R v Simpson No. Sccrm-84-99 Judgment No. S348 - [1999] SASC 348

R v SIMPSON
[1999] SASC 348

Court of Criminal Appeal: Doyle CJ, Bleby and Wicks JJ

DOYLE CJ. The appellant appeals against his conviction on two counts of rape. The only ground of appeal is that the judge erred in failing to discharge the jury after publication on television, after the jury was empanelled and before evidence began to be taken, of certain material said to be prejudicial to the appellant.

Facts

At the time of the events in question the appellant was a police officer. He was charged with two counts of rape alleged to have been committed on 13 April 1997 at Whyalla, a country town in South Australia.
He was tried before a judge of the Supreme Court and a jury in March 1998. The appellant admitted having had intercourse at the relevant time with the complainant. The appellant said that the intercourse was consensual. He had met the complainant a few hours earlier at a local hotel.
In August 1998 the Court of Criminal Appeal set aside the conviction, and ordered a retrial. The Court quashed the conviction on several grounds. The complainant had given evidence that the appellant appeared to be drunk at the time of the offence. The appellant denied that he was drunk. The Court held that as the issue of intoxication had been raised, directions had to be given as to the possible effect upon the appellant’s perception of events, even though the appellant placed no reliance on the effects of alcohol. The Court held that the directions on the issue were inadequate. The trial judge’s directions were also held to be inadequate in relation to certain medical evidence about an injury that the complainant claimed to have received, and in relation to certain threats that the complainant alleged the appellant made to her. The Court also said that there was some substance in the complaint of a failure to put the defence case adequately, but the Court did not finally decide that point.
The appellant was re-arraigned on 23 March 1999 before a Supreme Court judge. He again pleaded not guilty. The judge conducted a voir dire relating to the admission of certain evidence, and gave his ruling.
On 24 March 1999, after some short submissions relating to evidence to be led, a jury was empanelled. For reasons that do not matter the trial was adjourned to the following morning, for the taking of evidence to begin then. Although it is not recorded in the transcript, it is clear that either before or after the jury were empanelled the judge told the jury that the appellant had been tried previously, that the trial had miscarried (T70, T79) and that the proceedings before them were a retrial. The judge deliberately avoided telling the jury that the appellant had been convicted at the earlier trial.
On the evening of 24 March, Channel 9, one of five television stations operating in Adelaide, published an item about the trial in its evening news service. 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.

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Details

Case: [1999] SASC 348
Decision Date: 27 August 1999

CaseChat Overview and Summary

In R v Simpson, the appellant, a former police officer, was convicted of two counts of rape. The Court of Criminal Appeal had previously quashed the conviction on several grounds, including inadequate directions to the jury regarding the issue of intoxication, and ordered a retrial. During the retrial, a television news item was broadcast that mentioned the appellant's previous conviction and five-year sentence for the same offence. Some jurors became aware of this information, which prompted the appellant's counsel to seek a discharge of the jury on the grounds that the appellant could not receive a fair trial. The trial judge decided to proceed with the trial after giving an appropriate warning to the jury and receiving an assurance from them that they could put the prejudicial material out of their minds. The appellant appealed against his conviction, arguing that the judge erred in not discharging the jury. The primary legal issue in this case was whether the trial judge erred in deciding to proceed with the trial despite the prejudicial information coming to the jury's attention. The Court considered the relevant principles for determining whether a fair trial was possible in the face of prejudicial publicity. The Court held that it was open to the trial judge to proceed with the trial, as the prejudicial material did not irretrievably prejudice the appellant's right to a fair trial, taking into account the warning given by the judge and the assurance received from the jury. The Court also considered the approach taken by the trial judge in dealing with the prejudicial material, including allowing the jury to consider the matter collectively and individually. The Court concluded that the trial judge's approach was appropriate and did not result in a miscarriage of justice. Therefore, the appeal was dismissed, and the conviction was upheld.

Orders