R v Frederick

Case [2004] SASC 404

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v FREDERICK

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)

7 December 2004

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - PARTICULARS

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT

Appellant charged with one count of indecent assault and four counts of unlawful sexual intercourse alleged to have been committed upon his step-daughter between 1 January 1983 and 1 October 1983 - appellant convicted of indecent assault and an act of unlawful sexual intercourse alleged in count 5 of the information - acquitted on other counts - appeal against convictions - prosecution claimed that mother of complainant witnessed the act of intercourse charged in count 5 - widely divergent versions given by complainant and mother as to circumstances of act of intercourse including location - whether prosecution required to elect as to version on which count based - alternatively, whether prosecution required to further particularise the act of sexual intercourse relied upon - whether jury instructed as to an identifiable occasion to support charge - whether direction to jury that it was unnecessary to decide upon location of offence was correct - whether jury verdict on count 5 was uncertain.  Left open to jury to use conviction on count 5 to support allegation of offence of indecent assault charged in count 1 - whether verdict on count 1 can stand.

Held: Appeal allowed.  Convictions on counts 1 and 5 set aside and retrial ordered.

Consideration of the adequacy of the directions to the jury on evidence led to establish a complaint in relation to the count of indecent assault.

Consideration of whether the verdicts of guilty in relation to the indecent assault and one count of unlawful sexual intercourse should be set aside on the ground that they are inconsistent with the jury’s verdicts of not guilty in relation to the other counts.

Consideration of whether certain passages in the trial judge’s summing-up wrongly suggested that the evidence of the complainant's mother was capable of corroborating the complainant's evidence as to the count of unlawful sexual intercourse.

The appellant sought leave to appeal on a ground refused by a single judge – whether comments made by the trial judge removed from the jury the decision as to whether the complaint did establish consistency - leave to appeal on this ground refused.

S v The Queen (1989) 168 CLR 266; The Queen v Pfitzner (1976) 15 SASR 171; R v Liddy (2002) 81 SASR 22

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Details
AGLC
R v Frederick [2004] SASC 404
Case
[2004] SASC 404
Decision Date

CaseChat Overview and Summary

The appellant in this case was convicted of one count of indecent assault and one count of unlawful sexual intercourse involving his step-daughter. The appellant appealed against his convictions on several grounds. The primary legal issues addressed by the court included whether the prosecution was required to elect the version of events on which the count was based, whether the prosecution needed to further particularise the act of sexual intercourse, whether the jury was correctly instructed, and whether the verdict on the count of unlawful sexual intercourse was uncertain. Additionally, the court considered whether the verdict on the count of indecent assault could stand if the conviction on the count of unlawful sexual intercourse was overturned.

The court found that the prosecution was not required to elect between the differing versions of the events provided by the complainant and her mother. The prosecution's approach, which focused on the last occasion of sexual intercourse without specifying a location, was deemed acceptable. The court also determined that the jury had been adequately instructed and that the verdict on the count of unlawful sexual intercourse was not uncertain. However, the court found that the direction given to the jury that it was unnecessary to decide upon the location of the offence was incorrect. This misdirection could potentially have influenced the jury's decision. Consequently, the conviction on the count of unlawful sexual intercourse was deemed unreasonable or insupportable, leading to its quashing. Given that the conviction on the count of indecent assault relied on the conviction of the count of unlawful sexual intercourse, the court also quashed the conviction on the count of indecent assault.

The court quashed both the conviction for unlawful sexual intercourse and the conviction for indecent assault, leading to the appellant's acquittal on these counts. The appeal was allowed, and the convictions were set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

K said that after this incident the appellant took her home. J was there when they arrived. She said she thought the appellant went back to the office. Her mother then put it to her that the appellant had sex with her. She said she denied having intercourse with the appellant and her mother told her to pack her bags and go before the appellant came back to the house. K denied that she had sexual intercourse with the appellant at any time in the house at Gilles Plains.J’s evidence J gave evidence to the effect that she became suspicious that the appellant might have been involved sexually with K and she decided to see if she could observe any such behaviour. She said that one Friday she told K and the appellant that she was going out to see a film, but she did not do so and returned home to Gilles Plains at about 7.00 pm. She said she looked in through the lounge room window and saw K lying on the floor of the lounge. She said the appellant was having intercourse with K. J said she was in an hysterical state. She said she knocked on the door and the appellant opened it. She pushed past him. She told K to go to her bedroom. There was no discussion between J and the appellant about the incident on that evening. J said that on the following day she asked K if she would like to live with her father or her sister. K said she wanted to live with her sister and arrangements were made for her to go there. The appellant gave evidence. He denied having sexual intercourse with K on any occasion. He admitted kissing her from time to time, but denied that any of these incidents were accompanied by circumstances of indecency.Discussion about count 5 before the prosecution opening address It is important to examine the conduct of the trial in so far as it related to the charge alleged in count 5. The conflicting versions to be relied upon by the prosecution in support of count 5 prompted some discussion between the trial judge and counsel prior to the prosecution opening. During the discussion defence counsel put to the court that, at some stage, the prosecution would be forced to an election as to the act which the prosecution relied upon to support the charge alleged in count 5. The prosecutor replied that this act could be identified as “the last occasion” upon which K said that she and the appellant had intercourse. In his opening address the prosecutor had this to say about count 5:“Then, what K will tell you was the last occasion that they had sexual intercourse, she will say was at the office and this last occasion of sexual intercourse is the occasion the subject of count five on the information, the last charge. However, for reasons that I’ll come to a little later this afternoon, there is some conflict in this trial, and there will be some conflict in the evidence, about where the final occasion of sexual intercourse between K and the accused actually took place.. . .As I have already suggested, the prosecution distinguishes count five from other charges before you because this was the last occasion that sexual intercourse took place between K and the accused.This is the charge about which there is a conflict in terms of where the incident took place. K will tell you that the last time that she had sexual intercourse with the accused was again, at the office premises. J, K’s mother, and the woman that the accused later married and who was living with her daughter K and the accused at the house at Gilles Plains at the time, will give evidence, and she will tell you that she saw an occasion of sexual intercourse, but she saw it taking place at the house.I will tell you, first, about K’s version of how this act of sexual intercourse, the last occasion of sexual intercourse, took place, count five. As I have said, K will tell you that it took place at the office and after she had gone there in order, on the face of it, to do the cleaning. K will tell you that sexual intercourse took place by the accused placing her penis into her vagina and this was the last time, as I’ve said.It was the last time not because either K or the accused really themselves brought this improper relationship to an end, but because they were caught by K’s mother, J. K will tell you that this last act of sexual intercourse took place somewhere on the floor of the office; as I say, at the office premises.. . .As I’ve already touched upon, J will tell you about this incident or about what must have been, on the prosecution case, that last occasion of sexual intercourse. It’s important that you know about what J will tell you, because she will tell you that she did catch the accused and her daughter having sexual intercourse, but says that she caught them not at the office premises but actually at the house at Gilles Plains.. . .Clearly ladies and gentlemen, there will be in the evidence a substantial difference between what K will tell you about this last occasion of sexual intercourse and where it took place, and what J will tell you. The difference of course is the location.As I have said, K will tell you that it took place at the office, J will tell you that she saw it take place at the house. She doesn’t know of course for herself that it was the last occasion but she will tell you, as K will tell you, that after this last occasion, after being caught, K left the house and never returned.On the prosecution case with respect to count 5, they must be talking about the same incident although given the passage of time, someone has become confused about where it took place. The prosecution says that it was certainly the last occasion because as I have said, K left the house either that day on her account or the next day on her mother’s account.While that difference is of course significant, ultimately the prosecution will suggest at the conclusion of this trial that it is explicable in all of the circumstances. Perhaps the obvious emotion of what happened and the mere passage of time, some 21 or so years since this incident is alleged to have taken place, there might be other explanations. Those explanations are for another time.What is important ladies and gentlemen, is that I make it plain that the prosecution says that count 5 relates to what K will tell you was the last time that she had sexual intercourse with the accused. The prosecution says that if ultimately you find beyond reasonable doubt that there was a last time that K and the accused had sexual intercourse, and that following the last time she left the Gilles Plains house, then the prosecution says that that will be sufficient for the accused to be guilty of that charge.The prosecution says that it does not matter where that incident took place ultimately. The law does not require the prosecution to prove that any charge took place at a particular location. What is important is that each charge can be distinguished from any other. The last charge, count 5, the prosecution seeks to distinguish by the fact that K will tell you that it was the last occasion that she had sexual intercourse with the accused.It does not matter the prosecution will suggest to you ultimately where it took place, so long as you are satisfied that there was in fact a last time.”

Decision

Reasons for decision

BLEBY J ANDERSON J

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Ratio Decidendi

Legal Principle Established

Established by: BLEBY J, ANDERSON J

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