R v Spencer

[2019] SASCFC 70

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SPENCER

[2019] SASCFC 70

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Lovell and The Honourable Justice Hinton)

28 June 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION

The appellant was convicted of Maintaining an Unlawful Sexual Relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The appellant appeals that conviction contending that the primary judge erred in failing to give appropriate directions about an alleged implied admission.

Whether the appellant’s failure to respond to a text message was an admission by silence – use of an agreed fact – failure to direct the jury as to use of evidence - whether the failure to direct the jury resulted in a miscarriage of justice

Held (per curiam), allowing the appeal:

1. The failure to direct the jury on the use of the text message evidence resulted in a substantial miscarriage of justice.

Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 34P, 34R, referred to.
R v Smith (1897) 18 Cox CC 470; R v Grills (1910) 11 CLR 400; R v Salahattin [1983] 1 VR 521; R v Kamleh [2003] SASC 269; Woon v The Queen (1964) 109 CLR 529; R v Christie [1914] AC 545; Barca v The Queen (1975) 133 CLR 82; R v Alexander [1994] 2 VR 249; Burns v The Queen (1975) 132 CLR 258; R v Thompson [2018] SASCFC 104; R v MMJ (2006) 166 A Crim R 501; Nudd v The Queen [2006] HCA 9; Choudhary v Director of Public Prosecutions [2013] VSCA 325, considered.

R v SPENCER
[2019] SASCFC 70

Court of Criminal Appeal:       Nicholson, Lovell and Hinton JJ

THE COURT:

Overview

1. The appellant was convicted of Maintaining an Unlawful Sexual Relationship with K, the complainant, contrary to section 50(1) of the Criminal Law Consolidation Act 1935 (SA). The appellant pleaded not guilty but the jury returned, by majority, a verdict of guilty. The appellant appeals the verdict contending that the primary judge erred in failing to give appropriate directions about an alleged implied admission.

   Issues on appeal

2. There are two grounds of appeal arising from the same issue. In somewhat unusual circumstances, the prosecution introduced a text message sent by K to the appellant to which the appellant did not respond. The prosecution alleged that his failure to respond was an admission by conduct (silence). The appellant contends that his conduct could not be interpreted in that way. The appellant further contends that, even if his conduct could be interpreted as an admission, the primary judge failed to give any directions as to the use that…