R v P, TJ

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.