R v K, MC - [2018] SASCFC 133

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v K, MC
[2018] SASCFC 133
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)
13 December 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY - ADEQUACY OF WARNING - EVIDENCE OF CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
EVIDENCE - WITNESSES - SWEARING AND OATHS - CAPACITY IN GENERAL - YOUNG CHILDREN
Appeal against conviction – appellant charged with persistent sexual exploitation of a child – complainant and two other child witnesses were permitted to give unsworn evidence – whether the trial Judge failed to warn the jury as to the need for caution in the use of the unsworn evidence – whether the judge gave confusing and inadequate directions about corroboration.
Held, per Bampton J (Kourakis CJ and Stanley J agreeing) refusing permission to appeal on the appellant’s proposed second ground and dismissing the appeal:
1. The jury were directed correctly and appropriately;
2. No miscarriage of justice has occurred.
Evidence Act 1929 (SA) s 9, s 12A, s 13, s 13BA, referred to.
R v J, AP (2012) 113 SASR 529; R v Lomman (2014) 119 SASR 463; R v French (2012) 114 SASR 287; Perara-Cathcart v The Queen (2017) 260 CLR 595, considered.

R v K, MC
[2018] SASCFC 133
Court of Criminal Appeal: Kourakis CJ, Stanley and Bampton JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Bampton J.
I would emphasise that the courts cannot add to the statutory prescription of the directions which must be given to a jury when unsworn evidence is adduced in a trial. The directions in this case properly discharged the duty imposed by s 9(4) of the Evidence Act 1929 (SA) because the Judge explained why the evidence was unsworn and warned the jury of the need for caution. No further elaboration was required by the statute.
An omission to further explicate the reasons for admitting the evidence and the need for caution, in the way commended by the decisions of this Court may, on occasion, result in a miscarriage of justice but there has been no miscarriage of justice in this case. The jury would sufficiently have understood from the directions which were given that the need for caution arose because the testimony of children, who do not appreciate the solemnity of the occasion, grasp the importance of a criminal trial, or understand the consequences of giving false evidence may, for those reasons, not be as reliable as testimony which is affirmed or sworn.
STANLEY J: I would dismiss the appeal for the reasons given by Bampton J and the additional reasons of the Chief Justice.
BAMPTON J: Following…

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, MC

Details

AGLC: R v K, MC [2018] SASCFC 133
Case: [2018] SASCFC 133
Decision Date: 13 December 2018

CaseChat Overview and Summary

The appeal concerned a conviction for persistent sexual exploitation of a child. The appellant, R v K, was charged with offences against his stepdaughter, EV, who was between six and eight years old at the time of the alleged offending. EV, along with two other child witnesses, TW and SW, gave unsworn evidence at trial. The central dispute on appeal revolved around the adequacy of the trial judge's directions to the jury concerning the unsworn evidence and the issue of corroboration.

The legal issues before the court were whether the trial judge failed to adequately warn the jury about the need for caution when assessing the unsworn evidence of child witnesses, and whether the directions provided regarding corroboration were confusing and inadequate. Specifically, the appellant argued that the judge's statement that there was no corroborating evidence, followed immediately by a direction that the Evidence Act prohibited requiring corroboration, would have confused the jury. The appellant contended that the conviction rested entirely on EV's unsworn testimony and that the judge should have more clearly distinguished between EV's evidence and the evidence of other witnesses who testified to EV's complaints.

The court considered that the trial judge's direction, while referencing the absence of independent corroborating evidence, correctly conveyed to the jury that the prosecution's case relied solely on the truthfulness and accuracy of EV's evidence, thus necessitating careful scrutiny. The judge had also explained that the child witnesses did not understand the solemnity of an oath or affirmation, which the Director argued would have alerted the jury to the need for caution. The court found that the judge's directions, when read as a whole, adequately addressed the need for caution in assessing the unsworn evidence and the absence of corroboration.

Consequently, the court refused permission to appeal on the grounds relating to the directions on corroboration and unsworn evidence, and ordered that the appeal be dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Proposed ground 2 asserts that the Judge gave confusing and inadequate directions as to the nature and origin of the prosecution evidence by telling the jury that there was no evidence that could corroborate the complainant’s evidence, but then directing them that the Evidence Act 1929 (SA) (“the Act”) prohibited any requirement for corroboration.Background The appellant was charged with, between 1 March 2013 and 6 February 2016, having committed more than one act of sexual exploitation of his stepdaughter, EV. The complainant, EV, was aged between six and eight years at the time of the offending. EV’s mother was in a relationship with the appellant during the period of the offending. EV made an initial complaint to her friend, TW, in the presence of TW’s sister, SW, at TW and SW’s home on 6 February 2016. EV’s mother was informed of the disclosure and reported the matter to police. The appellant was arrested the following day.Pre-trial rulings During a voir dire, the appellant objected to the prosecution’s application for permission to lead evidence of EV’s two police interviews in the form of audio visual recordings pursuant to s 13BA of the Act on the ground that the trial Judge could not be satisfied of EV’s capacity to give sworn or unsworn evidence at the time of the interviews. The first interview was conducted on 7 February 2016 and the second on 9 July 2016. The Judge permitted the admission of the first audio visual record of interview (“the recorded interview”) but refused the admission of the second audio visual record of interview (“the second recorded interview”) on the ground that the interviewer, Detective Shepheard, did not emphasise the importance of telling the truth and did not obtain EV’s agreement that she would tell the truth. The prosecution was given permission to further examine EV in chief to elicit the contents of the second interview and the appellant was granted permission to cross‑examine on a limited number of topics.The evidence At trial, the prosecution called six witnesses: EV, TH (EV’s mother), TW, SW, TC (the father of TW and SW), and Detective Shepheard. EV was aged 10 at the time of trial. TW was aged nine and her sister, SW, was aged eight at the time of trial. The appellant gave evidence in his defence and denied committing any act of sexual exploitation against EV. Prior to EV, TW and SW giving evidence, the Judge conducted inquiries in in order to ascertain whether they each had sufficient understanding of the obligation to be truthful required for them to give sworn evidence pursuant to s 9 of the Act. The Judge determined that none of the children had the requisite understanding of the obligation, and found them each incapable of giving sworn evidence. The Judge satisfied himself that each of the children understood the difference between the truth and a lie. He told each child that it was important to tell the truth and each child indicated that she would tell the truth. Each child was permitted to give unsworn evidence transmitted to the courtroom via closed circuit television.

Evidence

Evidence Before The Court

The first interview was conducted on 7 February 2016 and the second on 9 July 2016. The Judge permitted the admission of the first audio visual record of interview (“the recorded interview”) but refused the admission of the second audio visual record of interview (“the second recorded interview”) on the ground that the interviewer, Detective Shepheard, did not emphasise the importance of telling the truth and did not obtain EV’s agreement that she would tell the truth. The prosecution was given permission to further examine EV in chief to elicit the contents of the second interview and the appellant was granted permission to cross‑examine on a limited number of topics.The evidence At trial, the prosecution called six witnesses: EV, TH (EV’s mother), TW, SW, TC (the father of TW and SW), and Detective Shepheard. EV was aged 10 at the time of trial. TW was aged nine and her sister, SW, was aged eight at the time of trial. The appellant gave evidence in his defence and denied committing any act of sexual exploitation against EV. Prior to EV, TW and SW giving evidence, the Judge conducted inquiries in in order to ascertain whether they each had sufficient understanding of the obligation to be truthful required for them to give sworn evidence pursuant to s 9 of the Act. The Judge determined that none of the children had the requisite understanding of the obligation, and found them each incapable of giving sworn evidence. The Judge satisfied himself that each of the children understood the difference between the truth and a lie. He told each child that it was important to tell the truth and each child indicated that she would tell the truth. Each child was permitted to give unsworn evidence transmitted to the courtroom via closed circuit television. The recorded interview was played to the jury and EV gave unsworn evidence-in-chief of the further incident that was detailed in the excluded recorded interview. EV described the type of sexual acts the appellant would perform on her or require her to perform. She said the acts were happening “a lot”, occurring “nearly every day” and that the last acts had occurred a few weeks prior to her interview on 7 February 2016. EV said the first occasion of sexual exploitation occurred while she, her mother, siblings and the appellant were living at the Marion Hotel. EV was about five, six, or seven years old when her family were staying at the Marion Hotel. EV said that the appellant “wee-ed” on her but she could not recall what else had happened. EV gave evidence of a particular occasion when the appellant held her upside down in the shower and performed cunnilingus on her while she performed fellatio on him. She also gave evidence of the circumstances in which the last occasion of sexual contact occurred at her family’s home at Christies Downs. She said that the appellant first took his clothes off and then hers. While she lay naked on the bed, the appellant stood at the end of the bed, leant over and licked her vagina. She described the appellant putting his penis in her mouth before he “wee-ed” on her.

Decision

Reasons for decision

I would refuse permission to appeal on proposed ground 2.Conclusion I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

The Director maintained that the jury could not have misunderstood that caution was required when assessing the unsworn evidence, because the Judge explained that EV, TW, and SW did not understand the solemnity attaching to the oath or affirmation and what it meant to be bound by an oath or an affirmation in court, which is an obligation that means more than simply telling the truth.Proposed ground 2 — the Judge gave confusing and inadequate directions regarding corroboration The appellant asserted that the direction given by the Judge in respect of corroboration was confusing and inadequate. It was submitted that the direction discussing corroboration was also made in response to defence counsel’s request for a direction, referred to above, that the jury scrutinise the complainant’s evidence with care. The Judge gave the following direction:[100]The evidence concerning the alleged offence and the source of the complaint is from one source only; namely, [EV]. In saying that, I am in no way disparaging that evidence. But a matter for you to take into consideration is that there is no other independent evidence that could corroborate the evidence of [EV] such as forensic evidence in one form or another, including DNA evidence. It is therefore necessary for you to scrutinise that evidence with care because the evidence led by the prosecution about the alleged offence is from one child between perhaps five and eight and who is now aged 10. When I give that age between five and eight, that is the potential age range of [EV] at the time that the offences are alleged to have occurred. You are to understand that this is not a direction that the evidence of the child witness requires to be corroborated. The Evidence Act forbids that approach. Here, I am directing the act of the alleged offence and the complainant’s memory is a matter that you may take into account in consideration of the charged offence. While the Judge referred to the absence of other independent evidence that could corroborate the complainant’s evidence, the appellant submitted that the introduction immediately thereafter of a direction that the Act prohibited warnings that it is unsafe to convict on a child’s uncorroborated evidence would have confused the jury. It was submitted that the Judge should have emphasised to the jury that the evidence of TW, SW and EV’s mother was only evidence that EV told other people. The appellant contended that the conviction is based entirely on the unsworn evidence of EV, who was between six and eight years old when the alleged offending occurred. The appellant asserted that the Judge’s failure to adequately direct in relation to the unsworn evidence and the absence of independent evidence where the prosecution case rose and fell on EV’s evidence has led to a miscarriage of justice.The Director’s submissions The Director submitted that the impugned direction in paragraph [100] of the summing up correctly brought home to the jury the fact that proof of the charge depended solely on the truth and accuracy of EV’s evidence and that, therefore, they should scrutinise it with care.