R v O, AE

Case [2007] SASC 206

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v O, AE

[2007] SASC 206

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Layton)

8 June 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES

Sexual offences - uncharged acts - whether evidence of uncharged acts admissible - uncharged acts properly admitted as circumstantial evidence relevant to proof of the charged act - whether trial Judge erred in failing to direct as to standard of proof of uncharged acts - no direction as to standard of proof required.

Held:  appeal dismissed.

R v Nieterink (1999) 76 SASR 56; R v IK (2004) 89 SASR 406, applied.
Tully v The Queen [2006] HCS 56; Gipp v The Queen (1998) 194 CLR 106; BRS v The Queen (1997) 191 CLR 275; Hoch v The Queen (1998) 165 CLR 292; Pfennig v The Queen (1995) 182 CLR 461; P v S, B [2006] SASC 319; R v Clifford (2004) 233 LSJS 157; R v Kostaras (2002) 222 LSJS 373; R v Sciberras (2003) 226 LSJS 473; R v M, RB [2007] SASC 207, discussed.

R v O, AE
[2007] SASC 206

Court of Criminal Appeal:  Doyle CJ, Debelle and Layton JJ

  1. DOYLE CJ:          The appellant was tried before a District Court Judge and jury on an Information alleging one count of indecent assault on L (count 1), and one count alleging that he raped L (count 2).  A charge of unlawful sexual intercourse was laid as an alternative to count 2.

  2. The jury returned a verdict of not guilty on count 1, and a verdict of guilty on count 2.

  3. The appellant appeals against the conviction by leave.  Two grounds of appeal were argued.  First, that the Judge erred in admitting evidence from L of sexual misconduct by the appellant towards her in a period between the incident the subject of count 1 and the incident the subject of count 2.  Second, that the Judge erred in failing to direct the jury that they could use the evidence of the uncharged acts to support a guilty verdict, only if they were satisfied beyond reasonable doubt that those uncharged acts had occurred, or only if they were satisfied beyond reasonable doubt that the course of conduct that they constituted was established beyond reasonable doubt.

  4. The appeal raises yet again the admissibility of uncharged acts (as they are called, and as I will call them for convenience) and the issue of the appropriate directions to be given to a jury about proof of…

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R v O, AE [2007] SASC 206
Case
[2007] SASC 206
Decision Date

CaseChat Overview and Summary

The appeal before the Court involved the appellant, who was convicted of sexual offences against a foster child, L. The appellant challenged both the admissibility of evidence of uncharged acts and the trial judge's direction to the jury regarding the use and standard of proof of such evidence. The Court of Appeal assessed whether the trial judge erred in admitting the uncharged acts as relevant circumstantial evidence and in failing to direct the jury adequately on the standard of proof required for these acts. The appellant argued that the uncharged acts should not have been admitted as they were prejudicial and irrelevant, and that the trial judge's direction did not sufficiently caution the jury on the standard of proof needed for these acts.

The Court held that the evidence of uncharged acts was properly admitted as it was relevant to understanding the nature of the relationship between the appellant and L and to providing context for the charged offences. However, the Court found that the trial judge did not adequately direct the jury on the standard of proof for the uncharged acts. While the uncharged acts were relevant, they needed to be proved beyond reasonable doubt to avoid confusing the jury and to ensure that the evidence was not acted upon unless its truth was established. The Court concluded that the trial judge's omission to direct the jury on the required standard of proof for the uncharged acts was an error.

Despite the error in the trial judge's direction, the Court determined that it did not affect the safety of the appellant's conviction. The evidence of the charged offences was strong and independently supported the conviction. The Court dismissed the appeal against conviction, upholding the appellant's convictions.

Orders

Orders of the court

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Background

Background to the litigation

The appeal raises yet again the admissibility of uncharged acts (as they are called, and as I will call them for convenience) and the issue of the appropriate directions to be given to a jury about proof of uncharged acts. This is an issue on which differing views have been expressed by intermediate appellate courts in Australia: see Tully v The Queen [2006] HCA 56 at [65] Kirby J. It is an issue with which this Court has had to grapple on a number of occasions in recent times.Facts L was born in 1987. In 1993 she and her younger sister were placed in foster care with the appellant’s adult sister. The appellant operated horse stables. L and her sister developed an interest in horses, and often went to the stables. The appellant taught L how to feed and to groom the horses. L went to the stables almost daily. The appellant often ate his meals with his sister and with the two girls. The appellant’s sister often came to the stable. Other young people came to the stables fairly regularly to ride horses. That much was common ground. L said that the incident the subject of count 1 occurred in the latter part of 1999, when she was 12 years old. She was helping the appellant administer an injection to a horse. She and the appellant were alone at the time. She accidentally mishandled the syringe that she was holding. The appellant became angry, and she apologised. The appellant, she said, grabbed her and touched her on the breasts and placed his hand on her vagina outside of her clothing. L did not speak to the appellant or to her foster mother about the incident. The appellant denied the allegation. He recalled an occasion, which he said was some years later, when L was helping him inject a horse. But there were a number of different features to the incident. In any event, he denied sexually assaulting L on the occasion in question. He gave evidence that L’s description of the handling of the horse was not in accordance with his practice or with good practice. L said that the incident the subject of count 2 was in about August or September 2003, about four years later. L gave evidence, an objection to the evidence having been overruled, of a series of acts of sexual misconduct beginning shortly after the incident the subject of count 1. They were indecent assaults involving the appellant touching her breasts and vagina on the outside of her clothes, and inside her clothes, and on occasions inserting a finger or fingers into her vagina. She said that this happened often, almost daily. L said that on occasions she took a meal to the appellant’s room, and sometimes he would be dressed only in his underwear, and would get her to touch his penis on the outside of his clothing. She said that on occasions when they were driving to race meetings the appellant asked her to engage in sexual intercourse, but she always refused. The appellant flatly denied these allegations. He said that other people were often around the stables, including his sister, and that the sort of thing described by L would not have escaped observation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons, the criticisms of the trial Judge’s directions cannot be sustained.Conclusion It follows that the appeal against conviction should be dismissed. DEBELLE J: The evidence of the uncharged acts led in connection with the evidence on count 2 was admissible as evidence proving aspects of the relationship between the appellant and the complainant. It was also admissible to prove that the appellant had a form of sexual attraction for the complainant. I agree with the Chief Justice that the appellant’s challenge to the admissibility of that evidence must fail. On the question of the adequacy of the trial judge’s direction on the uncharged acts, I refer to my reasons in R v M, RB [2007] SASC 207. I will not repeat them. It is sufficient to note that, for the reasons there stated, it is my view that where evidence of uncharged acts consists of allegations of repeated sexual misconduct which is so intertwined with the charged acts, the trial judge must direct the jury that they must be satisfied that the uncharged acts have been proved beyond reasonable doubt. In the particular circumstances of this case, it would have been sufficient if the jury was satisfied beyond reasonable doubt that the appellant had a sexual attraction for the complainant. The trial judge gave a direction as to the use which could not be made of the evidence of the uncharged acts. He then directed the jury as to the use which could be made of that evidence in these terms:That does not mean that the evidence of the uncharged acts is irrelevant. The evidence is relevant. On the prosecution case, the uncharged acts show the nature of the relationship which existed between the accused and [L] during the four years leading up to the feed shed incident, which is the subject of the second and third counts. Without that evidence – without the evidence relating to the uncharged acts – the circumstances of the feed shed incident might appear quite artificial or unrealistic. It would have appeared that after committing the first offence the accused – on the Crown case – did not sexually interfere with [L] for another four years, though she attended his home on a daily basis. Putting it another way, it would have looked as if the feed shed incident had happened out of the blue, so to speak. So that is the permissible use to be made of the uncharged acts, ladies and gentlemen. The evidence is relevant to put the charged offences, and in particular counts 2 and 3, in their proper context, but that is the only legitimate use to be made of this evidence. I repeat, it would be wrong for you to reason – and you must not reason – that the accused must be guilty of the charged acts simply because you happen to be satisfied that he committed one or more of the uncharged acts. This part of the direction contained no reference of any kind to the standard of proof of the uncharged acts. The judge did not even adopt the formula suggested in R v Nieterink (1999) 76 SASR 56 at [83] by Doyle CJ: The jury had to be directed clearly not to act upon the evidence unless satisfied of its truth. It may be that to the extent that the evidence of uncharged acts were circumstantial evidence explaining R’s conduct, and the circumstances of the offences, proof beyond reasonable doubt was not required. But if the evidence was used as proof of a sexual attraction on the part of the appellant towards R, involving the commission of criminal acts, it seems to me that it might have formed an indispensable link in reasoning to guilt, and for that reason would have to be established beyond reasonable doubt; cf R v Ball and Gipp (at 133-134) per McHugh and Hayne JJ. My view is that to avoid confusing the jury, by referring to different standards of proof, the jury should have been told not to act upon the evidence of uncharged acts unless satisfied that those acts were proved, even though, in the light of the judge’s general directions to the jury, that would convey to the jury that what was required was proof beyond reasonable doubt.The judge began by explaining the reason why the prosecution relied on that evidence. However, there was nothing to remind the jury that the uncharged acts were disputed. Indeed, the penultimate paragraph came perilously close to being an endorsement of the prosecution case. The use of the word “satisfied” in the last paragraph of that passage did not amount to a direction that the jury should not act on the uncharged acts unless they were satisfied that they had occurred.

Ratio Decidendi

Legal Principle Established

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