R v Little

Case [2015] SASCFC 118

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LITTLE

[2015] SASCFC 118

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan, The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Lovell)

20 August 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD

CRIMINAL LAW - PROCEDURE - SUMMING UP

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION

The appellant was convicted by a jury of one count of persistent sexual exploitation of a child. In summing up the trial Judge did not direct the jury that it was required to find beyond reasonable doubt unanimously, or by majority after four hours, that the accused had committed at least one pair of the same two acts within a period of not less than three days.

The appellant appeals to this Court. The appellant suggested that the decision of this Court in R v M, BJ (2011) 110 SASR 1 may have been wrongly decided.

Held (the Court):

1.   The trial Judge erred in failing to give the jury a direction requiring the jurors to agree unanimously, or by majority after four hours, that a prescribed pair of the same two acts has been proved beyond reasonable doubt.

2.   The decision of R v M, BJ was decided correctly.

3.   Appeal allowed.

Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Code Act 1899 (Qld) Sch 1; Criminal Code (Qld) s 229B(1), referred to.
R v M, BJ (2011) 110 SASR 1; KBT v The Queen (1997) 191 CLR 417, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"Unanimity", "Extended unanimity direction", "Persistent sexual exploitation", "Multiple acts", "Same acts", "Unanimous verdict"

R v LITTLE
[2015] SASCFC 118

Court of Criminal Appeal:   Kourakis CJ, Sulan, Kelly, Peek and Lovell JJ

  1. THE COURT:       The appellant, Robert Little, was convicted on his trial by majority verdict of a jury of one count of persistent sexual exploitation.  The count alleged that between that the first day of June 1999 and the thirtieth day of June 2002 at Murray Bridge or another place, over a period of not less than three days the appellant committed more than one act of sexual exploitation of the complainant AW who was under the age of 17 years.  It is an element of the offence that the accused has committed two acts of sexual exploitation over a period of three or more days.  We will refer to that element as the commission of the prescribed pair of acts.  The acts alleged included:

    a      Touching AW’s genitals;

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R v Little [2015] SASCFC 118
Case
[2015] SASCFC 118
Decision Date

CaseChat Overview and Summary

In R v Little, the appellant was convicted of maintaining a sexual relationship with a child. The prosecution alleged that the appellant had engaged in ongoing acts of sexual exploitation against a boy, AW, over a period of approximately three years, commencing when AW was 13 years old and ending when he was 16. AW testified to eight specific acts of sexual exploitation, including touching his genitals, performing fellatio, and anal sexual intercourse, and also stated that the appellant regularly engaged in anal sexual intercourse with him. The defence challenged AW's credibility and reliability by highlighting inconsistencies in his evidence regarding the timing and details of certain incidents.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the trial judge had adequately directed the jury on the requirement of unanimity regarding the specific acts constituting the offence. Specifically, the court had to determine if the jury was properly instructed that they must agree unanimously, or by majority after four hours of deliberation, that a prescribed pair of the same two acts of sexual exploitation had been proved beyond reasonable doubt, given the multiple alleged acts.

The Full Court reasoned that the trial judge erred in law by failing to direct the jury that they must agree unanimously, or by majority after four hours, that a specific pair of the same two acts of sexual exploitation had been proved beyond reasonable doubt. The court clarified that the decision in R v M, BJ did not preclude this requirement and was correctly decided. The judge had directed the jury that the offence required more than one act of sexual exploitation over a period of not less than three days, and that they should consider whether any acts constituting indecent assault or unlawful sexual intercourse were proved, and then whether any two of those acts were committed over the requisite period. However, the court found that this direction did not sufficiently ensure that the jury would agree on the same two specific acts.

Consequently, the Full Court allowed the appeal, set aside the conviction, and remitted the matter for retrial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

We would hold that the Judge erred in law in failing to direct the jury that it must agree unanimously, or by majority after four hours, that a prescribed pair of the same two acts, from the multiple acts of sexual exploitation alleged, has been proved beyond reasonable doubt. The decision of this Court in R v M, BJ[2] does not hold to the contrary and was correctly decided. Our reasons follow.[2] (2011) 110 SASR 1.The Evidence It was the prosecution case at trial that the appellant committed ongoing acts of sexual exploitation against a boy, whom we will call AW, for a period of approximately three years from 1 June 1999 until 30 June 2002. AW testified that the offending commenced when he was approximately 13 years old and started work experience with the appellant, who was a friend of AW’s father. It ended when he was 16 years old. The offending conduct allegedly comprised the appellant, on more than one occasion, touching AW’s penis and genitals, performing fellatio on AW, and inserting his penis into AW’s anus. AW’s evidence was at times vague or non-specific. That is not surprising given the passage of time since the offending, and AW’s evidence that the appellant supplied him with alcohol and marijuana. Nonetheless AW described eight specific acts of sexual exploitation. AW could not clearly recall additional specific occasions, but testified that the appellant would regularly have anal sexual intercourse with him. At trial the appellant relied on a number of inconsistencies in AW’s evidence to challenge his credibility and reliability. Those inconsistencies included: ·AW’s claim in evidence-in-chief that one particular incident occurred when he was about 13 and a half years old, and later concession in cross-examination that he had told police that it had occurred at about the time of his fifteenth birthday; ·AW’s failure to tell the police about the first occasion when sexual intercourse took place with the appellant when he first spoke to them even though he was able to describe it in a subsequent statement to the police, and give detailed evidence about the event at trial;·Precisely when AW woke on one occasion to find the appellant fellating him; and ·An inconsistency between AW’s statement to police that the appellant engaged in anal sexual intercourse with AW in the appellant’s caravan on one occasion and AW’s testimony that it occurred “at least 10 times ... every three weeks”.The Summing Up The Judge correctly directed the jury that it was an element, the Judge identified it as the third element, that the accused must commit more than one act of sexual exploitation of the alleged victim over a period of not less than three days. The Judge directed the jury, as was the case, that the real issue was whether or not the third element had been satisfied, there being no dispute that the appellant was an adult, and that the complainant AW was a child, at the relevant time. The Judge directed the jury that an act of sexual exploitation is one which could be the subject of a charge of a sexual offence and that the offences particularised in the Information were offences of indecent assault and unlawful sexual intercourse. The Judge correctly identified the elements of those sexual offences. The Judge then gave the following directions to the jury on the third element. The issue for you is as to whether or not you are satisfied beyond reasonable doubt that over a period of not less than three days the accused committed more than one act of sexual exploitation of [AW] when he was under the age of 17 years.The range of dates in the particulars are not elements of this offence in the same way as the other elements. They are, however, important to the offence charged because an element of offence is that [AW] must have been under the age of 17 years when the accused committed more than one act of sexual exploitation on him over a period of not less than three days.When you start your deliberations you might first consider whether or not you are satisfied that any of the acts which could constitute an indecent assault by the accused of [AW] has or have been proved to your satisfaction. You might then move to consider whether or not you are satisfied that any of the acts which constitute unlawful sexual intercourse has or have been proved.If you find that any two of all these acts are proved, you should then consider whether you are satisfied that any of those two acts were committed by the accused over a period of not less than three days.

Decision

Reasons for decision

We are not satisfied on the evidence in this case that all of the members of the majority of the jury who returned the verdict of guilty had necessarily agreed that the same pair of offences had been proved beyond reasonable doubt. Conclusion We would allow the appeal, set aside the conviction and remit the matter for retrial.

Ratio Decidendi

Legal Principle Established

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