R v Hansen - [2002] SASC 208

R V HANSEN
[2002] SASC 208
Court of Criminal Appeal: Doyle CJ, Perry and Lander JJ

DOYLE CJ. I would allow the appeal and set aside the verdicts on Counts 6, 7 and 8. I would order that a verdict of acquittal be entered in respect of those counts. I agree with the reasons given by Lander J for making those orders. There is nothing that I wish to add to those reasons.
I agree generally with the observations made by Perry J and by Lander J in relation to counsel for the defence being permitted to address the jury on the issues in the case, after the prosecution opening, as occurred in this case.
PERRY J. I have had the benefit of reading in draft the reasons for judgment of Lander J. I agree with all of the conclusions which he reaches and with the reasons which he gives for those conclusions, except on the issue of inconsistent verdicts.
Before dealing with that aspect of the matter, I add some further comments as to the question of an opening by defence counsel.
Having regard to the terms of s 288A(2) of the Criminal Law Consolidation Act 1935, it would only be proper for the defendant, or counsel for the defendant, to open if he or she proposes to call evidence at the trial. Furthermore, I agree that in such a case the opening should be confined to a summary or outline of the evidence which is to be called or to use the words of the section, to outline the case for the defence. It should not be used as an occasion upon which counsel may, in advance of final addresses, make general submissions or present argument.
Furthermore, s 288A(2) only permits an opening address by the defendant at the conclusion of the evidence for the prosecution. It does not confer a right on the part of the defendant to address the court at any earlier stage.
Apart from the right conferred by s 288A(2) to outline the case for the defence at the conclusion of the Crown case, counsel for a defendant may be permitted, by leave of the judge, to make a statement to the court at the conclusion of the opening by counsel for the Crown and before any evidence is called. The making of any such statement is not something which would come within the scope of the right conferred by the section. It would be a matter which would require the leave of the trial judge.
Furthermore, in permitting such a course to be taken, the trial judge should be astute to ensure that the situation is not abused by counsel for the defendant attempting to give an advance instalment of his or her final address.
To avoid confusion, I think it better not to describe such a statement as an “opening”. An “opening” of the defence case could not be given before the Crown case has been closed. It may then be…

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 Hansen

Details

AGLC: R v Hansen [2002] SASC 208
Case: [2002] SASC 208
Decision Date: 24 September 2002

CaseChat Overview and Summary

The appeal in R v Hansen concerns the admissibility of evidence used in a trial involving multiple counts of sexual offences. The appellant was jointly charged with another individual, Mr Roach, on the first three counts, while the remaining counts were against the appellant alone. The appellant argued that the trial judge did not adequately direct the jury on how to use the evidence from the joint counts when considering the remaining counts against the appellant alone. The appellant contended that the trial judge should have warned the jury that if they did not find a common purpose between the appellant and Mr Roach, the evidence could not be used against the appellant in respect of the remaining counts. Alternatively, the jury should have been directed that the evidence was only evidence from which it might be inferred that the appellant had a sexual interest in the victim.

The legal issues before the court were whether the trial judge adequately directed the jury on the use of evidence from the joint counts against the appellant alone and if the trial judge should have warned the jury that if they did not find a common purpose between the appellant and Mr Roach, the evidence could not be used against the appellant in respect of the remaining counts. The court considered whether the trial judge's direction to the jury was sufficient and whether it was necessary to provide further direction on the use of evidence from the joint counts against the appellant alone. The court also considered whether the trial judge should have warned the jury that if they did not find a common purpose between the appellant and Mr Roach, the evidence could not be used against the appellant in respect of the remaining counts.

The court found that while it would have been preferable if the trial judge had identified the evidence led in respect of counts one to three which was admissible against the appellant in respect of the further counts, it was not necessary to do so. The court held that the trial judge's direction to the jury was sufficient and that it was not necessary to provide further direction on the use of evidence from the joint counts against the appellant alone. The court also held that it was not necessary for the trial judge to warn the jury that if they did not find a common purpose between the appellant and Mr Roach, the evidence could not be used against the appellant in respect of the remaining counts.

No further orders were made by the court. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Leave will be sought when the accused’s counsel believes that it is in his or her client’s best interests to indicate the issues in dispute at an early stage. I do not wish to be seen to be discouraging co-operation between the accused and the Crown which can ease the jury’s deliberations. However, I do believe that the accused’s counsel should not be permitted to make what in effect is a closing speech in circumstances where they have no right to open.Ground 1: Use of Evidence Admissible on Counts One, Two and Three on the Other Counts On the first three counts the accused was jointly charged with Mr Roach. It was the Prosecution case that the appellant and Mr Roach had a common purpose which was that Mr Roach would have sexual relations with MWJR including sexual intercourse. The trial judge, in his summing up to the jury, referred to the prosecution case and that, insofar as the appellant was concerned, the prosecution was required to establish a common purpose of the kind alleged by the prosecution. He said that the prosecution needs to establish that the appellant was aware that some form of sexual misconduct would occur or that it was within his contemplation that there was a possibility of some form of sexual contact between MWJR and Mr Roach. He then said:“It was briefly touched on the fact that when you’re considering this evidence, and the evidence in its totality, if you accept what has been put to you that, in fact, Mr Hansen was not, and could not, be seen as a joint offender, then the evidence which you find proved beyond a reasonable doubt concerning conduct between MWJR and Mr Hansen on that day, at any time, can be used by you when considering the remainder of the charges.” The appellant has complained on this appeal as to the adequacy of that direction. The appellant has contended that the trial judge was under an obligation to direct the jury as to how they might use the evidence on counts one, two and three in a consideration of the further counts on which the appellant alone was charged. It was put that the trial judge should have warned the jury that if they did not find a common purpose between the appellant and Mr Roach the evidence could not be used against the appellant in respect of the remaining counts at all. In the alternative the jury should have been directed that the evidence was only evidence from which it might be inferred that the appellant had a sexual interest in MWJR. It was submitted that in particular the evidence that the appellant encouraged MWJR to have a bath and later provided him with marijuana was particularly damaging and needed to be subject matter of a direction. It would have been better if the trial judge had identified the evidence led in respect of counts one to three which was admissible against the appellant in respect of the further counts. It would have been better if the trial judge had directed the jury about the use of that earlier evidence on those later counts. It would have also been preferable if the trial judge had indicated the manner in which the evidence could be used. In this case it could not have been used except for establishing that the appellant had a sexual interest in MWJR from the outset.

Decision

Reasons for decision

DOYLE CJ PERRY J LANDER J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ, PERRY J,

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