R v Dawson-Ryan

Case [2009] SASC 259

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DAWSON-RYAN

[2009] SASC 259

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Layton and The Honourable Justice David)

28 August 2009

EVIDENCE - ADMISSIBILITY AND RELEVANCY - SIMILAR FACTS

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL

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

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF SUMMING UP AS A WHOLE

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE - PRESENTATION OF DEFENCE CASE

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

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY

Appeal against conviction - appellant charged with counts of sexual offences against six complainants - application by appellant prior to trial for separate trial for each complainant - trial Judge received evidence on voir dire - Judge ordered separate trial for two complainants and otherwise dismissed the application - whether Judge erred in failing to order separate trials in relation to the remaining complainants - whether Judge erred by making findings of credibility in relation to witnesses on voir dire - whether Judge's approach to issue of concoction resulted in a misapplication of test for cross-admissibility of uncharged acts - whether errors of Judge on voir dire relevant to appeal - accused convicted by jury of 19 offences - Judge directed jury on cross-admissibility of complainants' evidence - whether Judge erred by directing that internal consistency of evidence could itself be used to support that evidence - whether Judge erred by directing that proof beyond reasonable doubt would be established if the jury was satisfied of an underlying unity between the evidence of the complainants - whether Judge failed to adequately direct the jury with respect to reasonable possibility of concoction - whether Judge misstated the defence case in summing up by stating that the defence case was that there was no pattern or similarity in the complainants' accounts - whether Judge was under a duty to direct the jury that if it were not satisfied that the prosecution had disproved concoction beyond reasonable doubt then it must acquit on all counts - Judge and both counsel erroneously believed that ss 34CB and 34M of the Evidence Act applied at the time of the trial - whether Judge erred in failing to give a direction in compliance with the requirements in Longman v The Queen (1989) 168 CLR 79 and the common law -…

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AGLC
R v Dawson-Ryan [2009] SASC 259
Case
[2009] SASC 259
Decision Date

CaseChat Overview and Summary

The appeal in R v Dawson-Ryan involved the appellant who was convicted by a jury of 19 offences, including sexual offences against six complainants. The appellant had applied prior to trial for separate trials for each complainant, but the trial Judge ordered separate trials for only two of the complainants and dismissed the application for the remaining complainants. The appellant appealed against his conviction on several grounds, including the trial Judge's refusal to order separate trials, the Judge's findings of credibility on voir dire, the Judge's approach to the issue of concoction, and the Judge's directions to the jury on various matters.

The court considered whether the Judge erred in not ordering separate trials, whether the Judge's findings of credibility were appropriate, whether the Judge misapplied the test for cross-admissibility of uncharged acts, and whether the Judge's directions to the jury were deficient. The court found that the Judge did not err in refusing to order separate trials, and the findings of credibility were not inappropriate. The Judge's approach to the issue of concoction and the directions to the jury were also found to be adequate. The court held that any error in the Judge's understanding of the relevant statutory provisions did not result in procedural unfairness or a risk of miscarriage of justice.

In conclusion, the appeal was dismissed. The court found no merit in the appellant's arguments and held that the trial was conducted fairly and without any errors that would warrant overturning the conviction. The appellant's appeal against his conviction was rejected, and the original conviction stands.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

This complaint is rejected.Sections 34CB and 34M of the Evidence Act The defendant raised issues concerning an error made by the Judge in applying recent amendments to the Evidence Act introduced by the Statutes Amendment (Evidence and Procedure) Act 2008 (SA) which came into operation on 23 November 2008. In particular, the amendments introduced sections 34CB and 34M which affected the application of Longman[34] (“the Longman warning”), and Kilby[35] and Crofts[36] (“the Kilby direction”). [34] Longman v The Queen (1989) 168 CLR 79.[35] Kilby v The Queen (1973) 129 CLR 460.[36] Crofts v The Queen (1996) 186 CLR 427. At the time of the trial, all concerned, that is the Judge, the prosecution and the defence, approached the trial on the basis that sections 34CB and 34M had application at the trial. The Judge invited counsel to make submissions about the retrospective operation of the sections. Both counsel declined to put any submission against the retrospective effect of the sections. The Judge conducted the trial on the basis that the sections applied at the time of the trial. Subsequent to the trial in the present proceedings, this Court delivered its decision in Seigneur.[37] In that decision, all members of the Court characterised sections 34CB and 34M as evidentiary, and to be considered as falling under the rubric of procedure. The earlier common law and statutory provisions were also considered to be procedural in nature. As will be discussed later, the observations of Gleeson CJ in Doggett[38] confirm that these procedural provisions are flexible rules to be adjusted and applied to the circumstances of a particular trial. As was observed in Matthews[39] they are not to be elevated into propositions of law. The effect of Seigneur is that neither section 34CB or section 34M had application at the trial in the present proceedings.[37] R v Seigneur (2009) 103 SASR 207.[38] Doggett v The Queen (2001) 208 CLR 343.[39] R v Matthews [1999] 1 VR 534. On appeal, both counsel accepted that having regard to the decision in Seigneur, sections 34CB and 34M did not form part of the law applicable at the trial. It was agreed that the Judge should have directed the jury as far as delay was concerned in accordance with relevant common law authority including the High Court decision in Longman[40] and, as far as the evidentiary value of the complaints were concerned, in accordance with the common law and section 34I of the Evidence Act 1929 (SA).[40] Longman v The Queen (1989) 168 CLR 79. The defendant submitted that, as the Judge had misapprehended the applicability of the relevant statutory provisions, it necessarily followed that there had been misdirections of law and that in the circumstances, this had led to a risk of miscarriage of justice. The Director submitted that it did not necessarily follow that the Judge’s directions on either topic were inadequate. In particular the prosecution submitted that, when closely analysed, the directions met the requirements of the law that applied at the time of the trial.Longman

Decision

Reasons for decision

Having regard to the reasoning above, it is not necessary to consider the proviso. However to the extent that some error had occurred by reason of the Judge’s wrong application of sections 34CB and 34M, in our view the review of the entire transcript reveals that this did not give rise to any procedural unfairness in the trial or any risk of a miscarriage of justice. Conclusion The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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