R v MES - [2007] SASC 201

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MES
[2007] SASC 201
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Layton and The Honourable Justice Kelly)
4 June 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appellant convicted by jury of three counts of unlawful sexual intercourse - complainant first complained to the police nine years after the alleged offences - appellant appeals against conviction on two grounds - that trial Judge's Longman direction was inadequate - that trial Judge failed to direct the jury that uncharged acts must be proved beyond reasonable doubt - trial Judge left sexual attraction as one of the permissible uses of the uncharged acts - HELD: Trial Judge's Longman direction adequate - it would have been preferable if trial Judge did not mention sexual attraction in the context of the case but the failure to direct that uncharged acts must be proved beyond reasonable doubt did not result in a miscarriage of justice - appeal dismissed.
R v Nieterink (1999) 76 SASR 56; R v IK (2004) 89 SASR 406, applied.
R v RWB (2003) 87 SASR 256; R v DRG 150 A Crim R 496, discussed.
Tully v The Queen (2006) 81 ALJR 391; Longman v The Queen (1989) 168 CLR 79, considered.

R v MES
[2007] SASC 201
Court of Criminal Appeal: Vanstone, Layton and Kelly JJ

VANSTONE J: I would dismiss the appeal. I agree with the reasons of Kelly J.
LAYTON J: I agree that the appeal should be dismissed for the reasons given by Kelly J.
KELLY J:
Introduction
The appellant was tried before a District Court jury on three counts of unlawful sexual intercourse with a person under the age of 12 years. The alleged victim was his daughter “K”. He was convicted on each of the three counts and he has appealed against the convictions.
The grounds of appeal raise two main areas of complaint. The first is that the direction commonly referred to as the Longman direction[1] should have explicitly referred to the uncharged acts as well as the charged acts. The second is that the trial Judge should have directed that the uncharged acts could only be used by the jury if proved beyond reasonable doubt.
[1] Longman v The Queen (1989) 168 CLR 79
The appellant asserts that because of the cumulative effect of those deficiencies the verdicts are unsafe and unsatisfactory.
Background
The prosecution led evidence of a course of conduct which started when the child was about seven. The conviction in count one related to an act of fellatio which was said to be the first occasion when K could remember any sexual contact with the appellant. The second conviction related to an act of cunnilingus when K was about 10 and the third conviction to an act of penile penetration when…

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 MES

Details

AGLC: R v MES [2007] SASC 201
Case: [2007] SASC 201
Decision Date: 4 June 2007

CaseChat Overview and Summary

The appellant appealed against his conviction on three counts of unlawful sexual intercourse with a child under 10 years old. The case was heard by the South Australian Court of Criminal Appeal. The appellant argued that the trial judge's Longman direction was inadequate and that the trial judge failed to direct the jury that uncharged acts must be proved beyond reasonable doubt. The trial judge had also left sexual attraction as one of the permissible uses of the uncharged acts.

The court held that the trial judge's Longman direction was adequate, and while it would have been preferable if the trial judge had not mentioned sexual attraction in the context of the case, the failure to direct that uncharged acts must be proved beyond reasonable doubt did not result in a miscarriage of justice. The appeal was dismissed. The court held that the trial judge's Longman direction was adequate because it warned the jury of the dangers of convicting on uncorroborated evidence of a complainant who was very young at the time of the events giving rise to the charges and where there has been a long delay between those events and the prosecution. The court also held that the failure to direct the jury that uncharged acts must be proved beyond reasonable doubt did not result in a miscarriage of justice because the jury was properly directed on the need for caution in considering the complainant's evidence, and the uncharged acts were not central to the prosecution case.

The court dismissed the appeal and upheld the appellant's convictions on all three counts of unlawful sexual intercourse with a child under 10 years old. The court held that the trial judge's Longman direction was adequate and that the failure to direct the jury that uncharged acts must be proved beyond reasonable doubt did not result in a miscarriage of justice. The court also held that the appellant's convictions were safe and satisfactory, and there was no need for a new trial.

Orders

Orders of the court

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Background

Background to the litigation

The appellant asserts that because of the cumulative effect of those deficiencies the verdicts are unsafe and unsatisfactory.Background The prosecution led evidence of a course of conduct which started when the child was about seven. The conviction in count one related to an act of fellatio which was said to be the first occasion when K could remember any sexual contact with the appellant. The second conviction related to an act of cunnilingus when K was about 10 and the third conviction to an act of penile penetration when K was 11 years old. In addition to the charges, K referred to a number of uncharged acts, both inside South Australia and outside South Australia. The last such acts were two incidents which happened after K had turned 12 in Queensland, some time after the occasion of count three. Apart from the Queensland acts all the other conduct, charged or not, was said to have occurred during approximately the same time period. K did not complain to the police about the appellant’s behaviour until 2004. The appellant was arrested in June 2005, however, there was no dispute that the appellant first became aware of some of K’s allegations in about 1996 when he was confronted by K’s mother. In opening the case the prosecutor explained the relevance of the uncharged acts to the jury by saying they might help to explain why K could not remember all the details and all the surrounding circumstances on each and every occasion that the appellant sexually interfered with her. The prosecutor told the jury that they were an important part of the total sequence of events. The prosecutor also told the jury that this evidence might help to explain why K did not complain of the appellant’s conduct at the time, why the appellant might be confident that she would do his bidding, and that it could help to explain some of his brazen behaviour, for example, in Queensland, when he went into her bedroom despite the child’s grandparents being nearby.The Longman direction Counsel for the appellant complained that the Longman direction given was inadequate in that the Judge failed to distinguish between the charged and the uncharged acts when giving the warning, and he should have set out more fully the reasons for the giving of such a warning. The appellant contended that he had been prejudiced by the failure to specifically relate the warning to the categories of uncharged acts identified by the Judge in the summing up. That prejudice was compounded, it was argued, by the Judge’s emphasis when giving the warning on the earlier allegations as opposed to the later allegations. The appellant contended that there was a risk the jury might have assumed that the later allegations were more likely to be true. The rationale for the giving of the Longman warning is to be found in the majority judgment of Brennan, Dawson and Toohey JJ. Where there are potential dangers in acting upon particular evidence which may not, without such a warning, be appreciated by the jury, a Judge is required to give an appropriate warning to the jury. In a case involving sexual allegations in circumstances where the complainant was very young at the time of the events giving rise to the charges and there has been a long delay between those events and the prosecution, a jury should be warned that it would be dangerous to convict on the uncorroborated evidence of the complainant without scrutinising the complainant’s evidence with great care. One factor in particular identified by the Court in Longman which called for the warning to be given, was the accused’s loss of means of testing the complainant’s allegations by reason of the substantial delay.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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