R v N, SH

[2010] SASCFC 74

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v N, SH

[2010] SASCFC 74

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice David)

21 December 2010

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - JOINDER OF PERSONS OR COUNTS

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE - GENERALLY

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

Appeal against conviction – appellant convicted at trial of two counts of persistent sexual exploitation against a child against his step-daughter and step-granddaughter – whether separate trials should have been ordered – whether judge should have asked jury for special findings in relation to pleaded particulars – whether photographs tendered at trial were inadmissible – whether the verdict of guilty in relation to count 2 is unreasonable and cannot be supported by the evidence.

Held: appeal allowed and convictions set aside – similarity between count 1 and count 2 is unremarkable and falls well short of required probative force to justify cross admissibility – separate trials should have been ordered – judge erred in admitting photographs and failing to direct jury as to their use – open to the jury to be satisfied of the guilt of the accused on count 2 – appeal allowed and convictions set aside – retrials ordered on each count, to be tried separately.

Criminal Law Consolidation Act 1935 (SA) s 50, s 278, referred to.
R v Spanos (2007) 99 SASR 487; De Jesus v The Queen (1986) 68 ALR 1; Sutton v The Queen (1984) 152 CLR 528; R v Hoch (1988) 165 CLR 292; Phillips v The Queen (2006) 225 CLR 202; R v Ellis [2010] SASC 118; M v The Queen (1994) 181 CLR 487; Weiss v The Queen (2002) 224 CLR 300, applied.

R v N, SH
[2010] SASCFC 74

Court of Criminal Appeal:       Sulan, Anderson and David JJ

THE COURT.

Introduction

1. The appellant appeals against his convictions on two counts of persistent sexual exploitation of a child contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). The victims of his offending were his step-daughter (“V1”) (Count 1) and his step-granddaughter (“V2”) (Count 2).

2. Before the empanelling of the jury the appellant sought separate trials in respect of the two counts on the information.  The application was refused by the trial Judge.  The appellant now argues that the failure to order separate trials was erroneous and has resulted in a miscarriage of justice.

3. The appellant also argues that certain photographs tendered at the trial, in relation to count 2 and which were objected to, were inadmissible.  Also in relation to count 2 he argues that the verdict of guilty is unreasonable and cannot be supported having regard to the evidence.

   The charge and the trial

4. We set out the information…