R v S, PC - [2009] SASC 380

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v S, PC
[2009] SASC 380
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Nyland and The Honourable Justice White)
17 December 2009
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS
EVIDENCE - ADMISSIBILITY AND RELEVANCY - SIMILAR FACTS
Appeal against conviction – appellant convicted by jury verdict of three counts of indecent assault and one count of gross indecency – whether trial Judge erred in admitting as evidence an alleged admission – whether trial Judge erred in admitting evidence to establish that the appellant had a sexual interest in the complainant – whether verdicts of jury unsafe or unsatisfactory.
Appeal dismissed – evidence of conversation containing alleged admission admissible – evidence of conduct relevant and admissible to prove appellant's sexual interest in and grooming of complainant – evidence of complainant not so unreliable as to render verdicts unsafe or unsatisfactory.
HML v The Queen (2008) 235 CLR 334; Pfennig v The Queen (1995) 182 CLR 461, considered.

R v S, PC
[2009] SASC 380
Court of Criminal Appeal: Duggan, Nyland and White JJ

DUGGAN J: The appellant has appealed against conviction on three counts of indecent assault and one count of gross indecency.
It was alleged that the offences took place between 1985 and 1990. The complainant was aged between 11 and 15 years throughout this period. According to the prosecution case, the offences were part of a course of conduct by the appellant.
The complainant met the appellant through the Scout movement. The appellant was a Scout leader in the complainant’s Scout troop. The appellant became friendly with the complainant and his family. He took the complainant away on camping trips, some of which were arranged by the Scouting Association and others were private trips. It was alleged that the complainant was sexually assaulted on these trips and, on occasions, at the appellant’s house.
The first ground of appeal complains that the trial Judge erred in admitting into evidence an alleged admission to another member of the Scout movement, BM.
BM said in evidence that she was a former group leader of the Scout group to which the complainant belonged. She said that in about 1990 she received a telephone call from AL, who was then a District Commissioner in the Scouting movement. She said he told her that there had been an allegation of improper conduct by the appellant against the complainant.
According to BM she went to the appellant’s place of work and told him that an allegation had been made that he had molested the complainant. She said he replied, “Yes, it’s true”. She said she left after a short conversation and later advised AL of what had transpired. The witness was asked in cross‑examination whether she had been told by AL during the telephone conversation that the complaint arose from an incident involving the appellant in the shower. She denied that this was the case. She…

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, PC

Details

AGLC: R v S, PC [2009] SASC 380
Case: [2009] SASC 380
Decision Date: 17 December 2009

CaseChat Overview and Summary

The appellant was convicted by a jury of three counts of indecent assault and one count of gross indecency. The appeal was against the conviction, challenging the trial judge's decisions to admit evidence of an alleged admission and evidence of the appellant's sexual interest in the complainant. The appellant argued that these decisions were erroneous and led to an unsafe and unsatisfactory verdict.

The court was required to determine whether the trial judge made any errors in admitting the evidence. Specifically, it had to consider if the alleged admission was properly admitted and if the evidence of the appellant's sexual interest in the complainant was relevant and admissible. Additionally, the court needed to assess if the evidence provided by the complainant was unreliable to the extent that it rendered the jury's verdicts unsafe or unsatisfactory.

The court found that the evidence of the conversation containing the alleged admission was admissible. It also found that the evidence of the appellant's conduct was relevant and admissible to establish his sexual interest in and grooming of the complainant. The court further held that the complainant's evidence was not so unreliable as to render the verdicts unsafe or unsatisfactory. Consequently, the appeal was dismissed, and the convictions were upheld.

No additional final orders were made by the court beyond the dismissal of the appeal and the upholding of the convictions.

Orders