R v N, RC

Case [2012] SASCFC 37

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v N, RC

[2012] SASCFC 37

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Peek)

18 April 2012

CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

Appeal against conviction - defendant found guilty by jury verdict following trial in District Court of five counts of unlawful sexual intercourse and five counts of indecent assault alleged to have taken place over a number of years, from when the complainant was about five years of age to 13 years of age - where the complainant was a niece of the defendant - where there was significant delay between the time of the alleged offending and the time of trial - where the prosecution case relied on the complainant's evidence.

Whether the Judge failed to give or adequately give a warning, direction or comment about the complainant's evidence, including the reliance on the prosecution case upon her evidence, the assessment of her evidence and the need to scrutinise her evidence with great care - whether the Judge in error in giving the jury a direction pursuant to section 34CB of the Evidence Act 1929 (SA) when that section was not applicable - in the alternative, if such a direction was applicable, whether that given was adequate to avoid a perceptible risk of a miscarriage of justice - whether the Judge failed to adequately direct in relation to the burden of proof and in relation to the evidence given by the complainant's mother - whether verdicts were unsafe and unsatisfactory.

Consideration of the obligations arising from section 34CB of the Evidence Act.

Held (Gray and Sulan JJ): appeal dismissed - section 34CB(1) only abolished the rule of practice known as a Longman warning in the narrow sense - section 34CB(1) does not abolish the duty of a Judge to give a direction warranted by circumstances other than delay and does not abolish the power of a Judge to make a comment about any circumstance, including delay - the Judge gave a direction that brought home to the jury the impact of delay upon the ability of the defendant to challenge the prosecution case and the relevant circumstances, this direction being sufficient - Judge gave an adequate direction to the jury to scrutinise the evidence of the complainant, the words the Judge used conveying a judicial imprimatur - the Judge clearly and adequately directed the jury about the burden of proof borne by the prosecution - no error demonstrated in the Judge's summing up on the topic of the evidence of the complainant's mother - verdicts not unsafe…

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R v N, RC [2012] SASCFC 37
Case
[2012] SASCFC 37
Decision Date

CaseChat Overview and Summary

The appellant, R v N, appealed his conviction in the District Court for five counts of unlawful sexual intercourse and five counts of indecent assault. The alleged offences occurred over several years when the complainant, the appellant's niece, was between five and thirteen years old. The appeal concerned the adequacy of the trial judge's directions to the jury regarding the complainant's evidence, given the significant delay between the alleged offending and the trial, and the prosecution's reliance on the complainant's testimony.

The central legal issues before the appellate court were whether the trial judge failed to give, or adequately give, a warning or direction to the jury concerning the complainant's evidence. Specifically, the court considered whether the judge should have directed the jury to scrutinise the complainant's evidence with particular care, given the lack of independent corroboration, the age of the complainant at the time of the alleged offences, the passage of time, inconsistencies raised by the defence, and the complainant's explanations for those inconsistencies. The court also considered whether the judge erred in giving a direction under section 34CB of the *Evidence Act 1929* (SA), and if applicable, whether that direction was sufficient to prevent a miscarriage of justice. Further, the appeal raised questions about the adequacy of the directions regarding the burden of proof and the evidence of the complainant's mother, and whether the verdicts were unsafe and unsatisfactory.

The appellate court, comprising Gray, Sulan, and Peek JJ, dismissed the appeal. Gray J found that the matters raised did not render the verdicts unsafe or unsatisfactory. The court noted that the complainant's evidence was extensively cross-examined, and the jury's attention was drawn to alleged inadequacies and inconsistencies, both during the trial and in the summing up. The court held that the precise timing of the alleged offences was not a material particular, and it was open to the jury to accept that the events occurred, even if at different times. Sulan J agreed with Gray J, emphasizing that a direction to scrutinise the complainant's evidence with particular care was indeed required due to the prosecution's reliance on it. Sulan J also found that the trial judge adequately directed the jury on the defence case, including the appellant's denials and criticisms of the complainant's testimony, and reiterated the requirement for the jury to be satisfied beyond reasonable doubt of the complainant's evidence on each count.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In the course of summing up, his Honour directed the jury in the following terms:In conclusion, [counsel for the defendant] summarised the three overarching questions. He reminded you of the burden of proof borne by the Crown. He reminded you that you should consider the counts separately and that the exercise that you undertake is not to work out whose evidence you prefer. You would not find the accused guilty of any individual count if you merely suspected he was guilty, or even if you thought he was probably guilty. You would not find him guilty if you did not know where the truth lay. You would only find the accused guilty if you were satisfied beyond reasonable doubt of the complainant’s evidence.Because you are relying largely on the evidence of the complainant alone for the central issues in the trial, you should scrutinise her evidence with particular care. All of those propositions of law are correct. [Counsel for the defendant] did refer to you asking yourself whether you found the accused’s account a reasonable possibility, but really the correct approach is to ask yourselves whether or not you are satisfied beyond reasonable doubt of the evidence of the complaint on the count that you are then considering. [Counsel for the defendant] submitted that you should not be so satisfied in respect of any count.[Emphasis added.] On the appeal, counsel for the defendant submitted that this was an inadequate direction. It was said that it was not given with the authority of the Judge and that the Judge did not identify with any particularity why the evidence of the complainant should be scrutinised with particular care. Counsel for the defendant submitted that there were five aspects of the prosecution case that called for a warning or direction to the jury. They were as follows: there was no independent support to the complainant’s evidence; the complainant gave evidence about events that allegedly happened up to 30 years ago and from a time when she was as young as five years; there was a body of evidence produced by the defence that significantly undermined the complainant’s testimony as to circumstantial features of the case including places, dates and opportunity; that the complainant, when confronted with inconsistencies between her evidence and prior statements, explained those inconsistencies by reference to confusion and muddling; and finally, it was said that there were curious aspects of the complainant’s evidence that raised concerns as to her general reliability and credibility. The Director submitted that the need for any direction must be looked at in the context of the particular facts of this case and the way that the trial was conducted. It was said that the prosecution case relied upon the complainant’s evidence for proof of the acts charged and that this was obvious and was emphasised. There was nothing in the evaluation of the evidence that required the jury to receive special assistance. The issues relevant to whether the complainant may have been unreliable or completely lacking in credit would, it was said, have been obvious to the jury.

Decision

Reasons for decision

PEEK J
I do not consider that any of the matters raised allow the conclusion that the verdicts on the respective counts were unsafe and unsatisfactory. A review of the evidence in the trial discloses a detailed cross-examination of the complainant and the jury’s attention being subsequently drawn to what was said to be material inadequacies and inconsistencies in her testimony. The jury’s attention was drawn again to these matters in the summing up. The precise times relevant to each count were not material particulars. It was open to the jury to accept that the allegations of indecent dealings occurred, but at a different time. I see no reason to disturb the jury’s verdicts on this ground. Conclusion I would dismiss the appeal. SULAN J: I would dismiss the appeal. I agree with the reasons of Gray J, but I make the following observations. I rely on Gray J’s summary of the facts. The prosecution case substantially relied on the evidence of the complainant. The direction to scrutinise the evidence with particular care was required in this case. The trial Judge adequate directed the jury of the defence case. He made it clear to the jury that the appellant denied that the alleged acts of sexual impropriety took place. Not only did the appellant generally deny the conduct, but he refuted the complainant’s evidence about the occasions upon which she alleged specific acts took place. The appellant denied having babysat the complainant on the night she alleged various acts of indecency took place at Port Elliott. The trial Judge referred to the specific denials of the appellant. He pointed out the defence case that the complainant had misdescribed the rooms and furniture, and he reminded the jury about the criticisms of the complainant’s evidence. Further, as to the offending at Waikerie, the trial Judge pointed out the appellant’s specific complaints about the complainant’s inaccurate description of the house, furniture and the occasions upon which the complainant stayed at Orchard House. As to the occasions at Goolwa when the offending took place in the appellant’s car, the trial Judge reminded the jury both of the appellant’s general and specific responses to the allegations. The trial Judge made it clear that, before the jury could convict the appellant, they must be satisfied beyond reasonable doubt of the complainant’s evidence. He referred to the submissions of defence counsel. He said:Mr Crocker for the defence began his address by reminding you of important legal principles, the correctness of which I underline. The prosecution bears the onus of proving its case in respect of each count beyond reasonable doubt. The accused retains the presumption of innocence, unless and until you find him guilty of an individual count. It would not be sufficient to convict him if you merely suspected that he was guilty, or even if you thought it was likely or probable that he was guilty. You would not find the accused guilty of an individual count unless you were satisfied beyond reasonable doubt of the complainant’s evidence on that count. You would not find the accused guilty if you did not know where the truth lay. He submitted to you that you should not approach the case by asking why would the complainant say this if it was not true. While a lack of motive may be of some importance in your consideration of the evidence, it is important to bear in mind my direction to you that it is not for the accused to suggest any motive for the complainant to lie. The burden of proving its case beyond reasonable doubt rests always with the Crown.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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