first complained that any sexual contact with the accused some years before they told the police and each of them spoke to the police for the first time in 2011. You may use the evidence in that way, if you see fit. You must not use the evidence for any other purpose. So that is, in considering whether or not they made up their stories, concocted them in more recent years, you are entitled to take into account, if you see fit, the fact that they mentioned sexual activity with the accused to other people well before 2011, being the year when they spoke to Senior Constable Murphy.I repeat: you must not use the evidence that they told other people about any sexual relationship with the accused for any other purpose and, again, you must not use the evidence of what they may have said to those other people, Monique Whitton and Emily Unger, as truth of what they asserted in those statements. The appellant does not complain that the complaint evidence was inadmissible. Rather, the complaint is that the trial Judge failed to direct in accordance with the requirements of the section. It is argued that the effect of these directions was to prohibit the jury from using the evidence to assess the consistency or inconsistency of the details disclosed by each complaint when evaluating the credit of each complainant. This was said to be particularly detrimental given that the evidence of Ms Unger showed inconsistency with V2’s evidence. This complaint needs to be evaluated in the light of the evidence of complaint led from both the complainants and two witnesses, Ms Whitton and Ms Unger, and then viewed in the context of the trial Judge’s directions as a whole.

Decision

Reasons for decision

In my view, the trial Judge discharged his obligations under the section in light of the actual issues during the trial. I would dismiss this ground of appeal. Conclusion In the course of argument the appellant’s counsel placed considerable reliance on some of the comments of Kourakis CJ in C, CA adopting, in my view, isolated observations made in the course of the judgment without having proper regard to the entirety of the judgment or to the context in which the observations were made. It hardly needs to be said that this was a different trial containing fewer counts, with each counsel adopting approaches subtly different from those taken at the earlier trial. Some of the comments made by Kourakis CJ in C, CA were observations made with a view to assisting a trial Judge in the event of a retrial. As it happens, for the reasons I have given, I consider that the Judge in this trial did endeavour to provide the jury with the assistance they needed to navigate their way through each of the 25 counts on the information. In my view the directions he gave were adequate. I would dismiss all grounds of appeal. DAVID AJ: I would dismiss the appeal. I agree with the reasons of Kelly J.

Ratio Decidendi

Legal Principle Established

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