R v H, Mg - [2008] SASC 264

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v H, MG
[2008] SASC 264
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice Kelly)
3 October 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS
Appellant convicted of four counts of indecent assault - appeal against conviction - complainant cross-examined generally on her history - alleged motive to lie about complaints not put to complainant in cross-examination or in closing address - trial judge directed jury not to speculate on a possible motive to lie - whether direction on motive to lie gave rise to a real risk of a miscarriage of justice.
Held: Because defence did not clearly suggest specific motive to lie in cross-examination or in closing address, the directions given on the evidence and on defence case as to not speculating about motive were appropriate and correct - appeal dismissed.
R v Sluczanowski [2008] SASC 185, distinguished.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Appellant sentenced to imprisonment for 4 years with a non-parole period of 2 years - permission to appeal against sentence - appellant was full-time carer for his 91-year-old mother - whether sentencing judge properly took into account effect of imprisonment on appellant's mother - whether sentence should have been suspended.
Held: Sentencing judge properly took into account all submissions relating to appellant's mother's health - appropriate balance between general deterrence and mitigating factors - appropriate exercise of discretion not to suspend sentence - permission to appeal refused.
R v Richard [2006] SASC 60, considered.

R v H, MG
[2008] SASC 264
Court of Criminal Appeal: Duggan, Anderson and Kelly JJ

DUGGAN J. I would dismiss the appeal against conviction and refuse permission to appeal against sentence. I agree with the reasons prepared by Anderson J.
ANDERSON J.
Introduction
The appellant was found guilty by a jury of four counts of indecent assault on the same complainant which took place between 1969 and 1975. The appellant was sentenced to a term of imprisonment of 4 years with a non-parole period of 2 years. The appellant appeals against his conviction for those offences and also seeks permission to appeal against the sentence which was imposed.
Background
The victim of the sexual assaults alleged against the appellant was his stepdaughter. The offending allegedly began when the complainant was about 6 years of age and ended when she was about 13 years of age. In addition to the four counts charged, the complainant also gave evidence of other uncharged acts of sexual abuse.
The appellant and complainant ceased contact in 1978, when she…

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, Mg

Details

AGLC: R v H, Mg [2008] SASC 264
Case: [2008] SASC 264
Decision Date: 3 October 2008

CaseChat Overview and Summary

The appellant, H, was convicted by a jury of four counts of indecent assault on his stepdaughter, occurring between 1969 and 1975, and was sentenced to imprisonment for 4 years with a non-parole period of 2 years. H appealed against his conviction and sought leave to appeal against the sentence imposed. The primary issue before the court was whether the trial judge’s direction to the jury to avoid speculating on any motive the complainant may have had to lie about her allegations constituted a misdirection that created a real risk of a miscarriage of justice.

The court considered whether the defence had adequately suggested a motive for the complainant to lie in their cross-examination of her or in their closing address. The complainant was cross-examined generally about her history, but the defence did not propose any specific motive for her to lie about the allegations of indecent assault. The trial judge directed the jury not to speculate on a possible motive to lie, given the absence of any suggestion of such a motive from the defence. The court held that the directions were appropriate and correct, as the defence had not presented any specific motive for the complainant to lie. Consequently, the court found no error in the trial judge’s direction and dismissed the appeal.

The court’s reasoning was based on the principle that the trial judge's directions to the jury were aligned with the evidence presented and the submissions made by the defence. Given that the defence did not propose any specific motive for the complainant to lie, the court upheld the trial judge’s direction as proper and found no misdirection that could have prejudiced the appellant’s case. The appeal against the conviction was therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant was found guilty by a jury of four counts of indecent assault on the same complainant which took place between 1969 and 1975. The appellant was sentenced to a term of imprisonment of 4 years with a non-parole period of 2 years. The appellant appeals against his conviction for those offences and also seeks permission to appeal against the sentence which was imposed.Background The victim of the sexual assaults alleged against the appellant was his stepdaughter. The offending allegedly began when the complainant was about 6 years of age and ended when she was about 13 years of age. In addition to the four counts charged, the complainant also gave evidence of other uncharged acts of sexual abuse. The appellant and complainant ceased contact in 1978, when she was 16 years of age. In 1999 the complainant confronted the appellant at Denial Bay on the west coast of South Australia and told him on that occasion that he had “fucked up her life”, but did not give details of how the appellant had done this. In relation to the counts of indecent assault, the complainant gave evidence of an incident which occurred at a house at Peterborough, where she, her mother and the appellant were living at the time. She said that she was lying in her bed when the appellant came into the bedroom and knelt alongside her bed. He put his hand under the blankets and quilt and placed it on her vagina. He tried to insert his finger inside her vagina. She felt his finger go inside her and she recalled that it was very uncomfortable. That incident took place in July 1969. The complainant identified it by reference to other events which occurred at that time. This incident was the first count of indecent assault, and at that time the appellant was 32 years old. The family moved to Myponga in around 1970. At that time the appellant was driving a milk tanker around the area. The complainant gave evidence that the sexual abuse resumed at Myponga. She said that it occurred regularly, and in particular on the nights that the appellant returned home from attending at the local hotel for a darts evening. She said that the appellant would sometimes lie on top of her and that she could feel his penis between her legs, but she does not recall any penetration. She said that the appellant would also put his hand under the blankets and would insert his fingers inside her vagina. On other occasions he would stay out of her bed and put his hand under the blankets and into her pants. In relation to the second count, the complainant said she was in the bath when the appellant knelt down and tried to wedge his hands between her legs. She said that the appellant tried to get his fingers into her vagina. The third count also involved an occasion at Myponga. At that stage her mother was absent in hospital. The appellant told the complainant that she had to sleep in her mother’s bedroom because her mother was away. She said that the appellant pulled her underwear down and that he placed his fingers on the outside of her vagina and then inside her vagina. She said that the appellant lay on top of her and rubbed his penis on her vagina, but she could not remember whether he had an erection or whether he ejaculated.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DUGGAN J (dissent) ANDERSON J (dissent) KELLY J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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