R v IK

Case [2004] SASC 280

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v I K

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Vanstone)

15 September 2004

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

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

Appeal against conviction - appellant was convicted of one count of indecent assault, one count of procuring an act of gross indecency, five counts of unlawful sexual intercourse and two counts of common assault - whether trial Judge erred in refusing to exclude forensic evidence - whether trial Judge gave adequate directions to jury concerning forensic evidence - whether trial Judge's directions to jury as to uncharged acts were adequate - whether trial Judge erred by failing to direct jury that they must be satisfied beyond reasonable doubt of occurrence of uncharged acts - whether trial Judge erred in his directions to jury concerning delay between acts in question and trial - whether trial Judge erred in directions to jury concerning the credibility of complainant - whether trial Judge erred in failing to direct jury as to esoteric knowledge - whether trial Judge erred by failing to direct jury as to use that a finding of guilt in relation to common assault charges could be put when considering other charges - appeal dismissed.

R v Nieterink (1999) 76 SASR 56; R v T (1999) 74 SASR 486; Gipp v The Queen (1998) 194 CLR 106; R v FJB [1999] 2 VR 425; R v Ball [1911] AC 47; R v R (1998) 198 LSJS 119; R v Brusnahan CCA 5 November 1993, Judgment S4246 (unreported); R v Clifford (2004) 233 LSJS 157; Edwards v R (1993) 178 CLR 193, discussed.
Hoch v The Queen (1988) 165 CLR 292; Pfennig v The Queen (1995) 182 CLR 461; R v Sciberras (2003) 226 LSJS 473; KRM v The Queen (2000) 206 CLR 221; R v Tedesco (2003) 85 SASR 66; BRS v The Queen (1997) 191 CLR 275; R v Kostaras (2002) 222 LSJS 373; R v RWB (2003) 87 SASR 256; R v BFB (2003) 87 SASR 278; R v Corrigan (1998) 74 SASR 454; Makin v The Attorney-General for New South Wales [1894] AC 57; Shepherd v R (1990) 170 CLR 573; R v Dolan (1992) 58 SASR 501, considered.

R v I K
[2004] SASC 280

Court of Criminal Appeal:          Doyle CJ, Perry and Vanstone JJ

  1. DOYLE CJ           The appellant was tried before a jury in the District Court.  He was tried on an Information containing nine counts.  The counts comprised one count of indecent assault,…

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AGLC
R v IK [2004] SASC 280
Case
[2004] SASC 280
Decision Date

CaseChat Overview and Summary

In the case of R v IK, the appellant contested his conviction on multiple charges, including indecent assault, procuring an act of gross indecency, unlawful sexual intercourse, and common assault. The trial court had found the appellant guilty on all counts, leading to this appeal. The appellant raised several grounds for appeal, primarily focusing on the trial judge's handling of forensic evidence, the adequacy of jury directions concerning uncharged acts, and other alleged errors in the trial judge's instructions to the jury.

The central legal issues in this appeal involved whether the trial judge erred in refusing to exclude certain forensic evidence, whether the judge adequately directed the jury about the forensic evidence and uncharged acts, and if the judge's instructions to the jury on various aspects of the trial were sufficient. Specifically, the appellant argued that the trial judge did not properly instruct the jury to consider uncharged acts only if they were satisfied beyond reasonable doubt, failed to direct the jury about the delay between the alleged acts and the trial, did not sufficiently address the credibility of the complainant, and omitted to inform the jury about esoteric knowledge and the relevance of a finding of guilt in relation to common assault charges when considering other charges.

The court reviewed the trial judge's handling of the evidence and instructions to the jury. The court found that the trial judge did not err in refusing to exclude the forensic evidence, as it was relevant and could assist the jury in understanding the context of the allegations. Regarding the uncharged acts, the court held that the trial judge correctly directed the jury that they should be satisfied beyond reasonable doubt of the truth of the evidence of these acts before considering them. The court also determined that the trial judge's other directions to the jury were adequate, and there was no miscarriage of justice due to any deficiencies in those directions or other aspects of the trial. Consequently, the court dismissed the appeal.

The final orders of the court were to dismiss the appeal against the appellant's convictions on all counts. The court found that the trial had been conducted fairly and that the jury's findings were supported by the evidence and proper legal directions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant was convicted on all counts. He has appealed against the convictions. He challenges the decision by the trial Judge not to exclude evidence of the findings on forensic examination of certain items taken from his home. He complains on the ground of inadequacy of directions to the jury relating to evidence of uncharged acts by the appellant, and he complains about certain other directions that the Judge gave to the jury. He also complains that he has suffered a miscarriage of justice because of one aspect of the cross-examination of a witness, and because of the cumulative effect of what are said to be deficiencies in the Judge’s directions and certain other features of the trial.The charges and the evidence K was born on 4 October 1986. She came to Australia in about 1992 after her mother had married the appellant. She lived with the appellant and her mother. All offences are alleged to have occurred at the family home. K said that when she was about 11 years old the appellant began punishing her by hitting her on the face and arms, and around the ribs. My impression from the evidence is that the appellant had not done this before, or perhaps that there was, according to K, a noticeable change in the degree of physical punishment about this time. K’s evidence was that the appellant often punished her in this way. Count one is a charge of indecent assault, alleged to have occurred between 1 January 1998 and 31 December 1999. It is alleged that K was about 12 years of age at the time. K said that this was the first occasion on which the appellant touched her in a sexual fashion. She alleged that he touched her on the breasts. Count two is a charge of procuring an act of gross indecency. It is alleged to have been committed between 1 January 1998 and 31 December 1999, when K was about 12 years of age. This occurred not long after count one. It was the second occasion on which the appellant dealt with her in a sexual manner. K said the appellant placed her hand on his penis. As is common in such cases, K’s evidence about when each count occurred was vague. In most cases she was unable to give more than an indication of the approximate date. K said that she did not tell anyone about these incidents or other incidents. She did not think anyone would believe her. Nor did she trust anyone. As she said in evidence, if she could not trust her father, whom could she trust? Count three is a charge of unlawful sexual intercourse, alleged to have occurred between 4 October 1999 and 4 October 2000. K was about 13 years at the time. K was showering when the appellant came into the bathroom. As she dried herself he began to masturbate himself, and then put his finger in her vagina. He ejaculated on his leg, and wiped himself with a handkerchief. K said that there were other occasions when something sexual occurred in the bathroom, but this was the only occasion that she could identify now. However, a little later she said that she could not remember other incidents in the bathroom, leaving it unclear whether her evidence was that there were other such incidents.

Decision

Reasons for decision

DOYLE CJ PERRY J VANSTONE J (dissent)
The appellant has had a trial according to law, and overall a fair trial. It was open to the jury to find him guilty as they did.Conclusion For all those reasons the appeal should be dismissed. In my view, the appeal should be dismissed. I agree with the reasons of Doyle CJ. I add some comments of my own on the question of the standard of proof of uncharged acts of sexual misconduct. During the course of argument, Ms Abraham QC of counsel for the respondent, submitted that the recent decision of this Court in R v Clifford[1] is, on this question, inconsistent with R v Sciberras.[2][1] [2004] SASC 104.[2] [2003] SASC 103, (2003) 226 LSJS 473. Properly understood, there is no inconsistency between the two cases. Clifford was a case where the uncharged acts extended over a period of some eleven years, when the complainant was between about 7 and 18 years of age. The acts progressed from indecent touching and rubbing to full sexual intercourse at about the age of 10 years, and continued regularly thereafter throughout the whole of the period. Not surprisingly, the complainant could not remember many specific incidents with much particularity, and in the main could speak only in general terms of a developing course of conduct. Her evidence of the general course of conduct was held to be relevant:“[39] … to understand the nature of the relationship that had developed between the complainant and the appellant over a period of eleven years between the first act charged and the last act charged. It established an ongoing sexual attraction of the appellant towards the complainant. It established how she was introduced to sexual practices, and it explained why she had said nothing about the conduct. It was capable of explaining why the appellant was confident that he could continue his relationship with J without her disclosing his conduct to others. The jury were invited to conclude that the reason why J was unable to be precise as to dates was because of the number of occasions on which the acts had occurred.” In that case, this Court held on appeal that despite the fact that the complainant was unable to describe the course of conduct with any degree of particularity, the evidence of the course of conduct was admissible. The court held further that although the evidence of the uncharged acts may not have been an indispensable link in the chain of proof, the trial judge correctly directed the jury that they should not act on the evidence of the uncharged acts unless the jury was satisfied beyond reasonable doubt of the truth of the evidence. Although the appellant made no complaint about that direction, the appellant submitted that:“[43] … if each uncharged act must be proved beyond reasonable doubt, then the inability of the complainant to give other than the most general description of each act leads to the inevitable result that each uncharged act could not be proved beyond reasonable doubt, rendering the conviction unsafe and unsatisfactory”.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ, PERRY J,

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