R v FRANCO - [2010] SASC 132

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FRANCO
[2010] SASC 132
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice Kelly)
7 May 2010
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - COMMENCEMENT OF ACTION
Appellant charged on an information filed in District Court - trial proceeded on a second information, which replicated three of the four charges on first information - trial proceeded on the basis that the common law in relation to evidence of recent complaint was applicable - whether s 34M Evidence Act 1929 (SA) applied - s 34M Evidence Act commenced after the filing of the first information but before filing of the second information - application of transitional provision - when proceeding are taken to have commenced - whether filing of a fresh information constituted the commencement of proceedings thereby attracting the application of s 34M Evidence Act.
Held: filing of fresh information did not mark the commencement of new proceedings, but was a step in the existing proceedings - s 34M Evidence Act did not apply.

CRIMINAL LAW - EVIDENCE - COMPLAINTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Appellant charged with two counts of aggravated indecent assault and one count of unlawful sexual intercourse against a child complainant - evidence of recent complaint - whether trial judge's directions confused the proper use of the evidence as going to credibility of complainant and consistency of conduct with an impermissible hearsay use - whether directions created risk that the jury would misuse the evidence.
Held: trial judge properly directed as to appropriate use of recent complaint evidence - appeal dismissed.
Evidence Act 1929 (SA), s 34M; Statutes Amendment (Evidence and Procedure) Act 2008 s 18, s 22, referred to.
R v Seigneur (2009) 103 SASR 207, applied.
Application for Reservation of Question of Law to the Court of Criminal Appeal (1997) 69 SASR 550, distinguished.

R v FRANCO
[2010] SASC 132
Court of Criminal Appeal: Vanstone, White and Kelly JJ

VANSTONE J: The appellant was convicted in the District Court by verdicts of a jury for two counts of aggravated indecent assault and one count of unlawful sexual intercourse with a person under 14 years. His appeal challenges the correctness of jury directions given by the trial judge concerning the use of evidence of complaint. The appellant argues that the judge applied common law principles relevant to directions upon recent complaint whereas the new statutory regime dealing with evidence of complaint, contained within s 34M of the Evidence Act 1929, was applicable.
The applicable law
During the course of this matter the Director of Public Prosecutions filed two informations in the District Court. The original information was dated 29 September 2008. It contained the three charges upon which the appellant ultimately went to trial, as well as a charge of rape. It…

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 FRANCO

Details

AGLC: R v FRANCO [2010] SASC 132
Case: [2010] SASC 132
Decision Date: 7 May 2010

CaseChat Overview and Summary

The appellant, Franco, appealed against his conviction and sentence, raising several grounds for appeal. The primary dispute centred on the admissibility and application of evidence of recent complaint under the Evidence Act 1929 (SA). The appeal was heard by the Supreme Court of South Australia. The central legal issue revolved around the applicability of section 34M of the Evidence Act, which deals with evidence of recent complaints in child sexual abuse cases. The court had to determine whether this section applied to the proceedings, considering the timing of the commencement of the action and the transitional provisions of the Act. Specifically, the court needed to decide whether the filing of a fresh information constituted the commencement of proceedings, thereby attracting the application of section 34M.

The court examined the timeline of the proceedings, noting that the first information was filed before the commencement of section 34M, while the second information, which replicated three of the four charges, was filed after the section came into effect but before the trial commenced. The transitional provisions of the Act played a crucial role in this determination. The court concluded that the filing of the fresh information did not constitute the commencement of proceedings for the purposes of applying section 34M, thus the common law rules on evidence of recent complaint were applicable. The court also addressed the appellant's argument regarding the adequacy of the directions given to the jury about the use of complaint evidence. The court found no confusion in the directions and held that they correctly reflected the law on the use of such evidence. Therefore, the court dismissed the appeal and upheld the conviction and sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In my view it is clear that the provisions relating to complaint evidence in s 34M Evidence Act were not applicable to the trial and the judge was correct in applying common law rules to the evidence of complaint.Directions on complaint evidence Counsel for the appellant submitted that even if the common law rules relating to recent complaint evidence were applicable, the directions given were inadequate. It was put that in her directions the trial judge had confused two concepts, namely, that the evidence of complaint could not prove the truth of the allegations and that it could show consistency of conduct. It was put that the judge “should have explained the distinction between using the evidence to show consistency of conduct and using the evidence as confirmatory proof of what was stated”. Counsel pointed to two separate passages in the summing up. I set them out.Another factor which you may use when considering credibility and reliability of witnesses is what is called in law ‘complaint evidence’. In this case, the prosecution has submitted to you that the fact that [the complainant] complained to her mother about two of the alleged incidents shortly after she returned home, makes it more likely that she is telling the truth here in court.The judge then went on to describe the defence position in respect of the complaint. Counsel further pointed to a direction given a little later, to this effect:I said that such evidence is only allowed for a very limited purpose. If you find that [the complainant] did make a complaint then you may use that evidence on the basis that it shows how the allegations came to light and it shows whether [the complainant] behaved in a manner which is consistent with her allegations. It is not admitted as evidence of the truth of what [the complainant] said to her mother. I do not find anything confusing in the directions. The first one was not strictly a direction, as it only set out a summary of the prosecution submission on the use to which the complaint evidence might be put. The prosecution submission was not incorrect. Anyway, this was no more than an introduction to the directions of law which the judge went on to give. Although the first passage does not refer to consistency of conduct, which is the common expression of the way in which recent complaint evidence can bear upon the credibility of a complainant, the second passage did, and the effect of both is much the same. The later direction is strictly correct. Here the judge incorporated reference to consistency of conduct and the question whether any such consistency could fortify the allegations made by the child. In my view there was no danger that the jury might have misused the evidence.Conclusion Amended grounds of appeal were forwarded to the Court by facsimile during the morning upon which the matter was to be argued, along with an amended outline of argument. Counsel for the Director of Public Prosecutions, Mr A Kimber, did not object to the Notice of Appeal being amended to incorporate the recast grounds. An order to that effect was made. The appeal notice in this matter was filed well over two months after the conclusion of the appellant’s trial. Although an application for an extension was foreshadowed in the papers and an affidavit filed, the matter was not raised at the time of the hearing upon permission to appeal. Notwithstanding that fact, Mr Kimber indicated that no objection was taken to the extension of time.

Decision

Reasons for decision

KELLY J

In my view there was no danger that the jury might have misused the evidence.Conclusion Amended grounds of appeal were forwarded to the Court by facsimile during the morning upon which the matter was to be argued, along with an amended outline of argument. Counsel for the Director of Public Prosecutions, Mr A Kimber, did not object to the Notice of Appeal being amended to incorporate the recast grounds. An order to that effect was made. The appeal notice in this matter was filed well over two months after the conclusion of the appellant’s trial. Although an application for an extension was foreshadowed in the papers and an affidavit filed, the matter was not raised at the time of the hearing upon permission to appeal. Notwithstanding that fact, Mr Kimber indicated that no objection was taken to the extension of time. I would make the following orders:1.time within which to file a Notice of Appeal extended to 3 February 2010;2.appeal dismissed. WHITE J: I agree with the orders proposed by Vanstone J and with her reasons. I agree with the orders proposed by Vanstone J and with her reasons.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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