R v KWG

Case [2000] SASC 398 15 December 2000

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R v KWG
[2000] SASC 398

Court of Criminal Appeal: Lander, Wicks and Martin JJ

1................ LANDER J........ I have had the advantage of reading in draft the reasons of Martin J. I agree with his Honour’s reasons and his conclusions.

There is no rule of law or practice which requires a judge, when a person is charged with more than one sexual offence on a child or an adult, and where there is no corroboration of the complainant’s evidence, to instruct a jury that if they are not satisfied beyond reasonable doubt that the complainant has been truthful in relation to any one count that the jury must acquit the accused on all accounts. Jones v The Queen (1997) 191 CLR 439 is not authority to the contrary.
In Jones v The Queen (supra) the court was concerned with the constitutional role of the Court of Criminal Appeal which was called upon to review the verdicts of a jury which appeared to be inconsistent and thereby to determine whether the convictions were unsafe and unsatisfactory.
The role of the Court of Appeal in reviewing the jury’s verdict is quite different to that of the jury in reaching its verdicts.
Assuming there to be evidence which is capable of supporting a conviction the jury has the constitutional obligation to determine the facts. It is not for the judge to usurp the jury’s function by instructing the jury to ignore evidence which is capable of supporting a conviction.
Nor should a jury be instructed that in those circumstances if they acquit on one count and convict on others their verdicts are liable to be set aside by a Court of Criminal Appeal; Lucas v The Queen (1968) 120 CLR 171 at 174/175.
Where the complainant’s evidence is uncorroborated on the counts before the jury, the jury should be instructed that if they are not satisfied with the complainant’s evidence on any one count and are not prepared to convict on that count they should bear that in mind in considering the other counts, which also rely on the uncorroborated evidence of the complainant.
Indeed, in some cases, it might be appropriate to warn the jury that “there is nothing to distinguish the evidence of a complainant on one charge from her evidence on another charge.”; R v ARD [2000] NSWCCA 443 paragraph 9 per Speigleman CJ.
For the reasons given by Martin J leave to amend the notice of appeal should be refused and the appeal against conviction should be dismissed.
I also agree for the reasons given by Martin J that the appeal against sentence should be dismissed.
The appellant has been able to demonstrate error on the part of the District Court Judge in relation to his application of sentencing principles.
The Judge was wrong as Martin J has demonstrated to have regard to count 7 as a subsequent offence. I agree therefore that it is appropriate for this Court to consider the question of sentence afresh.
Whilst the…

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.

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Details

AGLC: R v KWG [2000] SASC 398
Case: [2000] SASC 398
Decision Date: 15 December 2000

CaseChat Overview and Summary

In the Court of Criminal Appeal, the appellant appealed against his conviction and sentence. The appellant was convicted of four counts of sexual offences committed against a young person and one count of inducing a child to expose his body. The appellant appealed against his conviction on the basis that the verdicts were unsafe and unsatisfactory. He also appealed against his sentence on the basis that the sentence was manifestly excessive. Lander, Wicks and Martin JJ delivered separate judgments. All three judges dismissed the appeal against conviction and sentence. Lander and Wicks JJ agreed with the reasons of Martin J. Martin J held that the appellant’s appeal against conviction should be dismissed because the different verdicts were explicable and the jury had been properly directed. The jury had found the appellant guilty of counts 1-4 and 7, and acquitted him of counts 5 and 6. The appeal against sentence should also be dismissed because the sentence was not manifestly excessive. The appellant was aged nearly 80 years at the time of sentencing. The appellant had committed a number of serious offences against a vulnerable young person. He abused his position of trust and power. The appellant was unable to call in aid the benefit of contrition or a plea of guilty. The sentence of six years fixed by the learned trial Judge was appropriate. The non-parole period of two and a half years was also appropriate.

Orders