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R v Dolan

R v Dolan

Case [1992] SASC 3638 16 October 1992

Appeal

Jurisdiction

Admissibility of Evidence

Unconscionable Conduct

Criminal Law

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COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA King C.J.(1), Olsson(2) and Mullighan(3), JJ.

CWDS
Criminal law and procedure - indecent assault and unlawful sexual intercourse - failure to direct jury as to permissible and impermissible use of evidence of course of sexual conduct other than the conduct particularised as the subject of the charges - appeal allowed and convictions set aside - whether new trial should be ordered - motive for falsehood - lack of substantial corroboration - verdicts of not guilty on two counts casting doubt on credibility of alleged victim.
Confessions - when caution should be administered.
Child witness - need for corroboration direction with respect to 14 year old alleged victim of sexual offences.
Evidence Act 1929 (SA) s34i.
R v Pahuja (12988) 49 SASR 191 and R v Do (1990) 54 SASR 543 applied. S v R
(1989) 168 CLR 266 distinguished. Hargan v The King (1919) 27 CLR 13 and R v Morgan (1978) 3 All ER 13 discussed. R v Hallam and Karger (1984) 42 SASR
126; R v Szach (1980) 23 SASR 504; DPP v Hester (1973) AC 296 and R v Dossi
(1918) 13 Cr App R 158, considered.

HRNG ADELAIDE, 15 September 1992 #DATE 16:10:1992
Counsel for appellant:     Mr D.H. Peek.
Solicitor for appellant:     Legal Services Commission of SA,
Counsel for respondent:     Ms A.M. Vanstone.
Solicitor for respondent:    Director of Public Prosecutions (SA)

ORDER
Delivery of reasons for judgment.

JUDGE1 KING C.J. The appellant was tried in the Supreme Court by judge and jury on an information containing one count of indecent assault on a girl under the age of 12 years and four counts of unlawful sexual intercourse with the same girl. He was found guilty on the count alleging indecent assault and on two of the counts of unlawful sexual intercourse but not guilty on the other two counts of unlawful sexual intercourse. He has appealed against his convictions. At the conclusion of the argument the court allowed the appeal, set aside the convictions and substituted verdict and judgment of acquittal in relation to each of the counts on which he had been convicted. We indicated that we would deliver our reasons later. 2. Each count complied with the legal requirement that it allege only one offence, but the case of the prosecution was that there had been a course of sexual maltreatment of the alleged victim by the appellant over a period extending from August 1989 to September 1991. The counts themselves did not differentiate between the offence charged and other incidents of the same kind described by the alleged victim as part of the course of conduct. Counsel for the prosecution made some effort in opening to particularise the counts but except as to the first count it amounted to little more than to indicate the type of sexual act which occurred in the incident forming the basis of each count. The incident to which the first count related was identified as being an…

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.

Continue reading R v Dolan

Details

AGLC: R v Dolan [1992] SASC 3638
Case: [1992] SASC 3638
Decision Date: 16 October 1992

CaseChat Overview and Summary

In the Supreme Court of South Australia, the case of R v Dolan involved an appeal against the appellant's convictions on one count of indecent assault and two counts of unlawful sexual intercourse with a girl under the age of 12. The Supreme Court, consisting of King C.J., Olsson, and Mullighan, JJ., allowed the appeal, set aside the convictions, and substituted verdicts of acquittal. The legal issues centered on the trial judge's failure to direct the jury on the permissible and impermissible use of evidence concerning the appellant's course of sexual conduct, the admissibility of the appellant's interview with the police, and the need for a corroboration warning regarding the 14-year-old alleged victim's testimony. The court found that the trial was fatally flawed due to the lack of proper jury directions and insufficient corroboration warning, leading to the conclusion that justice would not be served by requiring the appellant to stand trial again.

Orders