R v Phillips - [2015] SASCFC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PHILLIPS
[2015] SASCFC 67
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Nicholson and The Honourable Justice Lovell)
7 May 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS - OTHER MATTERS
The appellant was convicted of one count of unlawful sexual intercourse committed against his step-daughter. The appellant occasionally shared a bed with the complainant, and it is alleged that on one occasion when the complainant was 14, the appellant penetrated her vagina with his finger. The appellant gave evidence on oath in his defence at trial.
The trial Judge did not adequately direct the jury as to the significance of the appellant giving evidence at his trial. The trial Judge erred in failing to recall the complainant to permit further cross-examination of discreditable conduct evidence of sexual conversations that had arisen during the complainant's re-examination. No direction was given that an adverse inference should not be drawn against the appellant for not putting his version of the conversations to the complainant. The trial Judge failed to direct the jury as to evidence given by the complainant's mother and father as to the reliability of the complainant's evidence.
Appeal allowed; The conviction is set aside, and a re-trial is ordered.
Counsel for the appellant submitted that the verdict was unsafe and unsatisfactory. The case depended upon the jury's assessment of the complainant. There was evidence to support her allegations. This ground of appeal is dismissed.
Criminal Law Consolidation Act 1935 (SA) s 49(3); Evidence Act 1929 (SA) s 34 P, s 34P(2)(a), s 34P(3), S 34P(4), referred to.
R v Copeland (1997) 194 LSJS 1; R v C [2013] SASCFC 137; R v C, G (2013) 117 SASR 162, applied.
R v Ong (2001) 80 SASR 537; R v Szach (1980) 23 SASR 504; R v J, SM [2013] SASCFC 96; The Nominal Defendant v Clements (1960) 104 CLR 476; The Queen v Lavery (1979) 20 SASR 430, discussed.

R v PHILLIPS
[2015] SASCFC 67
Court of Criminal Appeal: Sulan, Nicholson and Lovell JJ

THE COURT: The appellant and defendant, Shawn Thomas Phillips, has appealed against his conviction of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). The particulars of the offence are that between 11 March 2012 and 1 May 2012 at Seaford Rise he had sexual intercourse with BH, a person of the age of 14 years, by digitally penetrating her vagina.
Background
The complainant, BH, was the defendant’s stepdaughter. The defendant was married to and living with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Phillips

Details

AGLC: R v Phillips [2015] SASCFC 67
Case: [2015] SASCFC 67
Decision Date: 7 May 2015

CaseChat Overview and Summary

In *R v Phillips*, the Court of Criminal Appeal of South Australia considered an appeal against a conviction for an offence against the person. The appeal was brought by the defendant, Phillips, who contended that the trial judge had erred in several respects during the trial.

The central legal issues before the appellate court were whether the trial judge had misdirected the jury regarding the admissibility and relevance of certain evidence, and whether the judge had erred in permitting the introduction of specific evidence during re-examination. The defendant argued that evidence relating to conversations about sexual matters, introduced during the re-examination of a witness, constituted evidence of discreditable conduct and therefore required compliance with section 34P of the *Evidence Act 1929* (SA). Furthermore, the defendant argued that even if the evidence was permissible in re-examination, the trial judge should have exercised discretion to exclude it due to its prejudicial effect outweighing its probative value.

The Court found that the trial judge's failure to adequately direct the jury on the relevant matters amounted to a misdirection. Specifically, the court addressed the defendant's contention regarding the evidence introduced in re-examination. The court noted that the cross-examination of the witness, BH, had explored her departure from home and a heated argument with Shawn, during which she called him a "paedophile." In re-examination, the prosecution sought to introduce further details about conversations concerning sexual matters. The defendant argued this was discreditable conduct evidence requiring adherence to s 34P of the *Evidence Act 1929* (SA), or alternatively, that the judge should have excluded it under the discretionary power due to its prejudicial impact.

Allowing the appeal on the ground of misdirection alone, the Court ordered a new trial. The court's reasoning focused on the inadequacy of the directions given to the jury concerning the evidence, particularly the evidence introduced during re-examination, and the potential prejudice it may have caused to the defendant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In our view, the failure of the trial Judge to adequately direct the jury amounts to a misdirection. On this ground alone, we would allow the appeal and order a re-trial. Re-examination/discreditable conduct evidence The defendant contends that the trial Judge was in error in permitting the introduction, in re-examination of BH, of evidence relating to conversations about sexual matters. It is contended that this was evidence of discreditable conduct and, therefore, required compliance with s 34P of the Evidence Act 1929 (SA). It is contended that, even if the evidence was strictly evidence in re-examination, the trial Judge should have exercised his discretion to exclude the evidence on the grounds that its prejudicial effect outweighed its probative value, or that it could not be established that the probative value of the evidence admitted substantially outweighed any prejudicial effect it may have on the defendant.[4][4] Evidence Act 1929 (SA), s 34P(2)(a). The issue arose during the cross-examination of BH in the following way:QAnyway you ran away from home, didn’t you.AYes, I did.QAnd your mother and Shawn didn’t know where you were.ANo, that’s why I ran away from home.QIn fact there was quite a big argument before that.AYes.QYou’d wanted to go to a party.AYeah, I don’t remember.QAnd there’d been some discussion about you perhaps doing some chores before you were allowed to go.AI don’t remember.QYou got very angry about that, didn’t you.AProbably.QThen you said something to Shawn such as ‘you are nothing but a paedophile’.ACorrect.QHe said ‘that’s it, I’ve had enough’.AYes.QThen you said you were sorry and went on pleading that you be allowed to go to the party.AWhat time was this; I ran away twice so I am confused what time you are talking about here. Are you talking about the first time I ran away or the second?QI am talking about the time you ran away and the police found you at [AR’s] house.AYes, that was the last time I saw Shawn, okay, that phone beforehand that he smashed was originally my phone that he had bought for me, it was a Nokia, it wasn’t my sister’s, he smashed that phone which is why I got even angrier which is why I wasn’t allowed. I did get a bit angry, he was horrible and yes, I did call him a paedophile but after that I stormed out of the house.QAt some point after that, on that same day you said you were sorry to Shawn.AI did not speak to Shawn again.QYou left the house and did not say where you were going.ANo.QAt that stage did you have a friend called – a lad, a boyfriend.AYes, I did not have a boyfriend at that stage.QSorry.AI did not have a boyfriend at that stage.QThere was a boy who visited your home on a few occasions.ANo, no boys were in my home while Shawn was there. Are you talking about a boy called ‘[S]’?QYeah.AYes. Yes, he did visit.QAnd you parents knew about him.AYes.QYour mum and Shawn knew about him but then you were found by the police at [AR’s] place.AYes, correct.Q[AR] is a boy.AYes, he is.QHe is your current boyfriend.AYes, he is.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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