R v N, A - [2004] SASC 409

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v N, A
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Gray)
10 December 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
Appeal against conviction - appellant convicted by jury of two counts of indecent assault and four counts of unlawful sexual intercourse - whether trial Judge erred in directions to the jury concerning victim's motive for lying - whether victim's response in cross-examination asserting abuse of sister denied appellant a fair trial - whether the trial Judge erred by failing to direct jury to ignore victim's assertion - whether errors amounted to miscarriage of justice - appeal dismissed.
Palmer v The Queen (1998) 193 CLR 1; Crisafio v The Queen (2003) 27 WAR 169; The Queen v Fricker (1986) 42 SASR 436, discussed.

R v N, A
[2004] SASC 409
Court of Criminal Appeal: Doyle CJ, Perry and Gray JJ

DOYLE CJ: The appellant was found guilty by a jury after a trial of two charges of indecent assault and four charges of unlawful sexual intercourse.
The alleged offences were committed between 1990 and 1993. The victim was the daughter of the accused. She was born in April 1978. She was eleven years old at the time of the first offence, and fourteen or fifteen years old at the time of the sixth offence.
The appellant complains about two matters. His first complaint relates to the direction that the Judge gave to the jury relating to evidence about reasons why the victim might have made up the allegations against her father. The defence suggested that, for various reasons, the victim wanted to harm her father. The other complaint relates to an answer given by the victim in cross-examination, in the course of which she said that her father was also sexually abusing one of her sisters.
The trial
The case is one of a kind that is sadly all too common.
As I have said, the prosecution alleged the commission of six separate offences against the victim, beginning when she was eleven years of age and concluding when she was fourteen or fifteen years of age. The prosecution also led evidence from the victim of numerous other acts of sexual misconduct by her father against her, these not being the subject of charges. The sexual misconduct continued until the victim was eighteen years of age. She told no one about these things while they were happening. Her explanation was that her father made various threats to harm her, and to the family, were she to reveal what he was doing. She gave details of those threats. She said that she feared her mother would blame…

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 N, A

Details

AGLC: R v N, A [2004] SASC 409
Case: [2004] SASC 409
Decision Date: 10 December 2004

CaseChat Overview and Summary

The appeal was brought by the appellant against his conviction on two counts of indecent assault and four counts of unlawful sexual intercourse. The trial was held in the Supreme Court and the jury returned guilty verdicts on all counts. The appellant argued that there were errors in the trial judge's directions to the jury that constituted a miscarriage of justice. These included an alleged error in the judge's directions concerning the victim's motive for lying and the judge's failure to direct the jury to ignore a particular assertion made by the victim in cross-examination.

The court considered whether the trial judge's directions to the jury regarding the victim's motive for lying were erroneous and whether this error, along with the failure to direct the jury to ignore a specific assertion made by the victim in cross-examination, amounted to a miscarriage of justice. The court examined the trial judge's directions and the context in which they were given, as well as the impact of the victim's assertion on the trial. The court concluded that, in all the circumstances, there was no miscarriage of justice. The appeal was dismissed, with the judges agreeing that the appeal should be dismissed and that there was nothing to add to the reasons provided by Doyle CJ.

The court held that the trial judge's directions to the jury were not erroneous and that the failure to direct the jury to ignore the victim's assertion did not amount to a miscarriage of justice. The court found that the trial was conducted fairly and that the appellant was not denied a fair trial by the trial judge's directions or the victim's assertion. The appeal was dismissed, and the conviction stood.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In all the circumstances, there was no miscarriage of justice.Conclusion For those reasons I would dismiss the appeal. PERRY J: In my view the appeal should be dismissed. I agree with the reasons published by Doyle CJ. GRAY J: I agree with the orders proposed by Doyle CJ. I have nothing to add to his reasons.

Ratio Decidendi

Legal Principle Established

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