R v S, B - [2006] SASC 319

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v S, B
[2006] SASC 319
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)
18 October 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS
Appeal against conviction - appellant was convicted of three counts of indecent assault and two counts of incest against his young daughter - whether the trial judge gave adequate directions about the standard of proof for evidence of uncharged acts - whether the trial judge gave adequate directions about the permissible use of evidence of uncharged acts - in evidence the appellant said he did not recall the presence of a tree behind which count 1 was said to have taken place - whether the trial judge gave undue emphasis to the prosecutor's argument that the appellant was lying in this respect - held, the trial judge gave the jury appropriate directions in relation to all matters - appeal dismissed.
Criminal Law Consolidation Act 1935 s 56, s 72, referred to.
R v I, K (2004) 89 SASR 406; R v Nieterink (1999) 76 SASR 56, applied.

R v S, B
[2006] SASC 319
Court of Criminal Appeal: Duggan, Sulan and David JJ

DUGGAN J. I agree that the appeal should be dismissed for the reasons given by David J.
SULAN J. I would dismiss the appeal. I agree with the reasons of David J.
DAVID J. The appellant was tried in the District Court on an Information containing five counts. The counts comprised three counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 and two counts of incest contrary to s 72 of Criminal Law Consolidation Act 1935. The alleged victim in each case was the natural daughter of the appellant. The first four counts on the Information are alleged to have taken place in 1983 and the fifth count was alleged to have taken place in 1986. The victim was aged between 13 and 14 years for the first four counts and aged 17 years for count five.
The appellant was convicted on all counts and has appealed against those convictions. He argues that the trial judge misdirected the jury about the standard of proof required for uncharged acts. He also argues that the trial judge erred in the directions he gave to the jury about uncharged acts. Finally, he complains that the trial judge erred in directions he gave to the jury about a potential lie told by the appellant in cross‑examination.
The Charges and the Evidence
The alleged victim (whom I will refer to as “V”) was born in 1969. She is now married and has been so for 15 years. She was born in the United Kingdom and she and her family migrated to Australia in the early 1970s. She has…

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 S, B

Details

AGLC: R v S, B [2006] SASC 319
Case: [2006] SASC 319
Decision Date: 18 October 2006

CaseChat Overview and Summary

The appellant in this case has appealed against his conviction for three counts of indecent assault and two counts of incest against his daughter. The appeal was brought before the court to address specific issues regarding the trial judge's directions to the jury about the standard of proof and the permissible use of evidence of uncharged acts. Additionally, the appellant argued that the trial judge improperly emphasised the prosecutor's argument that the appellant was lying about not recalling the presence of a tree behind which one of the alleged assaults took place.

The legal issues before the court included whether the trial judge gave adequate directions to the jury about the standard of proof for evidence of uncharged acts, whether the judge properly instructed the jury about the permissible use of such evidence, and whether the judge placed undue emphasis on the prosecutor's argument that the appellant was lying about not remembering the tree. The court had to assess if these directions and emphases were appropriate and if they could have influenced the jury's decision.

The court examined the trial judge's directions and concluded that they were adequate and appropriate for the jury's understanding of the issues. The judge was found to have correctly informed the jury about the standard of proof and the use of uncharged acts evidence. The court also determined that the judge did not give undue emphasis to the prosecutor's argument about the appellant's recollection of the tree. Consequently, the court found no merit in the appellant's arguments and dismissed the appeal.

The final orders of the court were to dismiss the appeal against the appellant's convictions on all counts. The court upheld the original verdict, finding that the trial was conducted properly and the jury's decision was based on adequate and appropriate directions from the trial judge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant was convicted on all counts and has appealed against those convictions. He argues that the trial judge misdirected the jury about the standard of proof required for uncharged acts. He also argues that the trial judge erred in the directions he gave to the jury about uncharged acts. Finally, he complains that the trial judge erred in directions he gave to the jury about a potential lie told by the appellant in cross‑examination.The Charges and the Evidence The alleged victim (whom I will refer to as “V”) was born in 1969. She is now married and has been so for 15 years. She was born in the United Kingdom and she and her family migrated to Australia in the early 1970s. She has six brothers and one sister. One of the brothers is deceased. When the family came to Australia she was very young and her parents were separated. She has no early memory of her father. V said that her mother had medical problems, which included alcoholism. When V was about five she went to live with her father while her mother was hospitalised. There was then a disruptive period of her life when she was living with either her mother or her father, or other people. She said she attended approximately 16 different schools due to the changes in her living arrangements. At one stage when she was about nine years old she lived with the appellant in the Riverland, along with two of her brothers, the appellant’s girlfriend (whom I will refer to as “K”) and K’s two children. V said that she lived there for about two years before they all moved to another Riverland town. She said that the house in which they eventually lived was near where the ferries embarked. She was about 12 years of age at that time. V said that in 1983 she was attending high school in the Riverland and was in Year 8. She gave evidence of the appellant doing something to her for the first time. She said that this had occurred in approximately the middle of the year. She described an event where the appellant, whilst in his bedroom with a towel around him, opened the towel and wiggled his body in front of her, showing his penis. She had never seen the appellant naked prior to that event. She gave evidence that he behaved in a similar manner a couple of times after that. V also gave evidence that on some evenings the appellant would go outside and check animals. He would also put away tools. These tools were used for the building of a houseboat on an adjoining paddock. Normally he would go alone. On one occasion after the incident with the towel, V said that he asked her to come with him. She went outside with him. The appellant kissed her on the mouth in a sexual way. That was the first time that anything of that nature had occurred. V gave further evidence that the appellant repeated this behaviour on a number of occasions. As time went on this developed into him rubbing his body against her and touching her breasts and vagina, both on the outside and the inside of her clothing. All of these events took place after dark whilst out in the paddock, and mainly behind trees. That evidence was not the subject of any charge.Count 1

Decision

Reasons for decision

DUGGAN J (dissent) SULAN J (dissent) DAVID J (dissent)

I would reject those grounds of appeal.Conclusion For all of these reasons the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by:

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