(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Peek)
21 April 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
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, on six counts of unlawful sexual intercourse with Ms A contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) that allegedly took place between 25 December 1985 and 31 March 1986 – Ms A was aged 14 at the time of the alleged offences – the appellant was Ms A’s employer – there was an initial complaint by Ms A in 1986 but no charges were laid – by the time of the trial the police file had been destroyed and all that remained was an apprehension report – key witnesses had died before the trial – whether s 34CB of the Criminal Law Consolidation Act 1935 (SA) applied to the directions given by the trial Judge – whether s 34CB(1) should be given a narrow or broad interpretation in relation to the abolition of the Longman warning – whether the trial Judge’s directions were adequate in the circumstances of the case – whether after a 24 year delay the impairment of memory amounted to a significant forensic disadvantage – whether the loss of the police investigation file amounted to a significant forensic disadvantage – whether the jury should have been warned not to reason that because the appellant lied, if he did, he was guilty – whether the jury should have been told that a lie could reflect only upon the appellant’s credibility – whether there was a real risk of a miscarriage of justice – whether the verdict was unsafe.
Held: appeal allowed, convictions set aside and re-trial ordered – s 34CB applied to the case – the lapse of time between the alleged offending and the trial resulted in a significant forensic disadvantage – the trial Judge’s directions to the jury were inadequate and gave rise to a real risk of a miscarriage of justice – a direction to the jury not to reason that any lies or inconsistencies were evidence of guilt was not necessary – the verdict was not unsafe as it was open to the jury to find the counts proved beyond a reasonable doubt on the evidence at trial.
[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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AGLC
R v Cassebohm [2011] SASCFC 29
Case
[2011] SASCFC 29
Decision Date
CaseChat Overview and Summary
In *R v Cassebohm*, the Full Court of the Supreme Court of South Australia considered an appeal against a jury conviction of the appellant on six counts of unlawful sexual intercourse with a minor. The alleged offences occurred between December 1985 and March 1986, when the complainant was 14 years old and employed by the appellant. A significant delay of approximately 24 years occurred between the alleged offending and the trial.
The central legal issues before the Court were whether the trial judge’s directions to the jury were adequate, particularly in light of the substantial delay and the resulting forensic disadvantages. This involved determining the applicability and interpretation of s 34CB of the *Criminal Law Consolidation Act 1935* (SA), which concerns the abolition of the "Longman warning" in sexual offence cases. The Court also had to consider whether the jury should have been specifically warned that any lies or inconsistencies admitted by the appellant in his evidence did not necessarily equate to guilt, and whether the overall verdict was unsafe due to these factors.
The Court allowed the appeal, finding that s 34CB of the *Criminal Law Consolidation Act 1935* (SA) applied to the case. It held that the considerable lapse of time between the alleged offences and the trial had created significant forensic disadvantages, including the loss of the police investigation file and the death of key witnesses, which impaired memory and evidence availability. The trial judge's directions were deemed inadequate in addressing these disadvantages, creating a real risk of a miscarriage of justice. While the Court noted that a specific direction that lies do not automatically prove guilt was not strictly necessary, the cumulative effect of the inadequate directions rendered the verdict unsafe. Consequently, the convictions were set aside, and a retrial was ordered.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Ms David, for Mr Cassebohm on appeal, submits that a miscarriage of justice has occurred, attributable mainly to two circumstances. First, she submits that the trial Judge failed to direct the jury adequately in relation to the effect of the passage of time between the alleging offending and the trial. This submission raises the application to the case of s 34CB of the Evidence Act 1929 (SA). Second, she submits that the trial Judge erred in failing to direct the jury that if they found that Mr Cassebohm had lied in his evidence before them, it did not necessarily follow that he was guilty. She also complains that the direction in relation to certain medical evidence was inadequate. Facts At the time in question Mr Cassebohm operated a food van from which he sold ready to eat food. The mother of a school friend introduced Ms A to Mr Cassebohm. A little later Mr Cassebohm spoke to Ms A’s mother, who agreed to Ms A working for Mr Cassebohm on weekends during the school holidays. Ms A’s home was some distance from the place where the food van was operated. An arrangement was reached between Mr Cassebohm and Ms A’s mother that Ms A could stay overnight in Mr Cassebohm’s home on the nights that she worked for him. This avoided the need for Mr Cassebohm to drive her home late at night. Ms A said that the alleged offences occurred at his home, when she was staying there after working for him. The prosecution case was that Mr Cassebohm made this arrangement because he was sexually attracted to Ms A. Ms A described in evidence how, on occasions corresponding with the charges, Mr Cassebohm prevailed on her to submit to acts amounting to sexual intercourse. There is no need to go into the details. Ms A gave no evidence in relation to one count. The Judge directed the jury to acquit on that count. Ms A gave evidence that apart from the occasions the subject of the charges, Mr Cassebohm had vaginal intercourse with her almost every Friday and Saturday night when she stayed at his home. The circumstances in which Ms A finished working for Mr Cassebohm were disputed. Ms A gave evidence that on a particular occasion she stayed at Mr Cassebohm’s house once more. She declined to have intercourse with him. Mr Cassebohm was angry. Ms A left the house and did not return. Shortly before this, during March 1986, Ms A told a school friend that Mr Cassebohm was making her “have sex with him”. On 17 March 1986 Ms A was medically examined by Dr Black. Evidence of the examination was given at trial. The examination was a result of a complaint made by Ms A to the police, shortly before the medical examination. Ms A was interviewed by the police. Some form of investigation was carried out. Mr Cassebohm was interviewed by the police on 1 June 1986. By the time of the trial the police file had been lost or destroyed. There was no record of Ms A’s statement, nor of Mr Cassebohm’s interview. All that remained was an apprehension report. The investigating officer, who was called at trial, had no memory of the matter. No charges were laid. There was no evidence available about the reason for that.