R v RD & AD - [2009] SASC 276

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RD & AD
[2009] SASC 276
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)
4 September 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS
The defendants and appellants appealed against convictions arising from a trial in relation to multiple counts of sexual offending with respect to the one complainant - both defendants convicted of separate counts of unlawful sexual intercourse put as an alternative to charges of rape - both defendants jointly convicted of two counts of rape in relation to another incident - whether the guilty verdicts could be supported having regard to the evidence - whether a miscarriage of justice arose - whether all guilty verdicts were unreasonable or unsafe and unsatisfactory having regard to the evidence and verdicts of not guilty on other counts - whether inconsistency between verdicts of not guilty and verdicts of guilty.
Held: appeals dismissed - verdicts of guilty could be supported having regard to evidence - no miscarriage of justice - upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendants were guilty - no inconsistency between the verdicts of guilty and not guilty.
Police v Dorizzi (2002) 84 SASR 403; M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348; R v Stone (unreported, CCA Eng, 13 December 1954); MFA v The Queen (2002) 213 CLR 606, considered.

R v RD & AD
[2009] SASC 276
Court of Criminal Appeal Bleby, Gray and Anderson JJ

BLEBY J. In my opinion both appeals should be dismissed. I agree with the reasons of Gray J.
GRAY J:
The defendants and appellants, RD and AD stood trial on multiple counts of sexual offending with respect to the one complainant.
The defendant RD was charged with the offence of rape alleged to have occurred between 5 February 1993 and 31 July 1993. An alternative count of unlawful sexual intercourse with a person of the age of 14 years was also alleged. The act of sexual intercourse particularised was an act of fellatio. The jury by majority verdict acquitted the defendant RD on the charge of rape and by majority verdict returned a verdict of guilty with respect to the charge of unlawful sexual intercourse. The defendant RD has appealed against this conviction.
The defendant AD was charged with the offences of rape and alternatively unlawful sexual intercourse in respect of the same incident. The act of sexual intercourse particularised was vaginal sexual intercourse. He too was acquitted by majority verdict on the charge of rape and convicted by majority verdict on the count of unlawful sexual intercourse. The defendant AD has appealed…

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 RD & AD

Details

AGLC: R v RD & AD [2009] SASC 276
Case: [2009] SASC 276
Decision Date: 4 September 2009

CaseChat Overview and Summary

The appellants, RD and AD, sought to appeal their convictions from a trial involving multiple counts of sexual offences against a single complainant. The offences included unlawful sexual intercourse, with rape as an alternative charge, and joint convictions for two counts of rape in relation to another incident. The central issue before the court was whether the guilty verdicts could be upheld in light of the evidence presented, and whether there was a miscarriage of justice. A further issue was whether the verdicts were inconsistent, ambiguous, and meaningless, particularly given the verdicts of not guilty on other counts.

The court considered the standard of proof required for criminal convictions, specifically whether the evidence supported the verdicts beyond reasonable doubt. It was noted that the jury's role was to determine the credibility of witnesses and the weight of the evidence, and that the appellate court's role was limited to assessing whether the verdicts were unreasonable or unsafe and unsatisfactory. The court found that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellants were guilty of the offences charged. The court also found no inconsistency between the verdicts of guilty and not guilty, as the jury was entitled to convict on some counts and acquit on others based on the evidence presented to them.

The appeals were dismissed. The court held that the verdicts of guilty could be supported by the evidence, and that there was no miscarriage of justice. The court found no inconsistency between the verdicts of guilty and not guilty, and confirmed that the jury's decision was within their purview. The final orders of the court were that the appeals be dismissed, and the convictions upheld.

Orders