R v HS

Case [2004] SASC 300

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v HS

Judgment of The Court of Criminal Appeal

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

23 September 2004

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

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

Appellant accused of sexual abuse of nephew over a period of eleven years - appellant elected for trial by judge alone - charged with nine counts of sexual offences - convicted by trial judge over six counts of unlawful sexual intercourse - appeal against conviction - whether nephew had esoteric knowledge of accused's penis - whether evidence of uncharged acts admissible - whether trial judge used evidence of uncharged acts in deciding guilt on other counts - issue of cross-admissibility of evidence between the counts - whether trial judge gave herself adequate directions - whether Longman direction correctly issued - appeal allowed in part - retrial ordered.

Criminal Law Consolidation Act 1935 (SA) s 5, s 49(3), s 353; Evidence Act 1995 (Cth) s 34A; Criminal Procedure Act 1986 (NSW) s 33(2), referred to.
R v Keyte (2000) 78 SASR 68; R v Green (2001) 78 SASR 463; Longman v The Queen (1989) 168 CLR 79; R v Nieterink (1999) 76 SASR 56; R v RWB (2003) 87 SASR 256; R v ADW (2002) 84 SASR 178; Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162, applied.
R v BFB (2003) 87 SASR 278; Jago v District Court (NSW) (1989) 168 CLR 23; Jones v The Queen (1997) 191 CLR 439; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Ghys v Crafter [1934] SASR 28; Fleming v R (1998) 197 CLR 250, discussed.
Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Papps v Police (2000) 77 SASR 210; R v MacDonald (1995) 65 SASR 322; R v McKenzie [2001] SASC 279; R v Hatchard [1999] SASC 111; R v BWT (2002) 54 NSWLR 241; Dyers v R (2002) 210 CLR 285; R v K (1997) 68 SASR 405; Herron v McGregor (1986) 6 NSWLR 246, considered.

R v HS
[2004] SASC 300

Court of Criminal Appeal: Duggan, Besanko and Anderson JJ

  1. Duggan J              The facts of this matter are set out in detail in the reasons for judgment of Anderson J.

  2. There are two grounds of appeal upon which I wish to make particular comment.

    The issue of cross-admissibility

  3. The appellant complains that the trial judge failed to give adequate reasons as to how evidence relevant to one count was used as evidence tending to prove another count.

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Details
AGLC
R v HS [2004] SASC 300
Case
[2004] SASC 300
Decision Date

CaseChat Overview and Summary

In the case of R v HS, the appellant was convicted by a judge alone of six counts of unlawful sexual intercourse with his nephew over a period spanning from 1985 to 1989. The appellant appealed against his convictions, arguing several grounds, including the admissibility of evidence of uncharged acts and potential misdirections by the trial judge. The appeal was heard by Anderson J, who found merit in the appellant's claims.

The primary legal issues revolved around the admissibility and use of evidence of uncharged sexual acts, the trial judge's handling of this evidence, and whether there were any misdirections or omissions in the directions given to the jury. Specifically, the court examined whether the trial judge correctly assessed the relevance of the uncharged acts, if the evidence was correctly admitted, and whether the judge adequately directed herself on how the uncharged acts evidence could be considered in relation to the charged acts. The court also scrutinized the overall reasoning process of the judge in determining the appellant's guilt.

Anderson J allowed the appeal in part, concluding that the trial judge had erred in her analysis and use of the uncharged acts evidence. The judge failed to adequately address how the evidence of one count was used in relation to the other counts, and this omission constituted a legal error. Additionally, the judge's conclusions about the complainant's knowledge of the appellant's penis were found to be flawed. The court found that these errors warranted a retrial on the six counts where the appellant was found guilty. The judge's reasoning process, though generally adequate, was not flawless, leading to the necessity of a retrial to ensure a fair trial process.

In light of the above, the appeal was allowed in part, and the convictions were set aside. A retrial was ordered on counts 1, 2, 5, 6, 7, and 8, where the appellant had previously been found guilty. This decision underscores the importance of clear and precise judicial reasoning, particularly in cases involving complex evidence and multiple charges. The retrial aims to rectify the identified errors and ensure a fair assessment of the appellant's guilt or innocence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The first error made by the Judge was that she erred in law in failing to give reasons on the question of whether and how evidence on one count was used in relation to the other counts. The second error was that she erred in her analysis of evidence concerning a feature of the appellant’s penis and the conclusions she drew from that evidence.The evidence in relation to one count being used as evidence tending to prove another count. There were nine charges of unlawful sexual intercourse (s 49(3) of the CLCA) against the appellant. The appellant was found guilty in relation to six charges (counts 1, 2, 5, 6, 7 and 8) and not guilty in relation to the other three (counts 3, 4 and 9). The offences allegedly took place between April 1985 and April 1989, and involved the appellant causing the complainant to perform acts of fellatio on him, or the appellant performing acts of fellatio on the complainant. The complainant was the appellant’s nephew and he was born on 25th April, 1972. He was between 13 and 16 years of age at the time of the alleged offences. The prosecution alleged that the appellant performed a number of other indecent acts on the complainant and it led evidence of these acts. These other acts were referred to by the Judge as uncharged acts and I will also use that description. The evidence in relation to the uncharged acts varied in terms of the complainant’s ability to be precise as to matters such as the time at which they occurred and the places at which they occurred. The Judge was able to identify six incidents with a fair degree of precision, and those incidents occurred when the complainant was between five and 13 years of age. The Judge found that there were other incidents, but on the evidence it was difficult for the Judge to be precise as to when these occurred. The Judge admitted the evidence of the uncharged acts and she explained in her reasons how she proposed to use the evidence. She said that the evidence was relevant in a number of ways which she described as follows:“1.It was relevant to the issue of why D did not complain to any person during the whole of the period when these sexual acts took place and for many years afterwards.2.It helped to explain the ease with which the Accused carried out these acts with D and D’s preparedness on each occasion to cooperate with one exception being the occasion at the Clarendon Hotel.3.It helped to explain the context in which the first charged incident occurred, namely, the lack of any protest by D on the occasion when he and the Accused had gone for a drive in the Accused Valiant and were sitting in the front seat of the Valiant at or near the Port Noarlunga Soccer Oval.” The Judge made it clear that she would not reason that evidence of the uncharged acts was relevant to establish a propensity on the part of the appellant to act in the manner alleged in the nine charges against him. The Judge also said that the fact that the complainant was shown to be wrong in some of the details of the uncharged acts did not cause her to doubt the truthfulness and reliability of his evidence as to the essential matters described by him and relating to the sexual contact between him and the appellant. The Judge also said that the lack of particularity given by the complainant in relation to some of the incidents was to be explained by the fact that the acts occurred over a very long period of time when the complainant was between five and 16 years of age and by the fact that the acts happened frequently.

Decision

Reasons for decision

BESANKO J
In terms of her analysis of the evidence, I think the Judge gave adequate reasons and I do not think her reasoning was in any way flawed.Conclusions For the reasons I have given, I would allow the appeal and set aside the convictions. I would order a retrial on counts 1, 2, 5, 6, 7 and 8 in the Information.ANDERSON JBackground The accused was charged with nine counts of unlawful sexual intercourse with a person under the age of 17 years contrary to section 49(3) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). He elected to be tried by judge alone and entered a plea of not guilty. He was subsequently found guilty on six of the nine counts by a District Court judge. This is an appeal against his convictions. The act of intercourse alleged in each of the nine counts on the Information is an act of fellatio. This is within the definition of sexual intercourse under s 5 of the Act. In addition to the charged acts, the prosecution led evidence of a number of alleged uncharged sexual acts. Her Honour declined to exclude the evidence in relation to these acts. The complainant, D, was the accused’s nephew. He alleges that the conduct occurred during the time when he was between the ages of 5 and 16, that is from 1978 to 1988, although he didn’t make the first complaint until 1991. The timing of this first complaint is not disputed. At this time he was about 19 and living in Darwin with his girlfriend. He next complained to his grandmother in 1999. This was nearly 21 years after the first uncharged act and nearly 11 years after the last charged act. The charged acts were said to have occurred at various times between 1985 and 1987. In July 1999 he gave a statement to the Sexual Assault Unit at the South Australian Police Force. At the time of the trial D was 31 years old. I set out hereunder details of the nine counts relating to the charged acts, a brief summary of the evidence and my overview of the way the learned trial judge dealt with each count. I deal more fully with the details of each count later in these reasons when considering the grounds of appeal.Charged ActsCount 1: Particulars of Offence This charge relates to an incident alleged to have occurred between 24 April 1985 and 1 January 1988 near the Port Noarlunga Soccer Oval. D and the accused went for a drive in the accused’s car. The accused is alleged to have removed the centre console and placed it in the back seat. D then masturbated the accused and performed fellatio on him. D says that he also ejaculated and the accused cleaned it up with a black beanie. D recalled that this was one of the first times he had ejaculated during sexual acts with the accused. D gave very specific evidence in relation to the vehicle and in particular the centre console arrangement between the two front seats. The accused in his evidence had tendered photographs of what was said to be a similar vehicle but there was one important difference, there was an armrest in the vehicle in the photograph. The accused’s evidence about that aspect was found by her Honour to be unreliable and the evidence of D was accepted. It was not put to D that there was an armrest. In my view nothing has been demonstrated to be wrong in relation to her Honour’s acceptance of D’s version of events.Count 2: Particulars of Offence

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

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