SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUMBLE
[2009] SASC 51
Judgment of The Court of Criminal Appeal
(The Honourable Justice White, The Honourable Justice Kelly and The Honourable Justice Kourakis)
27 February 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR OFFENCES
Appeal against conviction - appellant charged with seven counts of a sexual nature in relation to a young girl - convicted by a jury of two counts of unlawful sexual intercourse with a person under the age of twelve years contrary to s 49(1) of the Criminal Law Consolidation Act 1935 - grounds of appeal alleged that trial judge's directions inadequate in relation to recent complaint - Longman warning - effect of prior inconsistent statements - motive to lie and other matters.
Held by majority (Kelly and Kourakis JJ, White J dissenting): - although trial judge's directions contained defects, they did not cause a miscarriage of justice - appeal dismissed.
Criminal Law Consolidation Act 1935 s 49(1); Evidence Act 1929 s 34, s 34M, s 12(a); Statutes Amendment (Evidence and Procedure) Act 2008 s 22, referred to.
The Queen v Gallagher (1986) 41 SASR 73; R v Corrigan (1998) 74 SASR 454; Jones v The Queen (1997) 71 ALJR 538; Breen v The Queen (1976) 180 CLR 233, applied.
Palmer v The Queen (1998) 193 CLR 1, distinguished.
R v Sluczanowski [2008] SASC 185; R v E (1996) 39 NSWLR 450; R v Tanda (1986) 43 SASR 161; R v Wilson (1986) 42 SASR 203, discussed.
Kelleher v The Queen (1974) 131 CLR 534; R v Corkin (1989) 50 SASR 580; R v Roissetter [1984] 1 Qd R 477; Daniels v The Queen (1989) 1 WAR 435; R v Stoupas [1998] 3 VR 645; Kilby v The Queen (1973) 129 CLR 460; R v Lillyman [1896] 2 QB 167; R v Uhrig (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, 24 October 1996, Judgment No. 60200 of 1996); R v Noonan [1998] VSCA 8; R v Freeman [1980] VR 1, considered.
R v HUMBLE
[2009] SASC 51Court of Criminal Appeal: White, Kelly and Kourakis JJ
WHITE J: The circumstances of this appeal are set out in the reasons of Kelly and Kourakis JJ.
The appeal, and the application for permission to appeal in respect of two further grounds, raise the following issues:
1(a) Whether the complaint of the complainant to her mother said to have been made five days after the incident alleged at Henley Beach was admissible as evidence of recent complaint;
(b) If so, whether the trial Judge’s directions concerning the recent complaint evidence in relation to the Henley Beach incident were adequate.
2Whether the trial Judge’s directions concerning inconsistent statements by…
Continue reading R v Humble
Sign in free to access the full text
Details
- AGLC
- R v Humble [2009] SASC 51
- Case
- [2009] SASC 51
- Decision Date
CaseChat Overview and Summary
The appellant, who was convicted of two counts of unlawful sexual intercourse with a minor, challenged his conviction in the Court of Criminal Appeal. The appellant argued that the trial judge’s directions to the jury regarding the admissibility and weight of the complainant’s evidence, inconsistencies in her statements, the Longman warning, the prosecutor’s comments on motive, and the evidence of the complainant’s sister were inadequate, leading to a miscarriage of justice. The majority of the Court of Criminal Appeal found that although the trial judge’s directions contained defects, they did not cause a miscarriage of justice and dismissed the appeal.
The primary legal issues before the Court of Criminal Appeal were whether the trial judge's directions regarding the complainant's evidence, inconsistencies in her statements, the Longman warning, the prosecutor's comments on motive, and the evidence of the complainant’s sister were adequate and whether any deficiencies in these directions amounted to a miscarriage of justice. The Court had to determine if the directions were sufficient to guide the jury properly in assessing the credibility of the complainant’s evidence and the other related issues. The appellant argued that the inadequate directions led to a miscarriage of justice, warranting a retrial. The Crown contended that the directions were adequate and did not prejudice the appellant.
The Court of Criminal Appeal found that while the trial judge’s directions had some defects, they were not so deficient as to cause a miscarriage of justice. The majority held that the directions allowed the jury to consider all relevant aspects of the complainant's evidence and the other issues properly. The Court acknowledged that the directions could have been clearer but found that they did not prejudice the appellant to the extent that a retrial was necessary. The dissenting judge, however, believed that the inadequate directions on the recent complaint and motive were significant enough to warrant a retrial. The majority concluded that the appeal should be dismissed as the errors did not amount to a miscarriage of justice.
The Court of Criminal Appeal dismissed the appeal against the appellant’s conviction, holding that the trial judge’s directions, despite their defects, did not result in a miscarriage of justice. The majority did not find the errors to be substantial enough to warrant a retrial, while the dissenting judge believed that the inadequate directions on the recent complaint and motive necessitated a retrial.
The primary legal issues before the Court of Criminal Appeal were whether the trial judge's directions regarding the complainant's evidence, inconsistencies in her statements, the Longman warning, the prosecutor's comments on motive, and the evidence of the complainant’s sister were adequate and whether any deficiencies in these directions amounted to a miscarriage of justice. The Court had to determine if the directions were sufficient to guide the jury properly in assessing the credibility of the complainant’s evidence and the other related issues. The appellant argued that the inadequate directions led to a miscarriage of justice, warranting a retrial. The Crown contended that the directions were adequate and did not prejudice the appellant.
The Court of Criminal Appeal found that while the trial judge’s directions had some defects, they were not so deficient as to cause a miscarriage of justice. The majority held that the directions allowed the jury to consider all relevant aspects of the complainant's evidence and the other issues properly. The Court acknowledged that the directions could have been clearer but found that they did not prejudice the appellant to the extent that a retrial was necessary. The dissenting judge, however, believed that the inadequate directions on the recent complaint and motive were significant enough to warrant a retrial. The majority concluded that the appeal should be dismissed as the errors did not amount to a miscarriage of justice.
The Court of Criminal Appeal dismissed the appeal against the appellant’s conviction, holding that the trial judge’s directions, despite their defects, did not result in a miscarriage of justice. The majority did not find the errors to be substantial enough to warrant a retrial, while the dissenting judge believed that the inadequate directions on the recent complaint and motive necessitated a retrial.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Before dealing with the arguments on appeal, it is necessary to refer to the facts in so far as they are relevant to each of the identified grounds. Background The prosecution case was based on the evidence of the complainant, her sister, their mother and two childhood friends of the complainant. The prosecution alleged a course of conduct against the appellant including the seven charged counts of a sexual nature, as well as a number of uncharged sexual acts which occurred during the time when the appellant was in a relationship with the complainant’s mother. The events the subject of count 1 occurred late in 1988 during a family visit to Henley Beach. The complainant’s evidence was that during horseplay with her on the beach the appellant moved aside her bathers and licked her vagina. She said that she did not tell her mother about this incident until about five days later. The evidence of her mother was to the effect that the complainant informed her very shortly after the incident at the beach that she had been touched on her private parts by the appellant. The mother spoke to the appellant about the incident, and although she was not able to say exactly when or where she spoke to him, her recollection was that he had indicated that it was an accident. The appellant testified that he recalled an incident at Henley Beach when his face came into contact with the complainant’s crotch. He gave an explanation that it was an entirely innocent incidental touching. The appellant testified that he was not confronted by the mother about that incident until several weeks later and that was only after the children’s father had telephoned the mother. The appellant was convicted of this count. The events the subject of count 2 are alleged to have occurred in 1989 at the home of a friend of the appellant in Black Forest. At the date of the trial that friend was deceased. The events the subject of count 3 were alleged to have occurred at the complainant’s grandmother’s house at Christies Beach on New Years Day in 1990. In that incident the appellant allegedly instructed the complainant and her cousin, to simulate sexual intercourse with each other. The events the subject of count 4 allegedly occurred on a houseboat at Berri in about January 1990 during a holiday weekend with friends including the complainant’s brother, sister, mother and her brother’s friend. The appellant was acquitted of counts 2, 3 and 4. The events the subject of counts 5 and 6 occurred at the family home at Klemzig. There was evidence that the complainant and her sister shared bunk beds in the bedroom. Both the complainant and her sister gave evidence to the effect that the appellant often came into the bedroom at night and got into bed with the complainant. Count 5 relates to a particular incident recalled by the complainant after a night out when the family had been to the Feathers Hotel. The allegation was that the appellant performed cunnilingus on the complainant as she lay in her bed after their return home from the hotel that night. The complainant’s sister was present, sleeping in the bunk bed above.
Evidence
Evidence Before The Court
I consider therefore that this ground of appeal should be upheld.The Directions Concerning the Evidence of the Complainant’s Sister I agree with the reasons of Kelly and Kourakis JJ concerning this ground. Conclusion In my opinion, it should be held that there was a miscarriage of justice in the trial. If the absence of a direction concerning motive had been the only error in the summing up, there would have been a question in my mind as to whether that was sufficient to amount to a miscarriage of justice. However, it is not necessary to consider that as I regard the inadequate direction on the topic of recent complaint as particularly important in the context of this trial. The jury must have had some doubts about the reliability of the complainant’s evidence as they found the appellant not guilty on four Counts and were unable to reach a verdict on another. The two guilty verdicts were majority verdicts. The evidence of recent complaint was important because it was evidence, which was independent of the complainant, by which her credibility could be bolstered. It was particularly important therefore that the jury be properly directed as to the matters to be addressed before it could use the evidence in that way. I do not consider that this is a case for the application of the proviso. Accordingly, I would allow the appeal and would set aside the convictions on Counts One and Five. I would order a retrial on those Counts.KELLY and KOURAKIS JJ:Introduction The appellant was found guilty by jury verdict of two counts of unlawful sexual intercourse with a girl under the age of twelve years contrary to section 49(1) of the Criminal Law Consolidation Act 1935 (SA). He was acquitted of five other charges of a sexual nature allegedly committed against the same girl. The complainant was born in 1979. The appellant formed a relationship with the complainant’s mother. The case against him was that all seven offences with which he was charged occurred during the course of that relationship when the complainant was between nine and thirteen or fourteen years old. Permission to appeal was granted by a single judge in respect of six grounds. The appellant seeks permission to appeal in respect of two grounds refused by the single judge. The appellant’s main arguments centred around five issues. The first issue was whether the evidence of the complaint made by the complainant to her mother was admissible at the trial and if it was, whether the learned trial judge’s directions with regard to the complaint were in error. Secondly, the appellant argued that the trial judge failed to give any real assistance to the jury in relation to certain out of court statements made by the complainant to a doctor in the light of the fact that there were material inconsistencies between what the complainant said to the doctor, what she said in court and what she said to the police about certain topics. Thirdly, the appellant argued that the warning (commonly referred to as the Longman warning) given by the trial judge in respect of the complainant’s evidence, was inadequate. The fourth issue was that the trial judge failed to direct the jury against any impermissible reasoning by virtue of the prosecutor’s comment in addresses on the topic of the suggested motive that the complainant had to lie. Finally, the appellant contended that the trial judge’s directions were inadequate in alerting the jury to some of the defects in the evidence of the complainant’s sister.
Decision
Reasons for decision
I agree with the reasons of Kelly and Kourakis JJ concerning this ground. Conclusion In my opinion, it should be held that there was a miscarriage of justice in the trial. If the absence of a direction concerning motive had been the only error in the summing up, there would have been a question in my mind as to whether that was sufficient to amount to a miscarriage of justice. However, it is not necessary to consider that as I regard the inadequate direction on the topic of recent complaint as particularly important in the context of this trial. The jury must have had some doubts about the reliability of the complainant’s evidence as they found the appellant not guilty on four Counts and were unable to reach a verdict on another. The two guilty verdicts were majority verdicts. The evidence of recent complaint was important because it was evidence, which was independent of the complainant, by which her credibility could be bolstered. It was particularly important therefore that the jury be properly directed as to the matters to be addressed before it could use the evidence in that way. I do not consider that this is a case for the application of the proviso. Accordingly, I would allow the appeal and would set aside the convictions on Counts One and Five. I would order a retrial on those Counts.KELLY and KOURAKIS JJ:Introduction The appellant was found guilty by jury verdict of two counts of unlawful sexual intercourse with a girl under the age of twelve years contrary to section 49(1) of the Criminal Law Consolidation Act 1935 (SA). He was acquitted of five other charges of a sexual nature allegedly committed against the same girl. The complainant was born in 1979. The appellant formed a relationship with the complainant’s mother. The case against him was that all seven offences with which he was charged occurred during the course of that relationship when the complainant was between nine and thirteen or fourteen years old. Permission to appeal was granted by a single judge in respect of six grounds. The appellant seeks permission to appeal in respect of two grounds refused by the single judge. The appellant’s main arguments centred around five issues. The first issue was whether the evidence of the complaint made by the complainant to her mother was admissible at the trial and if it was, whether the learned trial judge’s directions with regard to the complaint were in error. Secondly, the appellant argued that the trial judge failed to give any real assistance to the jury in relation to certain out of court statements made by the complainant to a doctor in the light of the fact that there were material inconsistencies between what the complainant said to the doctor, what she said in court and what she said to the police about certain topics. Thirdly, the appellant argued that the warning (commonly referred to as the Longman warning) given by the trial judge in respect of the complainant’s evidence, was inadequate. The fourth issue was that the trial judge failed to direct the jury against any impermissible reasoning by virtue of the prosecutor’s comment in addresses on the topic of the suggested motive that the complainant had to lie. Finally, the appellant contended that the trial judge’s directions were inadequate in alerting the jury to some of the defects in the evidence of the complainant’s sister.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.