R v S, MD - [2017] SASCFC 131

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v S, MD
[2017] SASCFC 131
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)
13 October 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED
Appeal against conviction.
The appellant was convicted by jury in the District Court for unlawful sexual intercourse and indecent assault committed against his stepdaughter (V) over a period of approximately three years between 1998 and 2001. V testified as to six specific instances of offending which formed the charged offending as well as other uncharged occasions of unlawful sexual intercourse. V particularised her complaints by reference to, among other things, the schools she attended and the houses which the family lived in. V and her mother also gave evidence that the appellant was a generally violent man. The appellant denied any offending.
On appeal, the appellant complains that the Judge’s summing up unfairly bolstered the appellant’s credit, did not direct the jury as to the forensic disadvantage arising out of the passage of time between the offending and the trial, allowed the uncharged offending (both sexual and violent) to be used impermissibly, did not adequately present the defence case, and inadequately directed the jury as to prior inconsistent statements made by the appellant.
Held per Kourakis CJ (Peek and Nicholson JJ agreeing), dismissing the appeal:
1.      The Judge’s direction as to the appellants’ memory was permissible. It is commonly accepted, and expert evidence is not required to prove, that some human memories are retained vividly and others are forgotten.
2. The Judge’s direction pursuant to s 34CB of the Evidence Act 1929 (SA) regarding the forensic disadvantage suffered by the appellant as a result of the passage of time was appropriate. The Judge’s failure to use the word ‘significant’ or similar did not occasion a miscarriage of justice.
3.      The Judge comprehensively withdrew his erroneous direction on the inappropriate propensity use of the uncharged offending.
4.      The Judge’s reference to the single occasion of the first uncharged act as a pattern is a misdescription but did not occasion a miscarriage of justice.
5.      The Judge adequately directed the jury as to how V’s testimony could be used, including where V's evidence was inconsistent with the appellant’s defence.
Evidence Act 1929 (SA) s 34CB, referred to.
R v N, RC (2012) 112 SASR 399, discussed.

R v S, MD
[2017] SASCFC 131
Court of Criminal Appeal: Kourakis CJ, Peek and Nicholson JJ

KOURAKIS CJ: On 8 March 2017, the appellant was found guilty of one count of indecent assault[1] and five counts of unlawful sexual intercourse.[2] The…

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, MD

Details

AGLC: R v S, MD [2017] SASCFC 131
Case: [2017] SASCFC 131
Decision Date: 13 October 2017

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, R v S, MD, for criminal offences. The complainant, V, gave evidence detailing a history of violence and sexual abuse perpetrated by the appellant, who was her stepfather. The dispute on appeal centred on alleged misdirections and non-directions by the trial judge concerning the presentation of the defence case and the complainant's evidence. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Peek and Nicholson JJ.

The legal issues before the court included whether the trial judge had misdirected the jury regarding the complainant's testimony about the appellant's violence, specifically addressing inconsistencies in her statements. The appellant also contended that the judge had failed to properly direct the jury on how to consider the complainant's evidence in light of her explanations for prior denials of abuse. Further grounds of appeal related to the presentation of the defence case and specific evidentiary rulings.

The court dismissed the appeal on most grounds, including the ground concerning the judge's summation of the complainant's explanation for her prior denials of the appellant's violence. The Chief Justice's reasons, with which Peek and Nicholson JJ agreed, indicated that the trial judge had accurately summarised the complainant's evidence regarding her reasons for initially denying the appellant's violent conduct. These reasons included her fear of repercussions if she and her mother returned to live with the appellant, and her distressed state during a previous trial. The court found no misdirection or non-direction that would warrant setting aside the conviction.

Permission to appeal was refused on one ground, which concerned a decision to disallow a question during cross-examination. The appeal was ultimately dismissed on all grounds.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

My reasons follow.The evidence V gave evidence at her trial. She is now 31 years old. When V was three her mother commenced cohabitation with the appellant. V only learnt that the appellant was not her biological father when she was about eight years old. V described the relationship between M and the appellant as mostly violent. They yelled and screamed as well as punched and wrestled each other. They fought or argued every one or two weeks. V testified that when they argued the appellant threatened her mother, who suffered from a major psychiatric disorder, that if she did not shut up he would take her back to Glenside Hospital. V testified that she was scared that she would lose her mother. V testified that she first witnessed violence when the family was living at their first house in Blair Athol. She gave evidence that M and her stepfather were arguing about money when the fight moved to the front yard where she saw them throwing punches at each other and kicking each other while wrestling on the ground. The next violent incident V recalled took place in a house at Parafield Gardens. Once again an argument started about money. M threw a drawer of a filing cabinet at the appellant, who responded by rugby tackling her. V ran away, but as she was running away she saw her stepfather sitting on top of and punching M with both hands ‘one after another’. V testified that after that incident she and M moved into a women’s shelter. V gave evidence that she was about 15 at the time and agreed that it was probably in October 2001. V also described occasions when the appellant was violent to her and her brother. On one occasion at their house in Parafield Gardens house the appellant lifted her brother up by the throat and threw him up against a wall. According to V, the appellant violently disciplined her and her brother. He hit them as hard as he could on the palm of their hands with a metal or wooden ruler. V said that after such beatings she was unable to make a fist. The appellant also hit V and her brother on the backside. They were only hit on the backside when they were really naughty, and it was usually with a belt against their bare backside. Unsurprisingly, V said that she was scared of the appellant. V testified that the appellant first sexually assaulted her and she was still in primary school when the family was living in Blair Athol. V identified the first assault by reference to an occasion on which she was to help her aunt J deliver pamphlets. She first made the appellant a cup of tea and took it to him in his bedroom whilst aunt J and V’s mother were waiting outside. In the bedroom the appellant massaged one of her breasts, underneath her singlet top, for a minute of two. V testified that it happened on a hot day during summer, which was why she was wearing a tank top. That assault was not a charged act. V gave the following evidence on when the first incident occurred:Q.Can you just say what happened the very first time that you say that [the appellant] inappropriately touched you.A.What would you like me to say?Q.Well, do you know what year it was.A.The same year I had FAYS [Family and Youth Services] come and see me. 1998.Q.And was it at the beginning of 1998.A.Yes.Q.And it was summertime, was it.A.Yes.Q.So does that mean it occurred over the summer of ‘97, ‘98.A.It was the beginning of 1998.Q.So it couldn’t have been the end of 1998.A.No.Q.It was definitely the beginning of 1998.A.Yes.Q.And why are you sure about that.A.Because it was the beginning of the year, beginning of year 7.Q.So it was the beginning of the year when you were at [Primary School].A.Yes.Q.And you were doing a pamphlet run with your Aunt [J].A.Yes.Q.Had you delivered the pamphlets.A.No, not yet. She just come to pick me up. It was after school.Q.So it had been a school day.A.Yes.Q.And you had been to school that day.A.Yes.Q.So it wasn’t during the school holidays.A.No.

Decision

Reasons for decision

The appellant also complains that the Judge put a gloss on V’s testimony as to why she had denied violence on the appellant’s part. On that issue, the Judge said:[74]I remind you here that when asked about the inconsistency between what she said in evidence about the accused being violent and what she said about him not being violent many years before, she said that when [V] said many years before that he was not violent, she was living in a women’s shelter where she had gone with her mother and that there had been occasions in the past when her mother and the children had left but her mother had chosen to go back to the accused. And so [V]’s explanation for saying to the social worker that he had not been violent to her was because she did not want to be in trouble with him if they went back to live with him again. And with respect to the apparent inconsistency about what she said to the first jury on the mistrial and what she said to you the following day about count one, she said she was frazzled on the first occasion and she told you that she even “threw up”, to use her words. That passage summarises both V’s cross-examination and re-examination on the topic of why she denied any abuse by the appellant.Conclusion I would dismiss the appeal on ground 2. I would grant permission but dismiss the appeal on grounds 1, 3, 4, 6 and 7. Permission to appeal on ground 5, which complained of a decision to disallow a question in cross-examination, was refused by a Judge of this Court and the application was not renewed before this Court. PEEK J: I would dismiss the appeal. I agree with the orders and reasons of the Chief Justice. NICHOLSON J: I would dismiss the appeal. I agree with the orders and reasons of the Chief Justice.

Ratio Decidendi

Legal Principle Established

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