R v Leach - [2002] SASC 321

R v LEACH
[2002] SASC 321
Court of Criminal Appeal: Debelle, Williams and Bleby JJ (ex tempore)

DEBELLE J: I agree with the reasons given by Bleby J. In my view, the evidence which Dr Thompkins gave makes it clear that there is no prospect that any of the criteria under s 269H of the Criminal Law Consolidation Act would have been made out at the trial. I also agree that the first ground of appeal is not arguable for the reasons given by Bleby J. I, too, would dismiss the application.
WILLIAMS J: I would dismiss the application for leave to appeal for the reasons given by Bleby J.
BLEBY J: The applicant seeks leave to appeal against his conviction on two grounds. His application was previously rejected by a single Judge on both grounds. This Court has now heard oral argument on the application for leave.
The applicant was found guilty by a jury of one count of indecent assault and four counts of unlawful sexual intercourse with a person under 12. The victim was the same in each case, a boy of the age of about 10 years. The offences were committed between 1 April and 30 September 1997 at the home of the applicant. The trial took place on 18 and 19 June 2001.
Ground 1 of the intended appeal complains about the trial judge saying, during the course of his summing-up, “However, if he is found guilty you can be quite satisfied that there will be a substantial penalty imposed”.
The statement was made in the course of an instruction to the jury not to be influenced by any general prejudices or sympathies. The trial Judge warned the jury that this was a case not about community outrage, but whether it had been proved that the applicant committed the acts alleged. He warned the jury that it was his responsibility as the Judge, not that of the jury, to impose an appropriate sentence. He then made the statement complained of. It was immediately followed by the statement:
“What you must not do is treat this as an opportunity to make some statement to the community at large that this sort of homosexual activity with young boys should not be countenanced, and to find this man guilty on less than proof beyond reasonable doubt”.
It was inappropriate for the trial Judge to tell the jury that if the applicant was found guilty a substantial penalty would be imposed. However, undesirable as the direction may have been, in the context in which it was made and in the light of the repeated assertion by the trial Judge during his summing-up that the jury could only convict if they were satisfied beyond reasonable doubt, I do not think it is arguable that the remark led to a miscarriage of justice. I would refuse leave to appeal on this ground.
On the second ground the applicant wishes to adduce fresh evidence that:
1. The applicant was not…

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 Leach

Details

AGLC: R v Leach [2002] SASC 321
Case: [2002] SASC 321
Decision Date: 20 September 2002

CaseChat Overview and Summary

In the case of R v Leach, the applicant, who was convicted of indecent assault and unlawful sexual intercourse with a minor, sought leave to appeal against his conviction. The appeal was based on two grounds: the alleged inappropriate remarks made by the trial judge during the summing-up, and the availability of fresh evidence that the applicant was not fit to plead or mentally competent at the time of the trial or the alleged offences. The Court of Criminal Appeal, consisting of Debelle, Williams, and Bleby JJ, dismissed the application for leave to appeal. The first ground of appeal concerned a statement made by the trial judge that a substantial penalty would be imposed if the applicant was found guilty. Despite acknowledging that this was an inappropriate remark, the court concluded that it did not lead to a miscarriage of justice, given the trial judge's repeated assertions that the jury could only convict if they were satisfied beyond reasonable doubt.

The second ground of appeal was based on the applicant's proposed fresh evidence from a psychiatrist, Dr Thompkins, who opined that the applicant suffered from schizophrenia or temporal lobe epilepsy, or both, before and during the alleged offences. The court held that the evidence did not meet the required standard for leave to appeal, as it did not demonstrate a significant possibility that the jury would have acquitted the applicant if the evidence had been presented at the trial. The court found that Dr Thompkins' evidence did not establish a probability that the applicant was unfit to stand trial or mentally incompetent to commit the offences, as required by sections 269H and 269C of the Criminal Law Consolidation Act 1935. Consequently, the Court of Criminal Appeal dismissed the application for leave to appeal.

Orders