R v M, RB

Case [2007] SASC 207

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v M, RB

[2007] SASC 207

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Sulan)

8 June 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES

Sexual offences - uncharged acts - standard of proof of uncharged acts - whether necessary for trial judge to direct jury as to standard of proof applicable to evidence of uncharged acts - whether evidence of uncharged acts circumstantial evidence - trial judge gave adequate direction as to uncharged acts - whether verdicts unsafe and unsatisfactory - verdicts open to jury on evidence as a whole.

Held: appeal dismissed.

R v IK (2004) 89 SASR 406; R v Nieterink (1999) 76 SASR 56, applied.
R v S, B [2006] SASC 319; M v The Queen (1994) 181 CLR 487; R v O, AE [2007] SASC 206; Gipp v The Queen (1998) 194 CLR 106; KRM v The Queen (2001) 206 CLR 221; Tully v The Queen (2006) 81 ALJR 391; R v Beserick (1993) 30 NSWLR 510; R v Grech [1997] 2 VR 609; R v Vonarx [1999] 3 VR 618; R v Hagarty (2004) 145 A Crim R 138; R v BJC (2005) 13 VR 407; R v FJB [1999] 2 VR 425; B v The Queen (1992) 175 CLR 599; R v Clifford (2004) 233 LSJS 157; R v B, RWK (2004) 236 LSJS 272; Shepherd v The Queen (1990) 170 CLR 573; R v Pfennig (1995) 182 CLR 461; R v Hoch (1998) 165 CLR 292; R v Garrett (1988) 50 SASR 392, considered.

R v M, RB
[2007] SASC 207

Court of Criminal Appeal:  Doyle CJ, Debelle and Sulan JJ

  1. DOYLE CJ:          The appellant was tried in the District Court before a jury on an Information alleging one count of unlawful sexual intercourse with a person under 12 years of age (count 1), and seven counts of unlawful sexual intercourse.  Before the jury was empanelled the appellant pleaded guilty to count 5.  The trial proceeded on the other counts, the counts being referred to for convenience as counts 1 to 7.

  2. On each count the alleged victim was R, the appellant’s step-daughter.

  3. The jury convicted the appellant on counts 1 to 5.  On count 6 the jury convicted the appellant of attempted unlawful sexual intercourse.  The jury convicted the appellant on count 7.

  4. The trial Judge admitted evidence of numerous acts of sexual misconduct on the part of the appellant and…

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R v M, RB [2007] SASC 207
Case
[2007] SASC 207
Decision Date

CaseChat Overview and Summary

The appellant appealed against their convictions for multiple sexual offences against R, who was under the age of 16 at the time of the offences. The appellant argued that the trial judge's direction to the jury regarding the standard of proof for uncharged acts was inadequate and that the verdicts were unreasonable and unsatisfactory. The central issue was whether the trial judge's direction to the jury regarding the standard of proof for uncharged acts was sufficient and whether the verdicts were safe and satisfactory. The court considered whether the trial judge had adequately directed the jury on the standard of proof applicable to the evidence of uncharged acts and whether the evidence of uncharged acts was circumstantial evidence. The court concluded that the trial judge had given adequate directions to the jury regarding the standard of proof for uncharged acts, and that the evidence of uncharged acts was not necessarily circumstantial evidence. The court held that the verdicts were open to the jury on the evidence as a whole, and that the verdicts were not unreasonable or unsatisfactory.

The court found that the trial judge had given adequate directions to the jury regarding the standard of proof for uncharged acts. The court held that the trial judge had correctly directed the jury that the prosecution must prove beyond reasonable doubt that the appellant committed the charged acts, and that the evidence of uncharged acts could only be considered if the jury was satisfied beyond reasonable doubt that the acts occurred. The court held that the trial judge's directions were consistent with the principles set out in Nieterink and IK, and that there was no need for the court to depart from those decisions unless the High Court or this Court comprised of five judges overruled them. The court held that the evidence of uncharged acts was not necessarily circumstantial evidence, as the jury could consider the evidence of uncharged acts if it was satisfied beyond reasonable doubt that the acts occurred. The court held that the evidence of uncharged acts could be used to establish a pattern of behaviour or propensity on the part of the appellant, and that the jury could consider the evidence of uncharged acts in determining whether the appellant was guilty of the charged acts. The court held that the verdicts were open to the jury on the evidence as a whole, and that the jury was entitled to draw inferences from the evidence of uncharged acts if they were satisfied beyond reasonable doubt that the acts occurred. The court held that the verdicts were not unreasonable or unsatisfactory, as the jury had been properly directed on the standard of proof for uncharged acts and had considered the evidence of uncharged acts in light of that direction. The court held that the evidence of uncharged acts, when considered with the evidence of the charged acts, was sufficient to support the verdicts. The court held that the appeal against the convictions should be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant also complains that the verdicts are unsafe and unsatisfactory. The submission is that the evidence relied on by the prosecution, in substance the evidence of R, suffered from such deficiencies and inadequacies that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.Facts R was born in June 1974. She was 32 years of age when she gave her evidence. Her mother married the appellant in 1979. R said that her mother was often away from home for one reason or another, and while the appellant had a job for a while, he was unemployed for quite some time. This meant that R and the appellant were often in the family home when the mother was absent. The incident that R described that was the subject of count 1 was said to have occurred in about mid 1984, when R’s mother was pregnant. The subject of count 1 was an act of penile-vaginal intercourse. R described the circumstances in some detail. A notable feature of her evidence was that she was able to give considerable detail, and to be quite specific, about the charged acts and many of the uncharged acts. In her evidence R then described incidents the subject of the remaining counts, in some detail. The final charged act was in 1991, not long before R turned 17 years of age. I referred at the outset to a count to which the appellant pleaded guilty. This admitted act of intercourse occurred, as I understand it, between July 1988 and April 1989. R described an incident in which the accused came into her room, pulled her knickers down, put his finger in her vagina and then inserted his penis. The door of the bedroom was open. R said that her mother came into the room, and the appellant then got off her and went into a bedroom with R’s mother. After some time, according to R, the mother came out of the bedroom and demanded of R why she had “asked for it”. R denied doing so. R said her mother threatened to take her to a home. I assume this meant a government institution. R said that her mother was angry and upset, and that R was dumbfounded. The inference from R’s evidence was that, to some extent at least, R’s mother blamed her for the incident. R’s mother was called as a witness. She described an incident, which must have been the same one, when she found the accused lying on top of R in her bed. R’s mother said that R said “I let him do it”. She said that later the appellant apologised, and said it would not happen again, and after that normal relationships within the family were resumed. The appellant also gave evidence about this incident, and agreed that he told R’s mother that “[R] had asked for it”. He admitted that it was wrong. He said he told R’s mother that it would never happen again, and she gave him a second chance. I return to the narrative. The charged acts covered a period from 1984 to 1991. R left home in about early 1992. R gave evidence also of numerous uncharged acts. She gave evidence of acts of fellatio that began when she was about seven years of age, and so must have begun in about 1981. She said there were regular acts of fellatio before the incident the subject of count 1. She described other uncharged acts that occurred during the period between count 1 and count 7, and uncharged acts that occurred after the incident the subject of count 7. These included acts of intercourse, some of them involving the penetration of R with objects held by the appellant. She described acts of attempted intercourse. Many of these incidents were described in quite specific detail. They occurred in or about the family home. R gave evidence that the appellant threatened her with harm if she told anyone about what he was doing.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Trial judges should continue to apply Nieterink and IK, unless the High Court overrules those decisions, or unless this Court comprised of five judges does so. As the High Court may consider the position in the near future, it is desirable for this Court to await the outcome of the appeal in the matter of R v S, B.Conclusion For those reasons the appeal against the convictions should be dismissed. DEBELLE J: The central issue in this appeal raises the important question as to the standard of proof of uncharged acts in a prosecution alleging the commission of sexual offences. The appeal does not concern the admissibility of the evidence of uncharged acts which was led at the trial but the adequacy of the trial judge’s direction to the jury in respect of those acts. It is now relatively commonplace that evidence of uncharged acts will be led in a prosecution for sexual offending against a child. In Gipp v The Queen (1998) 194 CLR 106 there was a division of opinion on the question whether evidence of uncharged acts of sexual conduct is admissible. McHugh and Hayne JJ have enjoined courts to continue to treat such evidence as admissible until the High Court decides to the contrary: KRM v The Queen (2001) 206 CLR 221 at [31] and at [134]. Since Gipp, courts in all jurisdictions have continued to admit evidence of uncharged acts. The evidence has been admitted on a variety of grounds. Those grounds include evidence of relationship, background evidence, evidence of a sexual passion by the accused towards the complainant and evidence of propensity. In Gipp at [140], Kirby J listed all of the grounds on which such evidence has been admitted. Evidence of uncharged acts is sometimes admitted to explain the circumstances in which the charged offences are alleged to have occurred so that the evidence of the charged acts does not appear to be unreal or the events unintelligible: KRM v The Queen at [134] per Hayne J; R v Nieterink (1999) 76 SASR 56 at [43]. While evidence of uncharged acts has been admitted, it has been recognised that such evidence has a real potential to cause real prejudice to an accused. It is likely to have darkened the character of the accused over and above the impact of the nature of the acts charged so he enters the witness box as a person of bad character without having put his character or the character of the complainant in issue: Tully v The Queen (2006) 81 ALJR 391 at [147] per Callinan J. Where the accused is charged with sexual offences, the evidence is often evidence of other sexual offending than that with which the accused has been charged. As a general rule, it is uncorroborated evidence of the complainant. The evidence concerns conduct which by its very nature is not witnessed by others. It is the kind of case where the evidence is essentially oath on oath. If the allegation concerns events which occurred several years before the trial, the evidence is, not infrequently, vague and imprecise. There will be little evidence of objective facts by reference to which the case against the accused might be tested. In addition, it is not uncommon for the uncharged acts to be inextricably intertwined with the charged acts. Courts have, therefore, emphasised that special care must be exercised as to the basis upon which the evidence is admitted and have stressed the need for careful directions to the jury as to the manner in which the jury should use such evidence: see, for example: Gipp at [77] per McHugh and Hayne JJ; R v Beserick (1993) 30 NSWLR 510; Nieterink at [83] to [88]; R v Grech [1997] 2 VR 609; R v Vonarx [1999] 3 VR 618, R v Hagarty (2004) 145 A Crim R 138; R v IK (2004) 89 SASR 406; R v BJC (2005) 13 VR 407.

Ratio Decidendi

Legal Principle Established

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