R v P, TJ

Case [2019] SASCFC 114

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v P, TJ

[2019] SASCFC 114

Judgment of The Court of Criminal Appeal

(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Doyle)

1 October 2019

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION

CRIMINAL LAW - EVIDENCE - COMPLAINTS - GENERALLY

Appeal against conviction.

The appellant was tried by a jury and convicted of one count of unlawful sexual intercourse with a person of or above the age of 12 years and under the age of 17 years contrary to subsection 49(3) of the Criminal Law Consolidation Act 1935 (SA). The appellant was acquitted of a further seven charges of unlawful sexual intercourse and one charge of indecent assault. The complainant was between 13 to 16 years old at the time of the offending. The appellant was her foster carer.

During trial, the appellant’s counsel introduced evidence of disclosures made to the Department of Families and Communities and to police years earlier that the complainant had been sexually abused by the appellant. There was insufficient evidence to be able to discern which, if any, of these disclosures was an ‘initial complaint’ for the purposes of section 34M of the Evidence Act 1929 (SA). The trial Judge did not give directions on the permissible and impermissible uses of these disclosures in her Honour’s summing up to the jury.

Held per Nicholson J (Stanley J and Doyle J agreeing) allowing the appeal:

1. The disclosures did not fall within and attract the requirements of section 34M of the Evidence Act 1929. However, the evidence of the disclosures constituted evidence of out of court prior consistent statements. The lack of suitable directions by the trial Judge with respect to this evidence gave rise to a miscarriage of justice.

2.       The appellant’s conviction is set aside and the matter is remitted for retrial in the District Court.

Criminal Law Consolidation Act 1935 (SA) s 49, s 56; Evidence Act 1929 (SA) s 34M, referred to.
R v Bucca; R v Castle [2018] SASCFC 42, applied.
R v Jones [2018] SASCFC 80; R v Lowe [2016] SASCFC 118, discussed.
MFA v The Queen (2002) 213 CLR 606; The Nominal Defendant v Clements (1960) 104 CLR 476; Kilby v The Queen (1973) 129 CLR 460; Livermore v The Queen (2006) 67 NSWLR 659; R v Callaghan (1993) 70 A Crim R 350, considered.

R v P, TJ
[2019] SASCFC 114

Court of Criminal Appeal:   Stanley, Nicholson and Doyle JJ

  1. STANLEY J:         I agree with the reasons of Nicholson J and the orders he proposes.

    NICHOLSON J.

    Introduction

  2. On 6 November 2018, following a trial before a jury in the District Court, the appellant was convicted of one count of unlawful…

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R v P, TJ [2019] SASCFC 114
Case
[2019] SASCFC 114
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CaseChat Overview and Summary

The appeal concerned a conviction for unlawful sexual intercourse contrary to section 49(3) of the Criminal Law Consolidation Act 1935 (SA). The appellant, R v P, TJ, was tried on nine counts of sexual offending against a complainant who was in his foster care between the ages of 13 and 16. The jury acquitted the appellant on eight counts but convicted him on count 5, which alleged an act of penile-vaginal intercourse. The appeal was heard by Stanley, Nicholson, and Doyle JJ.

The central legal issue before the Full Court was whether the trial judge had failed to adequately direct the jury regarding the distinction between count 5 and the other counts, particularly in light of the differing evidentiary bases. Specifically, count 5 was supported by independent evidence, whereas the other counts relied solely on the complainant's testimony. The appellant argued that this difference in evidence, coupled with the jury's acquittal on the majority of charges, created a risk of miscarriage of justice.

The Court allowed the appeal on the basis of the first ground, finding that the trial judge's directions were insufficient to address the potential for jury confusion arising from the distinct evidentiary support for count 5 compared to the other counts. While acknowledging that the jury was entitled to accept some of the complainant's evidence and reject other parts, the Court concluded that the lack of specific guidance on how to approach the differing evidential strengths created a real possibility of a miscarriage of justice. The Court noted that the jury's acquittal on most charges did not necessarily imply disbelief of the complainant but could reflect a cautious approach.

Consequently, the conviction in respect of count 5 was set aside, and the matter was remitted to the District Court for a new trial.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I would allow the appeal on the basis of ground 1. As such, it is not necessary to reach a conclusion with respect to ground 2 or ground 4.Background and the course of the trial On 23 January 1991, when the complainant was not quite five years of age, she was placed under the guardianship of the Minister until she was to turn 18. She had a long term placement with the N family from 10 July 1990 to 5 October 1999. From 5 October 1999 to 15 June 2002 she was in the foster care of the appellant and his family on the appellant’s farm in rural South Australia. According to the Crown case, it was during this period, when the complainant was aged between 13 to 16, that the appellant committed multiple sexual offences against the complainant. The appellant was tried with respect to nine counts of sexual offending. Count 1 alleged an offence of indecent assault contrary to section 56 of the Criminal Law Consolidation Act 1935 with respect to which the jury was discharged because they were unable to reach a verdict. Counts 2 to 9 inclusive each alleged a separate act of unlawful sexual intercourse contrary to subsection 49(3) of the Criminal Law Consolidation Act 1935. The eight allegations included one act of causing the complainant to perform fellatio upon the appellant and seven acts (including that for count 5) of penile-vaginal intercourse. The appellant was acquitted of each of these counts with the exception of count 5. Count 5, in contrast to the other counts, was supported by evidence independent of that of the complainant. This evidence directly contradicted the account of the appellant and his wife in important circumstantial respects. The other counts depended solely on the evidence of the complainant as to conduct said to have occurred in private between her and the appellant in various locations on the farming property where she was living and helping with the work. It is unnecessary to canvass this additional evidence which, on one view, strengthened the prosecution case with respect to count 5. The appellant has acknowledged that there was a materially different evidentiary basis with respect to count 5. As such, there is no scope for (and no appeal ground asserting) a contention that the verdict on count 5 is unsafe on the basis of inconsistency between the verdict of guilty with respect to count 5 and the verdicts of not guilty with respect to counts 2 to 4 and 6 to 9. The evidence of the complainant The complainant at the time of giving evidence was 32 years of age. She explained that her first permanent foster placement when she was about four was with the N family but she was unhappy there and moved to live with the appellant’s family with whom her older sister, J, was also living. Initially the relationship with the appellant and his wife was a good one. However, it changed when the appellant started to sexually abuse her. She said that he would regularly create opportunities to have sexual intercourse with her. The complainant described in some detail the nine individual incidents relied on with respect to counts 1 to 9. She was unable to give a date for any of the counts but did identify them quite carefully with respect to the circumstances of their occurrence. Apart from count 5, each alleged offence was described as occurring somewhere on the farm or in the house when the complainant and the appellant were alone. On each occasion the appellant gave the complainant $50 from his wallet except on one occasion when he gave her $80. Typically, the appellant would plead with the complainant for sex and whilst she was resistant and uncooperative she ultimately gave into him and took the money.

Evidence

Evidence Before The Court

Count 5 was different in that it was said to have occurred on an occasion when the complainant and the appellant were at Murray Bridge and stayed in a hotel. There was independent evidence from the son of the hotel owner and from a man who knew the complainant. The former gave evidence of the hotel record keeping particularly concerning a booking in the name of the appellant and inferences concerning actual occupancy that might be drawn. The latter gave evidence of seeing the complainant and “her father” in Murray Bridge on two occasions on the same night. The evidence of these two witnesses supported the complainant’s account in important respects and challenged the appellant’s account that he simply drove to Murray Bridge to pick up the complainant and bring her home. Evidence of the appellant The appellant was 73 at the time of the trial and in his mid-fifties at the time of the alleged offending. He and his wife started fostering children in 1996 and had had about six children on a long term basis. He described the complainant as a difficult foster child with whom he did not get along. She had difficulties at school and was suspended frequently and the appellant did not have much to do with her. According to the appellant, the complainant did not help on the farm very much. He specifically denied engaging with the complainant on the farm in various ways alleged by the complainant as providing the context within which he offended against her. He consistently denied any sexual misbehaviour and addressed each of the allegations of sexual misconduct put against him by the complainant. His explanation of the circumstances of the Murray Bridge visit was quite different from that given by the complainant and the independent witnesses. A number of other persons, including the appellant’s wife and Mrs N, also gave evidence for the defence. That evidence was broadly supportive of that given by the appellant. In particular, the appellant’s wife gave evidence about the circumstances of life at home and on the farm and to the effect that she saw no misbehaviour by her husband much less any indication that he had engaged in sexual intercourse with the complainant on 50 to 100 occasions. Ultimately, the jury was faced with a contest between the evidence of the complainant given on oath and that given by the appellant on oath. The Crown case was dependent on the jury being satisfied beyond reasonable doubt as to the credibility and the reliability of the complainant’s evidence concerning the conduct of the appellant with respect to each of the charged counts. As it happens, they were not so satisfied with respect to counts 2 to 4 and 6 to 9 but were so satisfied with respect to count 5. We can never know the precise reason why the jury drew a distinction between count 5 and the other counts. The not guilty verdicts do not necessarily imply disbelief or want of confidence in the complainant’s evidence. They may simply reflect a cautious approach taken by the jury to the heavy responsibility undertaken.[1] The verdicts are consistent with the jury having adhered to the separate consideration direction given by the Judge and consistent with having exercised their entitlement to accept as reliable some but not all of the complainant’s evidence or with having taken a cautious, perhaps merciful, approach to the task that was before the jury. [1] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [34].

Decision

Reasons for decision

NICHOLSON J
Fourth, again as the respondent has submitted, whilst not determinative, the fact that the jury acquitted on most charges supports a conclusion that the jury was not overborne or misled by the comments.Conclusion I would allow the appeal on the basis of ground 1. I would set aside the conviction with respect to count 5 and remit the matter to the District Court for a new trial. DOYLE J: I agree with the reasons of Nicholson J, and with the orders he has proposed.APPENDIX AAppeal Ground 2Comment 1Now, it's difficult to think that anyone could sexually abuse a young girl, they arenot easy things to think about, but it does happen and often it involves persons you never think could do such a thing, persons of good reputations, persons with no criminal history.Comment 2Generally in these cases you don't have any independent evidence to corroborate any particular charge, but I suggest here you do.Comment 3More often than not, sadly we are dealing with alleged sexual offending against children, often the allegations don't come to light until sometime later, and here the allegations, at least in full didn't come to light until March 2015 and that's some 13-15 years after the alleged event.Comment 4[The appellant’s counsel] referred to the complainant providing police with six statements and yet, in terms of the actual conduct she describes in relation to each and every charge, he didn't point to one inconsistency of her version.Comment 5There was no opportunity for DNA testing or medical examinations that would support what [the complainant] has told you. This puts her at a disadvantage, and of course it puts the defendant at a disadvantage too. You'll no doubt hear from [the appellant’s counsel] about that and the judge will give you a direction about that, but that is the very nature of these offences; behind closed doors, no witnesses to the actual offending, the power imbalance between the child and the adults involved and the allegations not coming to light, therefore, until a much later date.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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