R v Sweeny

Case [2008] SASC 300

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SWEENY

[2008] SASC 300

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)

5 November 2008

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION

Appeal against conviction following a trial in the District Court by a judge alone – whether the trial Judge, having identified relevant principles of law, failed to disclose in her reasons how those principles were applied to the facts – whether the trial Judge failed to identify or articulate any basis for the cross-admissibility of evidence of uncharged acts given by the two complainants – whether the verdicts were unsafe and unsatisfactory on the basis that there were material inconsistencies in the evidence of the complainants - Counsel for the Crown accepted that the trial Judge had failed to make any finding as to when the conduct the subject of one count occurred, and accepted that the conviction on that count should be set aside – whether the Judge made inconsistent findings.

Held:  appeal allowed - convictions set aside - retrial ordered - reasons of the trial Judge were materially inadequate - reasons do not allow the conclusion that proper regard was had to relevant evidence, particular risks, weaknesses and risks arising from material inconsistencies, the treatment of uncharged acts, and the issue of cross-admissibility between the evidence of the complainants – there was a real risk that the Judge inappropriately gave weight to evidence of uncharged acts of the two complainants when dealing with particular counts.

Criminal Law Consolidation Act 1935 (SA) s 49 and s 56, referred to.
Fleming v The Queen (1998) 197 CLR 250; R v Keyte (2000) 78 SASR 68; R v Green (2000) 78 SASR 463; R v R [2008] SASC 35; Pfennig v The Queen (1995) 182 CLR 461; Phillips (2006) 225 CLR 303; HML v R [2008] HCA 16; Director of Public Prosecutions (UK) v Boardman [1975] AC 421; Markby v The Queen (1978) 140 CLR 108; Perry v The Queen (1982) 150 CLR 580; Sutton v The Queen (1984) 152 CLR 528; Harriman v The Queen (1989) 167 CLR 590; Hoch v The Queen (1988) 165 CLR 292; Director of Public Prosecutions (UK) v Kilbourne [1973] AC 729; Director of Public Prosecutions (UK) v P [1991] 2 AC 447; S v Queen (1989) 178 CLR 166; Johnson v Miller (1937) 59 CLR 467; Van der Meer v The Queen (1988) 62 ALJR 656, considered.

R v SWEENY
[2008] SASC 300

Court of Criminal Appeal:       Gray, Sulan and David JJ

THE COURT

  1. This is an appeal against conviction following a trial in the District Court by a judge alone. 

  2. This appeal…

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R v Sweeny [2008] SASC 300
Case
[2008] SASC 300
Decision Date

CaseChat Overview and Summary

In the case of R v Sweeny, the defendant appealed against his convictions following a trial by a judge alone in the District Court. The defendant was found guilty of six counts of indecent assault and one count of unlawful sexual intercourse. The defendant's appeal centred on the adequacy of the trial Judge's reasons, the identification and articulation of a basis for the cross-admissibility of evidence of uncharged acts, and the consistency and safety of the verdicts. The Crown counsel conceded that the trial Judge failed to make a finding regarding the timing of the conduct under one count and that this conviction should be set aside.

The central legal issues revolved around whether the trial Judge's reasons were materially inadequate, whether they demonstrated how relevant principles were applied to the facts, and whether the verdicts were safe and satisfactory despite material inconsistencies in the complainants' evidence. Furthermore, the court had to consider whether the Judge correctly identified a basis for the cross-admissibility of the uncharged acts evidence and whether there was a real risk that the Judge gave undue weight to this evidence.

The court held that the trial Judge's reasons were indeed inadequate as they did not allow the conclusion that proper regard was had to relevant evidence, material inconsistencies, the treatment of uncharged acts, and the cross-admissibility issue. The reasons did not clearly demonstrate how the principles were applied to the facts, leading to a real risk that the Judge inappropriately gave weight to the uncharged acts evidence. As a result, the appeal was allowed, the convictions were set aside, and a retrial was ordered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The defence case was that, at the very least, the prosecution had not discharged the burden of proof with respect to each of the seven counts. It was said that there were significant inconsistencies between the evidence of LC and TLG, such that a court could not properly reach the conclusion beyond reasonable doubt of his guilt with respect to any count. It was further argued that LC’s evidence lacked credibility and reliability for a number of other reasons. Emphasis was placed on LC’s failure to draw to the attention of the police or the prosecution the nature of her ongoing contact with the defendant following the cessation of the alleged sexual abuse. It was further the defence case that the very lengthy delay in the proceedings of more than 25 years, the lengthy delay in the making of any complaint by either complainant, together with the death of the defendant’s parents, called for close analysis of the evidence. Such analysis, it was said, would lead to the conclusion that there was a reasonable doubt with respect to each count. The Trial Judge’s Decision Following a trial by Judge alone in the District Court, the defendant was convicted on the six counts of indecent assault, and on the one count of unlawful sexual intercourse. It is relevant to record that the Judge rejected, as unreliable, much of the evidence of LC’s father, mother, and sister. The Judge also rejected, as unreliable, significant aspects of the evidence of LC and TLG, although ultimately, on the critical issues, the Judge accepted their evidence. Further, in respect of significant aspects of the defendant’s evidence, the Judge found his evidence to be both credible and reliable, although the Judge rejected his denials of alleged criminal conduct. A trial judge is entitled to reject part of a witness’ evidence and accept part of their evidence. However, in the course of the appeal, there was a challenge to a number of the Judge’s conclusions in this respect. Ultimately, the trial Judge, notwithstanding adverse comments about major aspects of the evidence of both complainants, concluded that she was satisfied beyond reasonable doubt that their accounts of sexual abuse were credible and reliable, leading her to the conclusion that she was satisfied beyond reasonable doubt of the guilt of the accused with respect to each charge.The Appeal – General ObservationsThe Adequacy of Reasons Underlying the submissions of the defendant was the suggestion that the trial Judge’s reasons were inadequate. It was said that the Judge failed to make all relevant findings of fact, failed to identify the evidence relevant to particular counts, failed to explain why material inconsistencies did not give rise to a reasonable hypothesis consistent with innocence, and failed to address what was said to be material conduct of LC, for some years, following the sexual misconduct that was alleged to be inconsistent with her complaints. Finally it was said that the Judge, although identifying principles of law generally in unexceptional terms, failed, through her reasons, to demonstrate how the principles were applied to the facts.

Ratio Decidendi

Legal Principle Established

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