R v C, CN

The applicant, R v C, CN, sought permission to appeal against convictions for persistent sexual exploitation of one child and indecent assault of another. The applicant contended that the jury's verdicts were unreasonable, unsafe, and unsatisfactory. Additionally, the applicant argued that the trial judge erred in admitting evidence of discreditable conduct, specifically the applicant's habit of exposing his genitals, and provided inadequate directions to the jury regarding its use.

The central legal issues before the court were whether the verdicts were unsafe or unsatisfactory, and whether the admission and direction concerning the discreditable conduct evidence constituted a miscarriage of justice. Specifically, the court had to consider the application of section 34P of the Evidence Act 1929 (SA) to the admissibility of discreditable conduct evidence and the adequacy of the trial judge's directions to the jury under section 34R of the same Act.

The Full Court of the Supreme Court of South Australia, comprising White, Peek, and Blue JJ, held that neither verdict was unsafe or unsatisfactory, acknowledging that inconsistencies in evidence were for the jury to resolve. However, the court found that the trial judge erred in admitting the discreditable conduct evidence. Section 34P required the judge to be positively satisfied of the probative value of such evidence substantially outweighing its prejudicial effect, and that its permissible use could be kept sufficiently separate from impermissible use. The judge's reasons did not demonstrate consideration of these requirements. Furthermore, the directions given to the jury regarding the genital exposure evidence did not comply with section 34R, as they permitted its use in relation to complainants for whom it was inadmissible.

Consequently, the court was unable to be satisfied that there had been no substantial miscarriage of justice. Permission to appeal was granted, and the appeal was allowed, with the convictions set aside and a retrial directed on those counts.