R v Jones

Case [2018] SASCFC 80

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v JONES

[2018] SASCFC 80

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Lovell)

15 August 2018

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

Appeal against conviction.

After a trial before a jury in the District Court, the appellant was convicted of 4 counts and acquitted of 6 counts of unlawful sexual intercourse allegedly committed between 1981 and 1983 when the complainant was aged between 14 and 16 and under the care of the Department of Community Welfare but residing close to or in the same house as the appellant.

Evidence was adduced by the prosecution from the complainant that the first person that she told about the detail of the specific incidents of sexual intercourse or fellatio of which she gave evidence was a police officer to whom she spoke, implicitly in January 2015 shortly before the appellant was charged. The complainant also gave evidence of a discussion with a detective investigating an unrelated matter, implicitly in or before 1983, and a lawyer in 1997 about her being in a sexual relationship with the appellant. Evidence was adduced from another police officer which suggested that the complainant gave a statement or evidence to the Royal Commission into Institutional Responses to Child Sexual Abuse before speaking to a police officer in January 2015.

During closing address defence counsel referred to the fact that the Department of Community Welfare had left the complaint living with the appellant for two and a half years and there was no suggestion of any issues there about sexual conduct. On objection by the prosecutor that this offended against s 34M(2) of the Evidence Act 1929, the Judge ruled that it was not permissible to attack the credit of the complainant by submitting that, while she complained about violence by the appellant, she did not complain about the sexual relationship.

At the request of counsel, the Judge gave some but not all of the directions to the jury mandated by s 34M(4) of the Evidence Act. The Judge also directed the jury that it was impermissible for the jury to reason that, because the complainant did not report sexual offending to anyone until she went to the police many years later, that was damaging to her credibility.

The appellant appeals by permission on four grounds:

1.  the Judge erred in directing the jury as to the burden of proof;

2.  the Judge failed to direct the jury properly in relation to use of any doubt as to the evidence of the complainant on a particular count in respect of other counts;

3. the…

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R v Jones [2018] SASCFC 80
Case
[2018] SASCFC 80
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction against the appellant, Mr. Jones, for sexual offences against a complainant, LC. The dispute arose from the appellant's assertion that the trial judge erred in their directions to the jury regarding evidence, specifically concerning mandatory directions under the Evidence Act and the handling of complaint evidence. The appeal was heard by Kelly, Blue, and Lovell JJ.

The primary legal issues before the court were whether the trial judge failed to provide mandatory directions required by sections 34M(4)(a)(ii) and 34M(4)(c) of the Evidence Act, and whether the directions given concerning complaint evidence were incorrect and prejudicial to the appellant. The appellant argued that these alleged misdirections and non-directions constituted a miscarriage of justice.

The court allowed the appeal on the fourth ground, which related to the judge's directions. While the specific reasoning for allowing this ground is not fully detailed in the provided text, it is noted that the prosecutor insisted on a specific direction correcting defence counsel's earlier submission, which the court found unnecessary and undesirable given the ambiguity of the initial comment and the clarity of counsel's subsequent explanation to the jury. This suggests the court found the judge's handling of this matter to be problematic.

Consequently, the court set aside the convictions and remitted the matter to the District Court for a fresh trial.

Orders

Orders of the court

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Background

Background to the litigation

Permission to appeal on all grounds was granted by a single Judge. At the hearing of the appeal, the appellant sought leave, which was not opposed, to add a further ground of appeal complaining that the Judge erred in not giving the mandatory directions that were required under s 34M(4)(a)(ii) and s 34M(4)(c) of the Evidence Act and that the directions that were given in respect of complaint evidence were incorrect and prejudicial to the appellant. Background Before discussing each ground of appeal it is necessary to set out in some detail the evidence at trial. The evidence of LC LC was born in 1967. She gave evidence in relation to her care and living arrangements between 1981 and 1983. She gave evidence about uncharged as well as charged acts. LC gave evidence that she was taken into care in 1981, first residing at a temporary accommodation facility near the deli. The deli was owned and operated by the appellant. His residence adjoined the deli. After beginning a sexual relationship with the appellant, LC moved into the residence. At the time the appellant’s aunt Ruby Milne (Ms Milne) and her daughter Angela lived there. For a time Ruby’s son Ricky Milne and her husband George Milne also lived there. Initially LC and the appellant occupied one bedroom (the second bedroom) furnished with two single beds. Ruby and Angela resided in the front bedroom. At some stage the Milnes moved out and LC and the appellant moved into the front bedroom which had been occupied by his aunt and cousin. That bedroom was furnished with a double or queen bed. At about the time that the Milnes moved out, George and Ricky Milne were charged with an unrelated murder. The detective in charge of the murder investigation spoke to LC in the course of that investigation. LC gave evidence that she took steps to conceal the sexual relationship she had with the appellant during visits from officers from the Department of Community Welfare. They presented the bedroom as though it were not shared by them. While she worked at the deli, LC did not receive wages or cash payments but was remunerated with chocolate, cigarettes and meals from the deli. Charged acts The first count was alleged to have occurred before LC moved into the appellant’s residence. She was 14 years old at the time. LC gave evidence that at some stage during daylight hours she went into the second bedroom where the appellant was sitting or standing on one of the beds near the doorway. He pulled his penis out and LC ended up on her knees facing the appellant between his legs. At that stage she observed his penis to be erect and noticed a raised lump on the glans of his penis. She estimated the lump to be “a couple of centimetres” in size, “a bit discoloured and kind of elliptical shaped, egg shaped”. She queried the lump with the appellant who said something to the effect of “don’t worry about that” and explained that he was injured by a wind-up toy when he was younger. LC then performed oral sex on the appellant and he ejaculated in her mouth. She re-dressed and returned to the deli. She said that as she exited the second bedroom there were two other people in the back room of the deli. One was Ms Milne and the other was Dianne Edwards. Ms Edwards was called as a witnesses at trial by the prosecution. The jury returned a unanimous verdict of guilty on this count.

Evidence

Evidence Before The Court

Before discussing each ground of appeal it is necessary to set out in some detail the evidence at trial. The evidence of LC LC was born in 1967. She gave evidence in relation to her care and living arrangements between 1981 and 1983. She gave evidence about uncharged as well as charged acts. LC gave evidence that she was taken into care in 1981, first residing at a temporary accommodation facility near the deli. The deli was owned and operated by the appellant. His residence adjoined the deli. After beginning a sexual relationship with the appellant, LC moved into the residence. At the time the appellant’s aunt Ruby Milne (Ms Milne) and her daughter Angela lived there. For a time Ruby’s son Ricky Milne and her husband George Milne also lived there. Initially LC and the appellant occupied one bedroom (the second bedroom) furnished with two single beds. Ruby and Angela resided in the front bedroom. At some stage the Milnes moved out and LC and the appellant moved into the front bedroom which had been occupied by his aunt and cousin. That bedroom was furnished with a double or queen bed. At about the time that the Milnes moved out, George and Ricky Milne were charged with an unrelated murder. The detective in charge of the murder investigation spoke to LC in the course of that investigation. LC gave evidence that she took steps to conceal the sexual relationship she had with the appellant during visits from officers from the Department of Community Welfare. They presented the bedroom as though it were not shared by them. While she worked at the deli, LC did not receive wages or cash payments but was remunerated with chocolate, cigarettes and meals from the deli. Charged acts The first count was alleged to have occurred before LC moved into the appellant’s residence. She was 14 years old at the time. LC gave evidence that at some stage during daylight hours she went into the second bedroom where the appellant was sitting or standing on one of the beds near the doorway. He pulled his penis out and LC ended up on her knees facing the appellant between his legs. At that stage she observed his penis to be erect and noticed a raised lump on the glans of his penis. She estimated the lump to be “a couple of centimetres” in size, “a bit discoloured and kind of elliptical shaped, egg shaped”. She queried the lump with the appellant who said something to the effect of “don’t worry about that” and explained that he was injured by a wind-up toy when he was younger. LC then performed oral sex on the appellant and he ejaculated in her mouth. She re-dressed and returned to the deli. She said that as she exited the second bedroom there were two other people in the back room of the deli. One was Ms Milne and the other was Dianne Edwards. Ms Edwards was called as a witnesses at trial by the prosecution. The jury returned a unanimous verdict of guilty on this count. The second count was also alleged to have occurred before LC moved into the appellant’s residence. LC gave evidence that this incident occurred in September 1981 when she was about 14 years of age and that it happened some weeks after the first incident of oral sex the subject of count 1. At the time Ms Milne, and possibly Ms Edwards and Angela, were present inside the house. LC went into the second bedroom where she was encouraged to rub the appellant’s penis on the outside of his jeans. The contact between the two escalated. They kissed and the appellant had her place her hand on his penis. There was pre-ejaculate discharge coming from his penis. He then pushed his penis into her vagina. The third count was alleged to have occurred a few months after LC moved into the appellant’s residence. LC gave evidence that this incident took place in the deli behind the counter at a time when the appellant stored guns in that location. She was wearing a long skirt, a t-shirt and no underwear. LC had penile-vaginal intercourse with the appellant on the floor behind the counter. She was not sure whether she or the appellant was on top; however she described the carpet as scratchy and itchy and remembered that she suffered carpet burn. The appellant ejaculated and they quickly got back to normal. LC said anyone who came through the front door of the deli would have to have been right up against the counter to have seen anything going on behind the counter. She also said that there was a high pitched alarm that went off as people walked through the front door. The jury by majority convicted the appellant on this count.

Decision

Reasons for decision

Finally, we note that, despite the explanation ultimately given to the jury by defence counsel which cured the problem on any view, the prosecutor later insisted that the Judge give a specific direction correcting counsel’s earlier submission. Given the ambiguous nature of the initial comment and the clarity of counsel’s later explanation to the jury, it was in our view unnecessary and undesirable for the Judge to consider giving any direction during the summing up about counsel’s earlier remark.Conclusion For the above reasons, we allowed the appeal on ground 4, set aside the convictions and remitted the matter to the District Court for a fresh trial.

Ratio Decidendi

Legal Principle Established

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