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R v Sciberras

R v Sciberras

Case [2003] SASC 104 11 April 2003

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R v SCIBERRAS
[2003] SASC 104
Court of Criminal Appeal: Perry, Nyland and Bleby JJ

PERRY J: I agree that the appeal should be dismissed for the reasons given by Bleby J.
NYLAND J: I agree that the appeal should be dismissed for the reasons given by Bleby J. I have nothing to add.
BLEBY J:
Introduction
The appellant was charged with one count of unlawful sexual intercourse with a person under 12, one count of gross indecency and one count of indecent assault. The trial Judge directed the jury to find the appellant not guilty on the third count, after having found that there was no case to answer. The appellant was found not guilty on count one, but guilty of the lesser offence of indecent assault. He was found guilty on count two, gross indecency. The appellant was sentenced to a period of three years and two months imprisonment, with a non-parole period of one year and six months. He now appeals against his convictions.
The facts
The charges related to incidents which allegedly occurred while the complainant, whom I will call “C”, was aged between seven and nine years. The appellant was a long term friend of C’s family. He occasionally slept at C’s home.
The first count, on which the appellant was found not guilty, related to an occasion when the appellant slept over at C’s house. C was sleeping in a tent-like cubby house erected in her bedroom. The appellant was sleeping in her bed. The appellant was alleged to have had anal intercourse with C whilst C was in the cubby house. C gave evidence that she had woken up during penetration. By their verdict of guilty of indecent assault, the jury were not satisfied that penetration had occurred. I will refer to this incident as the “cubby house incident”.
The second count, on which the appellant was convicted, related to an incident where C was showering, and the appellant was alleged to have walked naked into the shower and shown C his penis and pulled back his foreskin. C ran from the shower to her mother’s bedroom. At that time her mother was shopping. C was at home because she had chicken pox. I will refer to this incident as the “shower incident”.
The third count, on which the Judge found that there was no case to answer, related to an incident during a New Year’s Eve party at C’s home in December 1999. C was alleged to have been sitting on a stool in her bedroom when the appellant pulled her from behind so that she was touching his groin. That was how the case was opened for the prosecution. In fact, there was no evidence of such an incident, which is why the trial Judge found no case to answer. However, C did give evidence that on the same night she was sitting on a stool in her bedroom when the appellant came and from behind squeezed her breasts with his…

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.

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Details

AGLC: R v Sciberras [2003] SASC 104
Case: [2003] SASC 104
Decision Date: 11 April 2003

CaseChat Overview and Summary

The case of R v Sciberras involves the appellant who was charged with one count of unlawful sexual intercourse with a person under 12, one count of gross indecency, and one count of indecent assault. The appellant was acquitted of the first count but found guilty of indecent assault and gross indecency. The appellant was sentenced to a period of three years and two months imprisonment, with a non-parole period of one year and six months. The appellant appeals against his convictions.

The primary legal issues in the case revolve around the sufficiency of the evidence to support the appellant’s convictions of indecent assault and gross indecency. The appellant argued that the evidence was unreliable and that the jury should have been directed to acquit him on both counts. The court had to determine whether the evidence was sufficient to prove the appellant’s guilt beyond a reasonable doubt, particularly in light of the discrepancies and inconsistencies in the complainant’s testimony.

The court examined the evidence and concluded that, despite some inconsistencies, the jury was entitled to find the appellant guilty if they were satisfied beyond a reasonable doubt. The court found that the complainant’s evidence, though not perfect, was credible enough to support the convictions. The court also noted that the trial judge had properly directed the jury on the necessary elements of the offences and that there was no error in the trial process. The appeal was dismissed, and the convictions were upheld.

No further orders were made by the court. The appellant’s appeal against his convictions was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant was charged with one count of unlawful sexual intercourse with a person under 12, one count of gross indecency and one count of indecent assault. The trial Judge directed the jury to find the appellant not guilty on the third count, after having found that there was no case to answer. The appellant was found not guilty on count one, but guilty of the lesser offence of indecent assault. He was found guilty on count two, gross indecency. The appellant was sentenced to a period of three years and two months imprisonment, with a non-parole period of one year and six months. He now appeals against his convictions.The facts The charges related to incidents which allegedly occurred while the complainant, whom I will call “C”, was aged between seven and nine years. The appellant was a long term friend of C’s family. He occasionally slept at C’s home. The first count, on which the appellant was found not guilty, related to an occasion when the appellant slept over at C’s house. C was sleeping in a tent-like cubby house erected in her bedroom. The appellant was sleeping in her bed. The appellant was alleged to have had anal intercourse with C whilst C was in the cubby house. C gave evidence that she had woken up during penetration. By their verdict of guilty of indecent assault, the jury were not satisfied that penetration had occurred. I will refer to this incident as the “cubby house incident”. The second count, on which the appellant was convicted, related to an incident where C was showering, and the appellant was alleged to have walked naked into the shower and shown C his penis and pulled back his foreskin. C ran from the shower to her mother’s bedroom. At that time her mother was shopping. C was at home because she had chicken pox. I will refer to this incident as the “shower incident”. The third count, on which the Judge found that there was no case to answer, related to an incident during a New Year’s Eve party at C’s home in December 1999. C was alleged to have been sitting on a stool in her bedroom when the appellant pulled her from behind so that she was touching his groin. That was how the case was opened for the prosecution. In fact, there was no evidence of such an incident, which is why the trial Judge found no case to answer. However, C did give evidence that on the same night she was sitting on a stool in her bedroom when the appellant came and from behind squeezed her breasts with his hands. I will refer to this as “the New Year’s Eve incident”. In addition to the incidents which I have mentioned, there were two other incidents which were described by C in evidence. One of these incidents again involved the appellant coming into the shower in a similar manner to that alleged in count 2, whereupon C escaped by locking herself in the toilet until the appellant left the room. The second incident involved the appellant allegedly rubbing his penis against C after they had returned from a meal at a restaurant known as “Charlie’s Diner”. I will refer to this as the “Charlie’s Diner incident”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Sciberras [2003] SASC 104

Most Recent Citation

R v IK [2004] SASC 280

Cases Citing This Decision

R v O, AE [2007] SASC 206
Citation 1 (Para 10)

…t this means satisfaction beyond reasonable doubt: see Nieterink at [83]; R v Kostaras [2002] SASC 326; (2002) 222 LSJS 373 at [51] and R v Sciberras [2003] SASC 104; (2003) 226 LSJS 473 at [39]. That avoids introducing the complication of differing standards of proof.…
R v IK [2004] SASC 280
Citation 2 (Para 14)

…2 CLR 461: see Nieterink at [42] – [80]. The decision in Nieterink has been followed by other members of this Court, most recently in R v Sciberras [2003] SASC 104; (2003) 226 LSJS 473 and in R v Clifford [2004] SASC 104; (2004) 233 LSJS 157. In Nieterink I considered a number of decisions of the High Court, and c…

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Cases Cited

R v Tanner [2004] SADC 149
Citation 1 (Para 17)

…the same victim. As to the directions that should be given to the jury in such a case, Doyle CJ, at [84] referred to a dictum of King CJ in R v Dolan (1992) 58 SASR 501 at 503: “In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the c…
R v Tedesco [2003] SASC 79
Citation 2 (Para 21)

…These passages and the observations of other members of the Court were the subject of detailed analysis by the Chief Justice in R v Tedesco [2003] SASC 79, to which reference is made below. I will not repeat that analysis, other than to indicate that the views expressed by the other members of the High Court in K…
KRM v The Queen [2001] HCA 11
Citation 3 (Para 20)

…McHugh J expressed a similar view in KRM v The Queen (2001) 206 CLR 221 at [35] – [39]: 35.“It seems a reasonable conclusion, therefore, that the experience of the judiciary negates the need for a propensity warning merely because an accused person is charged on a presentment with a number of counts containing the sa…
Gipp v The Queen [1998] HCATrans 212
Citation 4 (Para 19)

…That passage was cited with approval by Callinan J in Gipp v The Queen (1998) 194 CLR 106 at [174].…
Vincent Raymond Jones v The Queen [1997] HCA 56
Citation 5 (Para 20)

…ear arguments that there is such an inconsistency in the verdicts that the convictions are unsafe and must be set aside, cf Jones v The Queen (1997) 191 CLR 439. 37.Thus, although the evidence on one count may show a propensity to commit crime – even crime of the kind the subject of the other charges – the experience…
BRS v The Queen [1997] HCA 47
Citation 6 (Para 18)

…stion is admitted. Indeed, Mr Boylan QC, for the appellant, did not argue in this case that such a warning should have been given. In BRS v The Queen (1997) 191 CLR 275 McHugh J had said, at 305: “If evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful dire…
Jones v The Queen [1997] HCA 12
Citation 7 (Para 20)

…ate courts often hear arguments that there is such an inconsistency in the verdicts that the convictions are unsafe and must be set aside, cf Jones v The Queen (1997) 191 CLR 439. 37.Thus, although the evidence on one count may show a propensity to commit crime – even crime of the kind the subject of the other charges – th…
Pfennig v the Queen [1995] HCA 7
Citation 8 (Para 15)

…conclusion that the appellant was likely, from his criminal conduct or character, to have committed the offences in question: cf Pfennig v The Queen (1995) 182 CLR 461.…
M v the Queen [1994] HCA 63
Citation 9 (Para 18)

…Mr Boylan QC argued, by reference to M v The Queen (1994) 181 CLR 487 that the verdict on the two counts left to the jury was unsafe and unsatisfactory. That test, as formulated by the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ is as follows: “The question is one of fact which the court must decide by ma…
R v Dolan [1992] SASC 3638
Citation 10 (Para 17)

…involving the same victim. As to the directions that should be given to the jury in such a case, Doyle CJ, at [84] referred to a dictum of King CJ in R v Dolan (1992) 58 SASR 501 at 503: “In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges…
Shepherd v The Queen [1990] HCA 56
Citation 11 (Para 12)

…even though that fact is not one of the ultimate facts that constitute the offence. But, as Dawson J pointed out in Shepherd v The Queen (1990) 170 CLR 573 at 579 where: ‘the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be give…
R v Nieterink [1999] SASC 560
Citation 12 (Para 16)

…allenged at the trial or on appeal. It must therefore be treated as being admissible for a reason of the type summarised by Doyle CJ in R v Nieterink (1999) 76 SASR 56 at [41]: “The evidence is, as the judgments state, evidence which places the charged acts in their context, and which might assist the jury in better…

Legislation Cited

No legislation cited in this judgment.