R v F, C - [2017] SADC 71

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v F, C
[2017] SADC 71
Ruling of His Honour Judge Chivell
4 July 2017
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
Nine charges involving sexual offences against three complainants. Application to sever the charges to allow for a separate trial for each complainant. Whether evidence cross-admissible, having regard to issues of discreditable conduct and propensity. Evidence held cross-admissible.
Application refused.
Criminal Law Consolidation Act 1935 (SA) s 278(2a); Evidence Act 1929 (SA) s 34P(1), s 34P(2), s 34P(3); R v N, SH [2010] SASCFC 74; Sutton v The Queen (1984) 152 CLR 528; De Jesus v The Queen (1986) 68 ALR 1; R v Maiolo (No 2) (2013) 117 SASR 1; R v MJJ; R v CJN (2013) 117 SASR 81; R v C, CA [2013] SASCFC 137; R v Glover (1987) 46 SASR 310; R v Sutton (No 2) (1983) 32 SASR 553; R v M, BJ (2011) 110 SASR 1; Phillips v The Queen (2006) 225 CLR 303, referred to.

R v F, C
[2017] SADC 71

The accused is charged on one information with nine sexual offences against three children. The children are sisters, and the accused is their uncle. I will call them G, S and D. The alleged offences occurred between about 1989 and 1998.
The alleged offences consist of:
·three counts of unlawful sexual intercourse with a person under 12 years by inserting his fingers into G’s vagina;
·one count of indecent assault of a person under 12 years by touching G’s vagina;
·two counts of indecent assault of a person under 12 years by touching S’s vagina (one of which also includes touching S’s ‘bottom’);
·three counts of indecent assault of a person under 12 years by respectively touching D’s vagina, kissing D’s vagina and kissing D’s breasts.
The joinder and severance of charges of sexual offences is authorised by s 278(2a) of the Criminal Law Consolidation Act 1935 (SA). That section provides:
278—Joinder of charges
…
(2a) Despite subsection (2) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a) subject to paragraph (b), those counts are to be tried together;
(b) the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim.
The use of the word ‘may’ in sub-s (b) gives me a discretion to order a separate trial, but only if evidence in relation to that count is not admissible (cross‑admissible) in relation to each other count relating to a different alleged victim.
That discretion is to be exercised judicially. In R v N, SH, the…

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 F, C

Details

AGLC: R v F, C [2017] SADC 71
Case: [2017] SADC 71
Decision Date: 4 July 2017

CaseChat Overview and Summary

The respondents, F and C, were charged with nine offences of a sexual nature against three complainants. The respondents sought to sever the charges and have separate trials for each complainant. The legal issue before the court was whether the evidence against each respondent was cross-admissible in light of the issues of discreditable conduct and propensity. The court considered the relevance of the evidence to the other charges and whether the probative value outweighed the prejudicial effect. The court found that the evidence was cross-admissible as it was relevant to the credibility of the complainants and the respondents' propensity to commit the offences. The court also found that the prejudicial effect of the evidence was not so great as to outweigh its probative value.

The court held that the evidence of discreditable conduct and propensity was relevant to the credibility of the complainants and the respondents' propensity to commit the offences. The court noted that the evidence of discreditable conduct was not limited to prior sexual offences but could include any conduct that reflected on the credibility of the complainants. The court also held that the evidence of propensity was relevant to the respondents' propensity to commit the offences and could be used to establish a pattern of behaviour. The court found that the probative value of the evidence outweighed the prejudicial effect, and therefore, the evidence was cross-admissible. The application to sever the charges was dismissed. The court held that the evidence against each respondent was relevant to the other charges, and a separate trial for each complainant would not be in the interests of justice.

Orders