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R v S, PC

R v S, PC

Case [2008] SASC 285 29 October 2008

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v S, PC
[2008] SASC 285
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice Kelly)
29 October 2008
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - ADMISSIBILITY - OTHER CASES
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CHARACTER AND PREVIOUS CONVICTIONS - RELEVANCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appeal against convictions for three counts of indecent assault and one count of gross indecency - prosecution alleged a course of sexual conduct by the appellant towards the complainant which included uncharged acts - complainant gave evidence that the appellant also arranged for naked photographs to be taken of the complainant by a professional photographer, supposedly to depict how his body was changing through puberty - defence counsel said the evidence suggested an innocent purpose and submitted the jury should be directed they should not use the evidence for any purpose - prosecutor submitted the evidence tended to establish that the appellant had a sexual passion towards young boys - prosecutor made this same submission to the jury in closing address and suggested the motivation for having the photographs taken was for the accused's own gratification - the summing up left it open to the jury to use the taking of the photographs as evidence of a general propensity to commit offences against young boys.
Held: It was necessary to give the jury a clear warning that the evidence of the photographs could not be used for any purpose based on general propensity reasoning - discussion as to whether the evidence could have been led to establish a particular sexual interest by the appellant in the complainant - appeal allowed - retrial ordered.
Criminal Law Consolidation Act 1935 (SA) s 58A(1), referred to.
HML v The Queen (2008) 245 ALR 204; R v Turney (1990) 52 SASR 438; Makin v Attorney General (NSW) [1894] AC 57; B v The Queen (1992) 175 CLR 599; Pfennig v The Queen (1995) 182 CLR 461; Thompson v The King [1918] AC 221; The Queen v Von Einem (1985) 38 SASR 207, considered.

R v S, PC
[2008] SASC 285
Court of Criminal Appeal: Duggan, Anderson and Kelly JJ

DUGGAN J: The appellant was found guilty by a jury of 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 is a male person born on 26 May 1974. The appeal is against the convictions recorded.
The complainant first met the appellant through the scouting movement. The appellant became friendly with the complainant’s family. The prosecution case alleged a course of sexual conduct by the appellant towards the complainant which included uncharged acts. According to the prosecution case…

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 [2008] SASC 285
Case: [2008] SASC 285
Decision Date: 29 October 2008

CaseChat Overview and Summary

In the case of R v S, PC, the appellant faced convictions for three counts of indecent assault and one count of gross indecency. The prosecution alleged that the appellant had engaged in a series of sexual acts with the complainant, including uncharged acts. Additionally, the complainant testified that the appellant had arranged for professional photographs to be taken of her in the nude, purportedly to document the changes in her body during puberty. The defence argued that the evidence of the photographs suggested an innocent purpose and requested that the jury not use this evidence for any other purpose. Conversely, the prosecution contended that the photographs indicated a sexual interest in young boys on the part of the appellant.

The court was required to determine whether the trial judge adequately directed the jury on the admissibility and proper use of the evidence regarding the photographs. Specifically, the court needed to address whether the jury could consider this evidence to infer a general propensity of the appellant to commit offences against young boys. Furthermore, the court had to assess whether any misdirection by the trial judge warranted a retrial.

The court found that the trial judge did not sufficiently warn the jury that the evidence of the photographs could not be used to infer a general propensity to commit offences against young boys. The court emphasised that such evidence could only be considered if it established a particular sexual interest in the complainant. Given that the trial judge's summing up left it open to the jury to use the evidence for general propensity reasoning, the court concluded that this constituted a misdirection. Consequently, the appeal was allowed, and a retrial was ordered.

Orders