R v S, G

Case [2011] SASCFC 48

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v S, G

[2011] SASCFC 48

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Peek)

20 May 2011

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

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - SUBSTITUTED VERDICT OR JUDGMENT

Application to appeal against conviction - applicant charged with three counts of unlawful sexual intercourse against his step-daughter - directed acquittal on count 2 - jury found applicant not guilty on count 1 and convicted the applicant on count 3 - conviction on count 3 relied on evidence of complainant and also on evidence of applicant’s semen which was found on a sheet on complainant’s bed.

Whether verdict on count 3 was unreasonable having regard to the evidence - whether verdict on count 3 was inconsistent with the verdicts of not guilty on the other counts - whether the prosecutor at trial contravened s 18(1)(b) of the Evidence Act 1929 (SA).

Held (Peek J; Doyle CJ and White J agreeing): application for permission to appeal against conviction granted - appeal allowed - the ability of the evidence of the applicant's semen on the sheet to implicate the applicant was dependent upon the credibility and reliability of the applicant, which was undermined at trial in a number of respects - an innocent explanation existed for the presence of the applicant's semen - that was that the complainant had inadvertently placed on her bed a sheet upon which the applicant had previously emitted semen in circumstances other than involving sexual intercourse with the complainant - the measurement of the sheet in no way precluded the sheet having been used on bed of applicant - verdict on count 3 was unsafe and unsatisfactory - trial judge failed to adequately put the defence case regarding the sheet to the jury - prosecutor breached s 18(1)(b) of the Evidence Act 1929 (SA) - conviction set aside and verdict of acquittal substituted.

Criminal Law Consolidation Act 1936 (SA) s 352; Evidence Act 1929 (SA) s 18(1)(b), referred to.
R v Nguyen (2010) 85 ALJR 8; R v B and D (1993) 66 A Crim R 192; Siebel v The Queen (1992) 57 SASR 558; R v Dolan (1992) 58 SASR 501; The Queen v K (1997) 68 SASR 405; R v Hansen (2002) 84 SASR 54, applied.
M v The Queen (1994) 181 CLR 487; Penney v The Queen (1998) 155 ALR 605; R v Perks (1986) 43 SASR 112; R v B and D (1993) 66 A Crim R 192; R v Crnjanin [1965] Qd R 324; R v Schmahl [1965] VR 745; R v Wilkes and Briant [1965] VR 478; R v Curtis (1991) 55 A Crim R 209; R v Gbojueh (2009) 103 SASR…

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R v S, G [2011] SASCFC 48
Case
[2011] SASCFC 48
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Doyle CJ, White J, and Peek J, considered an application for leave to appeal against a conviction for unlawful sexual intercourse. The applicant had been charged with three counts of this offence against his step-daughter. While the jury directed an acquittal on count 2 and found the applicant not guilty on count 1, they convicted him on count 3. The conviction on count 3 relied on the complainant's evidence and the presence of the applicant's semen on a sheet found on the complainant's bed.

The central legal issues before the court were whether the verdict on count 3 was unreasonable or unsupported by the evidence, whether it was inconsistent with the verdicts of acquittal on the other counts, and whether the prosecutor had contravened section 18(1)(b) of the *Evidence Act 1929* (SA). The defence argued that the complainant may have fabricated her story to achieve a desire to return to Tasmania, a defence that was not adequately put to the jury by the trial judge.

The Full Court allowed the appeal, finding the verdict on count 3 to be unsafe and unsatisfactory. The court reasoned that the ability of the semen evidence to implicate the applicant was contingent on the complainant's credibility, which had been undermined during the trial. An innocent explanation for the semen's presence was available: the complainant could have inadvertently placed a sheet on her bed that had previously been used by the applicant in circumstances unrelated to sexual intercourse. The court also noted that the dimensions of the sheet did not preclude it from having been used on the applicant's own bed. Furthermore, the trial judge failed to adequately present the defence's case regarding the sheet to the jury, and the prosecutor had breached section 18(1)(b) of the *Evidence Act 1929* (SA). Consequently, the conviction was set aside, and a verdict of acquittal was substituted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The prosecution case as to the provenance of the purple sheet exhibit P5 was that it had been purchased together with a new bed some time after 26 February 2009; that R was sleeping on that sheet in her new bed when count 3 later occurred on about 16 April 2009 and that the applicant then emitted the semen which was later detected. R’s evidence as to the seized purple sheet exhibit P5 R stated that up until about 26 February 2009 she had been continuously sleeping in a bunk bed.[2] She stated that that date was significant because she was still sleeping in a bunk bed when an uncharged act of unlawful sexual intercourse occurred on 26 February 2009 about which she made an entry dated 27 February 2009 in her diary/journal. She further stated that at some time after this, the bunk bed was replaced by a new bed which the applicant bought at “Fantastic Furniture” and that on that same occasion, but at a different store, the applicant also purchased a new quilt cover and a purple fitted sheet for the applicant’s new bed.[3] I will refer to this sheet as “the newly purchased purple sheet”. The effect of R’s evidence was that the newly purchased purple sheet was fitted to the new bed immediately on purchase and that she started to sleep in the new bed and did so continuously until leaving the house on 3 May 2009.[2] T42-43.[3] T46. R stated that on 16 April 2009 she was sleeping in the new bed when the applicant entered her bedroom and had vaginal sexual intercourse with her. The date of 16 April 2009 was said to be established by reference to an entry R made on “Facebook” about three days after that date. R stated clearly and definitively – and contrary to the prosecution case – that exhibit P5 (the seized purple sheet with semen deposit) was not the newly purchased purple sheet. During examination-in-chief (which was conducted by CCTV) the complainant was shown the seized purple bed sheet, exhibit P5, and said that P5 was not the sheet she had had on her bed; she stated that the newly purchased sheet was a darker purple. The prosecutor later directly showed P5 to R in the same room and the following passage occurs:[4] [4] T63-64.Q:I now ask you about the sheet that I showed you. Can that be reproduced to you in person. I want you to assume that’s the sheet I showed you earlier that you said was a different purple colour to the one you bought. Having seen that now right next to you, how does the colour compare to the one you bought?A: It looks a bit lighter.Q: Does it look closer to like the one you bought?A: Yeah. Yeah, a bit like it.Q:I ask you to look at the dimensions, if it can be held up for you. How do the dimensions of it compare to the sheet you bought?A: What do you mean?Q: The size.A: Yeah, it looks the same size. R was here clearly maintaining that it was not the same sheet and this was made explicit in the following passage of cross-examination when R stated very clearly that the sheet P5 that she was shown was not the sheet that had been bought for her:[5][5] T110.Q: You were shown a sheet yesterday?A: Yes.Q: That was brought into the room?A: Yes.Q: You looked at that sheet?A: Yep.Q: That is not the sheet that was bought that day, was it?A: No.Q;And I think you said that the sheet that was bought that day was a darker purple?A; Yep.Q:I think you said that it looks like but it is not the same sheet. That was the effect of your evidence, wasn’t it?A: Yep.

Decision

Reasons for decision

DOYLE CJ WHITE J PEEK J
And Perry J stated:[32]However, I agree with his Honour the Chief Justice that the argument of the defence that the victim had fabricated her story “in order to achieve her desire to return to Tasmania” was not adequately put to the jury. It is not always sufficient simply to summarise the evidence of each of the witnesses in turn, which is the approach adopted by the learned trial judge in assisting the jury as to the facts of the matter. In my opinion, it is better that the trial judge summarise in his own words the salient features of the defence. With respect to the learned trial judge, the manner in which his summing up was constructed did not bring home the cogency of the evidence suggesting that the complainant may well have had a strong motivation to concoct.(Emphasis added)[32] Ibid 197.Conclusion: the verdict is unsafe and unsatisfactory This was a case where there is not just a question of whether the applicant committed a crime but whether a crime has been committed at all. Putting aside the matter of the sheet P5 for a moment, there is no independent corroborative evidence that the appellant (or anyone else) committed any of the charged offences or uncharged acts and the verdicts on counts 1 and 2 make it plain that the jury were not prepared to act on R’s word alone. The significance of a difference in verdicts in relation to the same kind of offending by the same defendant against the same complainant should usually be assessed by reference to the question of whether the guilty verdict is unsafe or unsatisfactory or unreasonable in all of the circumstances of the case as distinct from examining a suggested inconsistency of verdict in vacuo.[33] The matter of the verdicts of acquittal returned on counts 1 and 2 in the present case is, of course, a major consideration but it is perhaps important to note that the present case is not of the more usually encountered type where the appellant primarily argues, first, that the verdict(s) of acquittal found an inference of jury dissatisfaction with R’s credibility/reliability and, secondly, there is no valid basis of distinction between the count(s) of which the appellant was acquitted and the count(s) of which he was convicted. Rather, the present position is as follows. [33] For example, see R v Gbojueh (2009) 103 SASR 545, 553. First, a finding of dissatisfaction as to R’s credibility/reliability does not depend on an inference to be drawn from the jury’s verdict of acquittal; those verdicts are simply confirmatory of the evidence of unreliability very clearly established in the trial transcript for all to see. Second, the basis of distinction as between the acquittals and the conviction is not in any way here in question: there is no doubt that it was the evidence surrounding the purple sheet P5 that was responsible for the jury’s different verdict in relation to count 3. Third, and most critically, the introduction of the evidence of the purple sheet in relation to count 3 posed a real danger that the jury might overestimate the importance of such evidence and fail to appreciate that its ability to implicate the applicant was in reality dependent upon the reliability of R.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ, WHITE J, PEEK J

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