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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CaseChat Overview and Summary
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
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: PEEK J
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