R v K - [1997] SASC 6193

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

DOYLE CJ, LANDER AND BLEBY JJ

Criminal law - jurisdiction, practice and procedure - summing up - juries --appeal against conviction - appellant convicted of indecent assault - directions to jury - delay in complaint - whether direction regarding inferences open to jury as to credit of complainant required - both the delay and the circumstances of the complaint called for a clear warning by the trial judge - the failure to warn about the delay and about the circumstances of the complaint constituted an error of law. Longman v R (1989) 168 CLR 79; Crofts v R (1996) 70 ALJR 917, applied.

Criminal law - jurisdiction, practice and procedure - summing up - whether jury were indequately directed as to the use they could and could not make of evidence - submission rejected - direction was adequate. R v Dolan (1992) 58 SASR 501, applied.

Criminal law - jurisdiction, practice and procedure - summing up - whether trial judge erred in law by telling jury, in summing up, of their power to return a majority verdict after they had been deliberating for at least four hours - submission rejected - impractical to conceal from the jury knowledge of what the law provides in this respect - Parliament has given the jury power to return a majority verdict and that power cannot and should not be withheld from them. Cheatle v The Queen (1993) 177 CLR 541, discussed. Rusovan v The Queen (1994) 62 SASR 86, considered.

Criminal law - jurisdiction, practice and procedure - summing up - whether verdict unsafe or unsatisfactory - submission rejected.

Criminal law - jurisdiction, practice and procedure - summing up - whether retrial should be ordered - in the particular circumstances this was a case where a verdict of acquittal was appropriate rather than a retrial - convictions quashed - convictions substituted for an acquittal.

ADELAIDE, 20 May 1997 (hearing), 13 June 1997 (decision)

#DATE 13:6:1997

Representation:

Appellant:

Counsel: Mr D H Peek

Solicitors: Peter J Duffy

Respondent:

Counsel: Ms W J Abraham

Solicitors: DPP (SA)

Order: appeal allowed.

DOYLE CJ

Introduction

1. This is an appeal against conviction.

2. The appellant was charged with two counts of indecent assault upon B, his nephew, contrary to s56 of the Criminal Law Consolidation Act. He was further charged with two counts of unlawful sexual intercourse with B, a person under twelve years of age, contrary to s49(1) of the Criminal LawConsolidation Act.

3. At the time of the first alleged offence, B was probably almost ten years of age. At the time of the other three offences he was probably between ten and eleven years of age. Because of some confusion about the dates of the offences, it is possible that B was a year older than the ages just given by me.

4. The jury convicted the appellant on counts 1 and 2, the two counts of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v K

Details

AGLC: R v K [1997] SASC 6193
Case: [1997] SASC 6193
Decision Date: 13 June 1997

CaseChat Overview and Summary

The Court of Criminal Appeal of South Australia heard an appeal against conviction brought by the appellant, who was convicted of two counts of indecent assault on his nephew, B. The appellant was acquitted on two counts of unlawful sexual intercourse. The grounds of appeal included the trial judge's failure to adequately warn the jury about the significance of the delay in B's complaint and deficiencies in the prosecution case, inadequate directions about the use of evidence of other acts of indecency, and the trial judge's comments about the jury's power to return a majority verdict. The Court found that the trial judge's failure to warn the jury about the delay in complaint and the circumstances of the complaint constituted an error of law. The Court also found that the trial judge adequately directed the jury on the use of evidence of other acts of indecency, and that there was no undesirable emphasis on the jury's power to return a majority verdict. The Court quashed the convictions and substituted an acquittal on counts 1 and 2, taking into account the appellant's already served sentence and the potential loss of forensic benefits on retrial.

The Court was unanimous in allowing the appeal and setting aside the convictions. However, Lander and Bleby JJ agreed with Doyle CJ's substitution of an acquittal on counts 1 and 2, while Bleby J disagreed and called for a retrial on those counts. Bleby J argued that a retrial was necessary to remedy the faulty direction and that the evidence was sufficient to support a conviction if properly instructed.

Orders