R v K, MC - [2009] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v K, MC
[2009] SASC 141
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice David)
21 May 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
Appellant convicted of sexual offences against his two daughters and another child (A) - evidence that one of the charges against A occurred in the presence of the two sisters - one of the sisters gave further evidence that on a number of occasions she had observed the appellant committing a further charged act and numerous uncharged acts on A - appellant argues that a miscarriage of justice resulted from the trial judge's failure to order a separate trial for the charges against A - in particular appellant argues that evidence of the sisters was more prejudicial than probative in relation to the charges against A.
Held: Decision not to order separate trial on A's charges correct - no error made by the trial judge in directing jury as to proper use of evidence of charged and uncharged acts and as to impermissible use - appeal dismissed.
HML v The Queen (2008) 235 CLR 334; R v IK (2004) 89 SASR 406, applied.
De Jesus v The Queen (1986) 61 ALJR 1; Gipp v The Queen (1998) 194 CLR 106; R v Nieterink (1999) 76 SASR 56, considered.

R v K, MC
[2009] SASC 141
Court of Criminal Appeal: Vanstone, Anderson and David JJ

VANSTONE J: After a trial before a judge and jury in the District Court, the appellant was convicted of sexual offences committed against his two daughters and another child, A. He now appeals on three grounds. He argues that a miscarriage of justice resulted from the trial judge’s failure to order a separate trial for the charges against the unrelated girl. He also complains of two specific directions given by the trial judge as to the use that could be made of evidence of one complainant in considering the charges concerning another.
Background
It is important to notice at the outset that there was no objection at any stage to a joint trial of the offences against the two sisters, whom I shall call B and C. On a number of occasions each was present during the commission of offences against the other, some of those being charged and others not. That alone would justify a joint trial of those charges.
In addition, it should be noted that the prosecution did not present its case on the basis that any of the evidence established a general propensity in the appellant to commit such offences. The jury was warned not to reason in that way. Rather, the argument, as to the admissibility of A’s evidence in a joint trial and the directions to the jury, focussed on particular acts, attested to, or not attested…

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 [2009] SASC 141
Case: [2009] SASC 141
Decision Date: 21 May 2009

CaseChat Overview and Summary

The appellant was convicted of multiple sexual offences against his two daughters and another child, referred to as A. The appellant argued that a miscarriage of justice occurred because the trial judge did not order separate trials for the charges against A. Specifically, he argued that evidence from his daughters regarding A's charges was more prejudicial than probative. The Court of Appeal held that the decision to not separate the trial was correct and that no error was made by the trial judge in directing the jury on the proper use of evidence of charged and uncharged acts. The appeal was dismissed.

The primary legal issue before the court was whether the trial judge erred in failing to order separate trials for the charges against A. The appellant contended that the evidence from his daughters, who were witnesses to some of the offences against A, was overly prejudicial and could not be appropriately weighed by the jury when considering the charges against A. The court needed to determine if the trial judge had correctly exercised their discretion in allowing the joint trial and if the jury was properly directed on the use of evidence from the other charges.

The court examined the evidence in detail and concluded that the trial judge's decision to proceed with a joint trial was correct. The evidence from the appellant's daughters, while prejudicial, was also probative and necessary to understand the context of the charges against A. The court found that the trial judge appropriately directed the jury on the limited use of the evidence from the other charges, ensuring that it was only considered in relation to the charges it was relevant to. The court further found that there was no miscarriage of justice as the jury was adequately guided on how to assess the evidence.

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 unanimously of all charges apart from count 2.Ground 1 – failure to separate the charges based on A’s evidence In determining whether evidence of the offences against A were indeed admissible at the trial of counts 4 to 9, it is necessary to examine the evidence relating to them, and evidence bearing on them, in more detail. Count 1 was described by A as the first touching of a sexual nature of her by the appellant. It occurred on New Years Eve 1980. On that night the three girls had stayed home, watched television and slept in the living room of the family home. The appellant and his wife, the mother of B and C, had gone out. The three girls were sleeping in sleeping bags, in a line, with A in the middle. A was awakened when the appellant entered the room. She saw him standing near to where she was sleeping. She described how he took her hand and helped her to stand up. He then hugged her around her waist, touching her bottom as he did so. She could smell that he had been drinking liquor. He then kissed her on the mouth using his tongue. He then left the room. There was no suggestion from A that either of the sisters awakened during this incident. Nor did they claim to have seen it. However, in her evidence B said that she recalled four occasions when the appellant entered the bedroom shared by the three girls over that period, positioned himself, kneeling, on A’s bed, and placed his hands under her quilt. He would be at her bed for five to ten minutes. B described being in an upper bunk of the room and in a position to observe this. After the appellant left the room she heard A quietly sobbing. During A’s stay with the family, the appellant did not assault B in her bed, as she described him doing on many other occasions. She explained that the position of the trundle bed in which A slept, adjacent to B’s bunk bed, made it difficult for him to reach her own bed. C did not claim to have seen any offences committed against A. Like B, C described an extensive history of offending against herself, commencing well before A’s visit to the family. C gave evidence of the appellant coming into the bedroom she shared with B when the girls were in bed, and seeing him standing on the ladder which gave access to B’s bed. She would hear rustling of bedding and heavy breathing. Sometimes as he left the bedroom, the appellant would give C “a backhander” across the face. On other occasions the appellant came to C’s bed and touched her body under her pyjamas. Often the touching of her would be rough and painful. Often she would resist him, or at least attempt to. Sometimes he would threaten to kill her if she told anyone of his activities. Both B and C gave evidence to the effect that B was the appellant’s favourite daughter and did not suffer the physical abuse and generally harsh treatment given C. It is unnecessary to set out the facts which were alleged in proof of count 2. Count 3 was described as occurring in the kitchen of a restaurant, which was part of a tourist venture run by the appellant and located on the property where the family resided. A said in evidence that she entered the kitchen looking for B, who worked in the restaurant. She said that she became aware of the appellant’s presence when he put his arms around her waist. He then pulled down her underpants and penetrated her vagina with his finger. She said at various stages he was either behind her or in front of her.

Decision

Reasons for decision

ANDERSON J DAVID J

In summary, I consider that the summing up was carefully and conservatively framed in the way in which it allowed use of one complainant’s evidence in respect of any charge based on evidence of another.Conclusion None of the grounds of appeal have succeeded. The appeal must be dismissed. I agree that the appeal should be dismissed for the reasons given by Vanstone J. I have read the reasons of Vanstone J and agree that the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J, DAVID J

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