R v MacBeth

Case [2008] SASC 71

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MACBETH

[2008] SASC 71

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)

12 March 2008

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 - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE

Appeal against conviction - application for leave to appeal against sentence and appeal against sentence - appellant charged with five counts of indecent assault contrary to s 56 of the Criminal Law Consoldiation Act 1935 (SA) and two counts of procuring an act of gross indecency contrary to s 58 of the Criminal Law Consolidation Act 1935 (SA) - appellant found guilty of two counts - inconsistent verdicts - factual inconsistency - whether jury's verdict irreconcilable - judicial questioning of witnesses - whether comments made to the disadvantage of the accused - whether comments in summing up led to miscarriage of justice.

Held: not inconsistent for the jury to convict on counts 4 and 5 and acquit on all other counts - Judge's remarks did not unbalance the summing up as a whole - appeal against conviction dismissed - leave to appeal against sentence granted - appeal against sentence dismissed.

Criminal Law Consolidation Act 1935 (SA) s 56, s 58, s 353; Criminal Law (Sentencing) Act 1988 (SA) s 10(4), referred to.
MacKenzie v The Queen (1996) 190 CLR 348, applied.
MFA v The Queen (2002) 213 CLR 606, discussed.
R v Esposito (1998) 45 NSWLR 442; R v D (1997) 68 SASR 571; R v Liddy (No 2) (2002) 84 SASR 231, considered.

R v MACBETH
[2008] SASC 71

Court of Criminal Appeal:  Doyle CJ, Bleby and Gray JJ

  1. DOYLE CJ. Mr MacBeth was tried before a jury in the District Court on an Information charging him with five counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) and two counts of procuring an act of gross indecency contrary to s 58 of the CLCA. The complainant in each case was the same boy, DP. At the time of the first incident giving rise to the charges DP was aged 13. At the time of the last incident he was aged 15.

  2. The jury acquitted Mr MacBeth on counts 1 to 3, convicted him on counts 4 and 5, and acquitted him on counts 6 and 7.  A Judge of this Court granted permission to Mr MacBeth to appeal on the ground that the verdicts of guilty on counts 4 and 5 are inconsistent with the acquittals on the other counts, leading to the conclusion that the verdicts of guilty are unreasonable and that there has been a miscarriage…

Continue reading R v MacBeth

Sign in free to access the full text

Details
AGLC
R v MacBeth [2008] SASC 71
Case
[2008] SASC 71
Decision Date

CaseChat Overview and Summary

In the matter of R v MacBeth, the appellant, Mr MacBeth, was found guilty by a jury of two counts of indecent assault and was acquitted of the remaining charges. The decision involved an appeal against the conviction, an application for leave to appeal against the sentence, and an appeal against the sentence itself. The key legal issues included whether the jury's verdict was inconsistent, whether the judge's remarks during the summing up disadvantaged the accused, and whether the judge's comments led to a miscarriage of justice. Additionally, the court considered whether the judge was justified in sentencing Mr MacBeth on the factual basis he chose, given the not guilty verdicts on other charges.

The court held that the jury's verdict was not inconsistent and that the judge's remarks, despite some blemishes, did not unbalance the summing up as a whole. The court found that the summing up was careful, fair, clear, and to the point. It concluded that the identified blemishes would not have led the jury to perceive the judge as identifying with the prosecution case, nor did they overawe the jury or undermine their role in assessing the credibility of the evidence. Consequently, the appeal against conviction was dismissed. Regarding the sentence, the court granted the application for leave to appeal against the sentence but dismissed the appeal itself. The judge's decision to sentence on the factual basis he chose was upheld, as the judge appropriately considered the ongoing sexual relationship context and accepted the victim's account of the uncharged acts, despite their potential infrequency.

In summary, the court dismissed the appeal against conviction, finding no miscarriage of justice in the trial proceedings. The application for leave to appeal against the sentence was granted, but the appeal against the sentence was dismissed. The judge's sentencing approach was considered appropriate given the circumstances and the factual basis upon which he sentenced Mr MacBeth.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

DOYLE CJ BLEBY J (dissent) GRAY J
There is, therefore, force in two of the complaints that Mr Griffin makes. However, I do not agree that these blemishes made the summing up unbalanced as a whole. Taken as a whole the summing up was conspicuously careful and fair. It was clear and to the point. I do not agree that these two blemishes would have led the jury to think that the Judge had identified himself with the prosecution case. Nor is there any basis for a suggestion that the effect of the Judge’s comments (that I have criticised) was to overawe the jury, or to take away from them in any sense their role in deciding whether DP’s evidence was credible or not. I have not overlooked the fact that one of the blemishes relates to the credit of Mr MacBeth, and the other to the credit of DP. My conclusion is that the blemishes that I have identified would not have been productive of unfairness, did not make the summing up unbalanced, and do not give rise to a risk of a miscarriage of justice.Conclusion For all those reasons I would dismiss the appeal against conviction.Application for permission to appeal against sentence Mr MacBeth applied for permission to appeal against his sentence after his appeal against conviction had been set down for hearing. The application for permission was referred to the court hearing the appeal against conviction. Each of the offences for which Mr MacBeth was convicted attracted a maximum punishment of eight years’ imprisonment. The Judge imposed a single sentence of imprisonment for three years nine months, and fixed a non-parole period of two years three months. The Judge declined to suspend the sentence. The application for permission to appeal raises the question of whether it was open to the Judge to sentence on the factual basis upon which he sentenced, having regard to the not guilty verdicts returned by the jury. In sentencing Mr MacBeth the Judge put to one side the incidents the subject of charges on which Mr MacBeth was acquitted. The Judge said that he was satisfied that the explanation for the acquittal on count 6 was the lack of any evidence that Mr MacBeth procured DP to commit the act in question. The Judge rejected a submission that he should sentence Mr MacBeth on the basis that count 4 and count 5 were isolated acts. To the contrary, the Judge sentenced Mr MacBeth on the basis that those offences were committed in the context of an ongoing sexual relationship. As the Judge said, Mr MacBeth was not to be punished for the uncharged acts. But the existence of the ongoing sexual relationship meant that Mr MacBeth could not claim the leniency to which he might be entitled if count 4 and count 5 were isolated acts. The Judge found that DP was truthful, and that what he said about the uncharged acts was “a substantially truthful account”. Clearly enough, he sentenced on the basis that DP’s evidence as to them should be accepted, although he acknowledged that the uncharged acts might not have occurred as frequently as DP said. The Judge accepted that Mr MacBeth was “a dedicated and highly regarded teacher and sports coach”. He acknowledged the time that Mr MacBeth had spent, voluntarily, assisting children. He accepted that he had been highly regarded by other teachers, by students and their parents. He noted that prior to the commission of the offences in question, Mr MacBeth had not committed any offences of any kind. He acknowledged the impact that imprisonment would have on Mr MacBeth’s wife and family, and on Mr MacBeth himself. He accepted that imprisonment would be difficult for Mr MacBeth, because it was likely that he would be in protective custody.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ, GRAY J

Full text does not contain this section.