R v Hare

Case [2007] SASC 427

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HARE

[2007] SASC 427

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice Bleby and The Honourable Justice Vanstone)

7 December 2007

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

Appellant convicted of two counts of indecent assault and acquitted of a third upon same 12 year old complainant - whether verdicts inconsistent.  Held:  verdicts not such as to indicate factual inconsistency and therefore not unreasonable.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION

Whether judge should have directed jury that a doubt entertained in respect of one count should be brought to account in deliberations on other counts.  Held:  no such direction required.

Consideration of directions given regarding use of evidence of each count in relation to others - whether directions inherently inconsistent - whether directions too restrictive.  Held:  directions unnecessarily restricted use of evidence but to that extent were favourable to the appellant.

Discussion of whether propensity direction necessary - such a direction not required in a case of this nature.

Criminal Law Consolidation Act 1935 (SA), s 353(1), referred to.
MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; R v Hoskins [2007] SASC 92, (2007) 169 A Crim R 325; R v Liddy (2002) 81 SASR 22; R v B, P [2006] SASC 229; R v Tedesco (2003) 85 SASR 66, applied.
R v KWG [2000] SASC 398; R v Markuleski (2001) 52 NSWLR 82, not followed.
Longman v The Queen (1989) 168 CLR 79; R v Schlaeffer (1984) 37 SASR 207; R v Armstrong (1990) 54 SASR 207; KRM v The Queen (2001) 206 CLR 221, considered.

R v HARE
[2007] SASC 427

Court of Criminal Appeal:  Nyland, Bleby and Vanstone JJ

  1. NYLAND J:          I agree that the appeal should be dismissed for the reasons expressed by Vanstone J.  I have nothing further to add.

  2. BLEBY J:             I agree that the appeal should be dismissed for the reasons given by Vanstone J. 

    VANSTONE J:

    Introduction

  3. Jeffrey Peter Hare was tried in the District Court for three counts of indecent assault said to have been committed upon the same complainant on three different occasions.  He was convicted of the first two counts only.  He now appeals against those convictions, arguing that the verdicts are inconsistent and also complaining of the directions given to the jury as to the use that might be made of the evidence of one count in considering the others.

    Background

  4. The conduct for which the appellant was convicted took place in the year 2000, when the complainant, whom I shall call “V”, was about 12 years of age. 

  5. The first offence occurred during the school holidays…

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AGLC
R v Hare [2007] SASC 427
Case
[2007] SASC 427
Decision Date

CaseChat Overview and Summary

The case of R v Hare involves an appeal by Jeffrey Peter Hare against his convictions on two counts of indecent assault on a single complainant, who shall be referred to as V. The trial took place in the District Court, and Hare now contests the verdicts on the grounds of inconsistency and the manner in which the trial judge instructed the jury on the use of evidence from one count in considering the others. The events in question occurred in 2000 when V was approximately 12 years old, and the incidents took place on three separate occasions: during a school holiday at a caravan park, at a friend's house, and on a houseboat trip. Hare was acquitted of the third count but found guilty of the first two.

The primary legal issues before the court were whether the verdicts were inconsistent and whether the jury was properly directed regarding the use of evidence from one count in relation to the others. The court examined the trial judge's instructions to the jury, specifically a "propensity warning" given despite the lack of a clear requirement for such a direction in cases with multiple counts involving the same victim. The court also considered whether the directions given to the jury were misdirections and whether they could have influenced the jury's verdict.

In evaluating the appeal, the court noted that while the trial judge provided a propensity warning, it was not strictly necessary. The court referenced the decision in R v Tedesco, where it was held that a propensity warning is not required in every case with multiple charges against the same victim. The court found that any misdirection regarding the use of evidence was, in fact, favourable to the appellant, as it potentially could have mitigated against the appellant's conviction. The court concluded that neither ground of appeal was successful, as the verdicts were not unreasonable or insupportable, and any misdirection did not prejudice the appellant to a significant degree.

The appeal was dismissed, and the convictions on the first two counts were upheld. The court found that the trial judge's directions, despite any perceived shortcomings, did not undermine the validity of the jury's verdicts. The evidence presented was sufficient to support the convictions, and the court determined that the appeal did not meet the threshold for overturning the jury's findings.

Orders

Orders of the court

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Background

Background to the litigation

Jeffrey Peter Hare was tried in the District Court for three counts of indecent assault said to have been committed upon the same complainant on three different occasions. He was convicted of the first two counts only. He now appeals against those convictions, arguing that the verdicts are inconsistent and also complaining of the directions given to the jury as to the use that might be made of the evidence of one count in considering the others.Background The conduct for which the appellant was convicted took place in the year 2000, when the complainant, whom I shall call “V”, was about 12 years of age. The first offence occurred during the school holidays at the end of the second term, when V and his school friend Jack, Jack’s mother and the accused were staying briefly together in a caravan park near Morgan. That this trip took place was not disputed. During that holiday the appellant and V went into Morgan on an errand and then visited a disused railway station, where the offence took place. Jack’s mother gave evidence confirming the appellant’s request that V accompany him on the errand. She said it should have taken about 30 minutes and that upon their return she had expressed displeasure at their extended absence. She was told by the appellant to mind her own business. Count 2 occurred on a weekend of the third school term at Jack’s house. The appellant and V were left alone there for a short time. The conduct took place in the living room. While neither Jack nor Jack’s mother recalled the particular occasion when the appellant and V were left alone, there was evidence confirming that such opportunities had existed. V described in some detail how the conduct was interrupted by the sight of Jack approaching the front door of the house and the appellant’s response to that. The complainant’s evidence was that the third indecent assault occurred on an occasion when he went with Jack, Jack’s mother and the appellant on a houseboat trip, departing from Chowilla Station. They were away for five days and four nights. The complainant gave evidence that on the second day when he and the appellant were at the rear of the houseboat, Jack was inside and his mother was at the front of the boat, the appellant asked him to sit on his lap and started rubbing his groin. Then, later in the afternoon, they were again at the back of the boat while the others were inside and he was again asked to sit on the appellant’s lap. On this occasion V said that the appellant put his hand in V’s pants and started rubbing his penis. In evidence as to the third count V said he thought his thirteenth birthday (9 September) occurred during this trip. He thought that the appellant had given him a present – a box of Warhammer figurines – on that day, but he acknowledged that the present might not have come to him on the very day. It was suggested to V in cross-examination (but not proved) that the school holidays in that year did not start until 15 September. Jack’s mother, Mrs Chamberlain, gave evidence to the effect that the houseboat trip in fact occurred just after Christmas in that year. Mrs Chamberlain did not recall the appellant giving V a present during the trip at all. Nor did Jack, although he thought it was “quite possible”. In cross-examination V conceded that the trip could have occurred at Christmas time, rather than around his birthday, and that the figurines could have been a Christmas present.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The judge went on to give the jury what has been called a “propensity warning”. Whilst I offer no criticism of him for so doing, it is doubtful that such a warning was required. In R v Tedesco (2003) 85 SASR 66, Doyle CJ considered this question in the context of an information containing two counts of rape on one occasion, and criminal trespass and assault on another, upon the same complainant. He gave close consideration to the judgments in R v Schlaeffer (1984) 37 SASR 207, R v Armstrong (1990) 54 SASR 207 and KRM v The Queen (2001) 206 CLR 221. Doyle CJ concluded that there was no immutable rule calling for a propensity warning in such cases. The Chief Justice said, at [19]:… it cannot be said, in my view, that the law of Australia requires that a propensity warning or direction be given in all cases in which the accused is charged with multiple counts involving the same victim, and evidence on each count is admissible on each other count. In particular, it cannot be said that such a direction is always required even though the prosecution case does not rest on what I will for convenience call ‘similar fact reasoning’ or ‘improbability reasoning’. In Tedesco’s case counsel argued that the jury should have been told not to reason from any finding of guilt in respect of either pair of charges that the appellant had a propensity to commit offences, sexual or otherwise, against the complainant. The Chief Justice, with whose reasons Duggan and Gray JJ agreed, concluded that no such direction was called for.Conclusion Neither ground of appeal is made out. Insofar as there was any misdirection as to use of evidence of one count in respect of other counts, it was favourable to the appellant. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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