R v H, GJ - [2008] SASC 274

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v H, GJ
[2008] SASC 274
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Kourakis)
17 October 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
The appellant was tried in the District Court on six counts of sexual offending relating to two victims on six different occasions - trial Judge ruled no case to answer on one count - trial Judge properly directed jury to consider each alleged offence separately and that verdicts are not required to be the same for each count - each count related to different occasions and most counts related to different forms of sexual offending - jury returned verdicts of guilty on three of the remaining counts and not guilty on two counts - appellant appealed to the Full Court of the Supreme Court against the Jury's guilty verdicts on the ground that they were unreasonable by reason of inconsistency between the verdicts of guilty and not guilty.
Held: appeal dismissed - test of unreasonableness of jury's verdicts by reason of inconsistency is one of irrationality and burden of establishing it is on appellant - the verdicts were not inconsistent because they could be rationally explained having regard to the evidence.
Criminal Law Consolidation Act 1935 (SA) s 49, s 58 and s 270A, referred to.
MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; M v The Queen (1994) 181 CLR 487, applied.
R v JA [2008] VSCA 169, discussed.
Jones v The Queen (1997) 191 CLR 439, considered.

R v H, GJ
[2008] SASC 274
Court of Criminal Appeal: Doyle CJ, White and Kourakis JJ

DOYLE CJ: I would dismiss the appeal against the convictions recorded in the District Court. I agree with the reasons given by Kourakis J. There is nothing that I wish to add.
WHITE J: In my opinion, the appeal should be dismissed. I agree with the reasons of Kourakis J.
KOURAKIS J:
Introduction
The appellant was tried in the District Court on five counts of sexual offending against DBF and one count against BG. DBF and BG are cousins. All six counts related to different occasions. The Trial Judge ruled that there was no case to answer on one of the counts relating to DBF. The jury returned verdicts of guilty on three of the remaining counts and acquitted the appellant of the other two. The appellant has appealed on the ground that the guilty verdicts of the jury are unreasonable by reason of inconsistency between the verdicts of guilty and not guilty, and on the ground that they cannot be supported by the evidence. Although there is some ambiguity in the way in which the grounds are expressed, ultimately the appellant did not pursue the ground…

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 H, GJ

Details

AGLC: R v H, GJ [2008] SASC 274
Case: [2008] SASC 274
Decision Date: 17 October 2008

CaseChat Overview and Summary

The case of R v H, GJ involved the appellant, who was convicted on three counts of sexual offences against two victims. The trial judge ruled no case to answer on one count, and the jury returned verdicts of guilty on three counts and not guilty on two others. The appellant appealed to the Full Court of the Supreme Court, challenging the guilty verdicts on the ground that they were unreasonable due to inconsistency with the not guilty verdicts. The key issue before the court was whether the jury's verdicts were irrational and inconsistent, and if so, whether this justified overturning the verdicts.

The court considered the test for unreasonableness by reason of inconsistency, which required the appellant to demonstrate that the verdicts were irrational. The burden of proving this was on the appellant. The court examined the evidence and found that the verdicts could be rationally explained. The acquittal on count five was understandable given that the jury accepted the account of the assault on BG but found the charge not proved beyond reasonable doubt due to conflicting evidence from BG and DBF regarding the nature of the sexual offending on that occasion. The court concluded that it was reasonable for the jury to consider the possibility of error by BG or DBF regarding the events of that specific occasion, while still accepting their evidence about the appellant's overall course of sexual offending.

Having found that the verdicts were not inconsistent or irrational, the court dismissed the appeal. The verdicts of guilty on counts two, four and six did not affront common sense in light of the not guilty verdicts on counts one and five. The court held that the jury's decision was rational and based on the evidence presented. Consequently, the appeal was dismissed, and the convictions on the three counts were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The acquittal of the appellant on count five is readily explicable on the basis that the jury accepted the description by DBF of the sexual assault committed on BG but were not prepared to find that charge proved beyond reasonable doubt because BG himself gave evidence that the appellant had engaged in sexual intercourse, not with him, but with DBF. Plainly it was open to the jury to allow for the possibility that BG or DBF were mistaken about the sexual offending that had occurred on that particular occasion, even though they accepted the evidence of both of them that the appellant had engaged in a course of sexual offending against them.Conclusion For the above reasons it cannot be said that the verdicts of guilty on counts two, four and six are an affront to common sense having regard to the verdicts of not guilty on counts one and five. The verdicts are not unreasonable. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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