R v S

Case [2015] SASCFC 179

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v S

[2015] SASCFC 179

Reasons for Decision of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Stanley)

4 December 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

Appeal against conviction for aggravated assault.

The appellant was the husband of the complainant.  He was found guilty of one count of aggravated assault committed in March 2012 and not guilty of one count of rape on the same day and several counts of aggravated assault and rape on other occasions.

The appellant appeals against the conviction on four grounds:

1.       the Judge failed to direct the jury that the date of the offence alleged in the information was a material particular;

2.       the verdict of guilty was inconsistent with the not guilty verdicts on the other counts and the verdict was therefore unreasonable;

3.       the Judge failed properly to direct the jury that the appellant had suffered a forensic disadvantage and the jury must have regard to it when scrutinising the evidence; and

4.       the verdict was unreasonable or cannot be supported having regard to the evidence.

Held Blue J (Kelly and Stanley JJ agreeing):

1.       The date of the offence alleged in the information was not a material particular (at [48]).

2.       The verdict of guilty on count 4 was not inconsistent with the not guilty verdicts on the count alleging rape on the same day or the other counts (at [61]).

3. The appellant did not suffer a significant forensic disadvantage and no direction under section 34CB of the Evidence Act 1929 (SA) was required (at [83]).

4.       The verdict was not unreasonable or incapable of being supported having regard to the evidence (at [97).

5.       Appeal dismissed (at [98]).

Criminal Law Consolidation Act 1935 (SA) s 20(3), s 48, s 285C; Evidence Act 1929 (SA) s 34CB, referred to.
Page v Butcher [1957] SASR 165; R v Dossi (1918) 13 Cr App R 158; R v Pfitzner (1976) 15 SASR 171, discussed.
M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; Phillips v The Queen (2006) 225 CLR 303; SKA v The Queen (2011) 243 CLR 400; R v Andrews-Weatherfoil Ltd (1971) 56 Cr App R 31; R v Blair [2005] SASC 319; R v Kirkman (1987) 44 SASR 591; R v Liddy (2002) 81 SASR 22; R v Nguyen (2010) 242 CLR 491

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AGLC
R v S [2015] SASCFC 179
Case
[2015] SASCFC 179
Decision Date

CaseChat Overview and Summary

The appellant, R, appealed against his conviction on multiple counts of aggravated assault and rape. The complainant, his wife, alleged that the offences occurred at various times between 2009 and 2012. The appeal was heard by Kelly, Blue, and Stanley JJ.

The grounds of appeal raised by the appellant included the trial judge's alleged failure to direct the jury that the date of the offence was a material particular, the contention that the guilty verdict was inconsistent with not guilty verdicts on other counts and therefore unreasonable, the submission that the judge failed to properly direct the jury regarding a forensic disadvantage suffered by the appellant, and the overarching ground that the verdict was unreasonable or unsupported by the evidence.

The court considered the discrepancies in the dates of the alleged offences as presented in the information and the complainant's evidence, noting that for counts 1-3, the alleged dates in the information differed from the complainant's testimony regarding the timing of events. Similarly, for counts 4 and 5, the information alleged a date in May 2009, while the complainant's evidence placed the events later in June 2009. The court also examined the evidence relating to the alleged assault with a wooden dowel and subsequent sexual intercourse. After reviewing the appellant's contentions and the evidence independently, the court concluded that the grounds of appeal did not establish that the verdict was unreasonable or unsupported by the evidence.

Consequently, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against the conviction on four grounds:1.the Judge failed to direct the jury that the date of the offence alleged in the information was a material particular;2.the verdict of guilty was inconsistent with the not guilty verdicts on count 5 and the other counts and the verdict was therefore unreasonable;3.the Judge failed properly to direct the jury that the appellant had suffered a forensic disadvantage and that the jury must take this into account when scrutinising the evidence; and4.the verdict was unreasonable or cannot be supported having regard to the evidence.Background The appellant and the complainant met in early 2006 and married in December 2006.Counts 1 to 3 The complainant gave evidence that in 2009 the appellant punched her in the arm a couple of times and kicked her a couple of times. Following this the appellant had sexual intercourse with her. This was the subject of one count of aggravated assault (count 1) and one count of rape (count 2). The information alleged that this occurred between the end of April and the beginning of June 2009. However, in her evidence the complainant said that it occurred around their daughter’s birthday in late August or in the third or fourth school terms of 2009. The complainant gave evidence that in 2010 the appellant grabbed her by the neck and then by the breasts. Following this the appellant had sexual intercourse with her. This was the subject of one count of rape (count 3). The information alleged that this occurred in May 2009. However, in her evidence the complainant said that it occurred when their second child was conceived. This would have been later in June 2009. In July 2010, the complainant told a friend, V, that the appellant had raped her.Counts 4 and 5 The complainant gave evidence that in 2012 she arrived home in the mid afternoon from food shopping in their regional centre and the appellant was home from work early. He was normally not home until 5.30 pm or later. The appellant was the principal at a school in the local town and the complainant and appellant were living in a house nearby. The complainant told the appellant that while in the regional centre to do the food shopping she had run into an acquaintance T and had lunch with her.[3] The appellant asked the complainant what had been discussed. The appellant was a bit angry and the complainant surmised that the appellant thought that they had talked about school behind his back. The appellant left the house to go to the shed and did not return until between 6.00 and 7.00 pm after she had put the children to bed.[3] The complainant’s evidence was that the lunch was at the Cafe. The location of the lunch became relevant at the trial for reasons which become apparent. The complainant gave evidence that, when the appellant returned, he was carrying a wooden dowel. They both went into the bedroom and had a further conversation about the complainant’s visit to the regional centre. The appellant raised the dowel to hit the complainant, she raised her arms to protect herself and the appellant hit her in the arms with the dowel. The complainant slipped onto the floor and the appellant stood on the back of her knee and hit her on the back. Following this the appellant had sexual intercourse with her. This was the subject of one count of aggravated assault (count 4) and one count of rape (count 5).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considered individually and collectively, the appellant’s contentions and my independent review of the evidence do not establish that the verdict was unreasonable or cannot be supported having regard to the evidence. This ground of appeal fails.Conclusion The appeal should be dismissed. STANLEY J: I would dismiss the appeal. I agree with the reasons of Blue J.

Ratio Decidendi

Legal Principle Established

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