R v Sierke - [2011] SASCFC 53

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SIERKE
[2011] SASCFC 53
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)
10 June 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - GENERALLY
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION
Appeal against conviction of rape – appellant found guilty by judge alone of raping victim by having anal intercourse with her without her consent – appellant and victim were in a sexual relationship – victim alleged appellant had anal intercourse with her against her will – appellant denied the allegation – trial judge was satisfied as to the credibility of victim – trial judge convicted the appellant. Victim was using alcohol and drugs on the night of the alleged rape – whether trial judge should have considered the reliability of victim as distinct from her credibility – whether miscarriage of justice. Trial judge commented that he “scrutinised all the evidence” – whether onus of proof was reversed. Appellant first interviewed by police 13 months after alleged offending – whether trial judge erred in failing to direct himself relating to delay – whether appellant was forensically disadvantaged. Whether verdict was unsafe.
Held: Appeal allowed – trial judge should have considered the reliability of victim – a miscarriage of justice occurred. Trial judge directed himself properly in relation to onus of proof – trial judge did not reverse the onus of proof. Appellant was forensically disadvantaged by delay – trial judge’s failure to direct himself did not, of itself, amount to a miscarriage of justice to justify setting aside the conviction. There was clear evidence which, if believed beyond reasonable doubt, made out the offence – verdict was not unsafe – retrial ordered.
Evidence Act 1929 (SA) s 34CB, referred to.
R v Curtis (1991) 55 A Crim R 209; R v Daniel [2010] SASCFC 62, applied.

R v SIERKE
[2011] SASCFC 53
Court of Criminal Appeal: Duggan, Sulan and David JJ

DUGGAN J: In my view the appeal should be allowed, the conviction set aside and a new trial ordered. I agree with the reasons prepared by David J.
SULAN J: I would allow the appeal. I agree with the reasons of David J.
DAVID J: The appellant was convicted by a judge of the District Court, without a jury, of one count of rape of a female (“V”). The offence was alleged to have occurred in the early hours of the morning of Friday 15 June 2007 at the house at which the appellant was living. The appellant and V were both full time students at university and at the time of the allegation were in a sexual relationship. The Crown case at trial was…

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 Sierke

Details

AGLC: R v Sierke [2011] SASCFC 53
Case: [2011] SASCFC 53
Decision Date: 10 June 2011

CaseChat Overview and Summary

The appeal in *R v Sierke* was brought by the appellant against his conviction for rape, determined by a judge alone. The dispute centred on the appellant's assertion that the victim had consented to anal intercourse, while the victim alleged it occurred against her will. The trial judge found the victim credible and convicted the appellant.

The legal issues before the appellate court included whether the trial judge erred by failing to consider the victim's reliability as distinct from her credibility, particularly given her admitted use of alcohol and drugs on the night in question. The court also considered whether the trial judge's comment about scrutinising all the evidence had the effect of reversing the onus of proof, and whether the delay in police interviewing the appellant 13 months after the alleged offence had forensically disadvantaged him, necessitating a specific direction from the trial judge. The overarching question was whether these factors, individually or collectively, amounted to a miscarriage of justice, rendering the verdict unsafe.

The appellate court allowed the appeal, holding that the trial judge should have considered the victim's reliability separately from her credibility, and that this failure constituted a miscarriage of justice. However, the court found that the trial judge had properly directed himself regarding the onus of proof and had not reversed it. While acknowledging the forensic disadvantage to the appellant caused by the delay, the court determined that this failure alone did not warrant setting aside the conviction. Despite the miscarriage of justice concerning reliability, the court found there was clear evidence, if believed beyond reasonable doubt, that established the offence, and the verdict was not otherwise unsafe. Consequently, the conviction was set aside, and a new trial was ordered.

Orders

Orders of the court

I would allow the appeal. I would set aside the conviction and order a new trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant argues that the verdict was unsafe. Despite the imperfections of the trial judge’s directions in failing to deal adequately with the question of reliability, there is clear evidence by V which, if believed beyond reasonable doubt, makes out the offence. There is no requirement of law that her evidence be corroborated. There was a complaint to the mother and at least one witness (Mark Chatfield) who supported one aspect of her evidence. In my view that submission should be rejected.Conclusion For the reasons given I would allow the appeal. I would set aside the conviction and order a new trial.

Ratio Decidendi

Legal Principle Established

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