R v KING - [2007] SASC 358

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KING
[2007] SASC 358
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Layton and The Honourable Justice Kelly)
9 October 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION - GENERAL PRINCIPLES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS
Appeal against conviction: appellant convicted of two counts of unlawful sexual intercourse - acquitted of seven other counts of unlawful sexual intercourse and indecent assault upon stepdaughter - appeal on grounds that trial should have been stayed by reason of unavailability of two potential witnesses - Longman direction inadequate - failure of trial judge to give a direction in accordance with Black v The Queen - verdicts of guilty on two counts inconsistent with acquittals on other counts.
Held: no miscarriage of justice resulted from decision not to stay trial - Longman direction adequate - no requirement to give Black direction by using any particular formula - no inconsistency in verdicts - appeal dismissed.
Holmden v Bitar (1987) 47 SASR 509; Davis v The Queen (1995) 57 FCR 512, distinguished.
Jago v District Court (NSW) (1989) 168 CLR 23; R v McCarthy [1994] NSWCCA (unreported, Gleeson CJ, Caruthers and Hunter JJ, 12 August 1994); R v Kenny [2000] NSWCCA 364; R v O'Neill (2002) 81 SASR 359; R v Noyes [2005] 1 Qd R 169; Longman v The Queen (1989) 168 CLR 79; Mackenzie v The Queen (1996) 190 CLR 348, discussed.
M v The Queen (1994) 181 CLR 487; DPP v Selway (Ruling No 2) [2007] VSC 244; Black v The Queen (1993) 179 CLR 44, considered.

R v KING
[2007] SASC 358
Court of Criminal Appeal: Doyle CJ, Layton and Kelly JJ

DOYLE CJ: I would dismiss the appeal against the convictions recorded in the District Court. I agree with the reasons given by Kelly J for so deciding.
LAYTON J: I have had the benefit of reading Kelly J’s draft reasons for decision. I agree that the appeal should be dismissed and I generally agree with her reasons. However, I provide additional reasons for concluding that the appeal should be dismissed.
Ground 1 – Stay of proceedings
This ground was initially argued by counsel for the appellant, Mr Algie, as an appeal against the ruling made by the trial Judge prior to trial, to refuse to stay the proceedings. In the course of argument, counsel correctly modified this…

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 KING

Details

AGLC: R v KING [2007] SASC 358
Case: [2007] SASC 358
Decision Date: 9 October 2007

CaseChat Overview and Summary

The appellant was convicted of two counts of unlawful sexual intercourse with his stepdaughter, while being acquitted on seven other counts of similar offences and one count of indecent assault. The appeal against conviction argued that the trial should have been stayed due to the unavailability of two potential witnesses. It was further submitted that the Longman direction provided to the jury was inadequate and that the trial judge failed to give a direction in accordance with the decision in Black v The Queen. Additionally, it was argued that the verdicts of guilty on two counts were inconsistent with the acquittals on the other counts.

The court examined whether the decision not to stay the trial resulted in a miscarriage of justice. It considered whether the Longman direction was adequate and whether the trial judge was required to give a direction in accordance with Black v The Queen. The court also evaluated whether there was an inconsistency in the verdicts.

The court found that no miscarriage of justice resulted from the decision not to stay the trial. The Longman direction was deemed adequate, and there was no requirement to give a direction in accordance with Black v The Queen using any particular formula. The court also determined that there was no inconsistency in the verdicts. Consequently, the appeal was dismissed.

No additional orders were made beyond the dismissal of the appeal.

Orders