R v T

Case [1999] SASC 242 11 June 1999

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R v T
[1999] SASC 242

Court of Criminal Appeal: Doyle CJ, Prior and Mullighan JJ

DOYLE CJ I would allow the appeal against conviction. I agree with the reasons given by Prior J. I agree also with the reasons given by Mullighan J, save that I do not accept that the conviction on Count 1 is inconsistent with the acquittal on Count 5.
I agree with Mullighan J that a retrial should not be ordered on Count 1. A judgment and verdict of acquittal should be entered on that Count.
Usually the decision whether a retrial will take place should be left to the Director of Public Prosecutions. An order for a retrial does not require the Director to proceed. But in a number of cases this Court has declined to order a retrial when an accused person would face a significantly different case on the retrial from that faced at trial. I consider that this is one of those cases.
Count 2, on which the jury were unable to agree, is not before this Court. The Court is not able to make any order in respect of that Count. It is for the Director to decide what is to happen on that Count.

PRIOR J This is an appeal against a conviction upon one count of indecent assault. The appellant was tried upon an information which alleged two separate offences of indecent assault and three of unlawful sexual intercourse with a young person between February 1989 and June 1992. The jury returned a majority verdict of guilty on the first of the indecent assault charges. It was unable to agree as to the second and returned not guilty verdicts on the three counts of unlawful sexual intercourse.
The appellant complains of a ruling made by the trial judge about the consequences of cross-examination of the complainant with respect to photographs taken of one or two other people. The trial judge had ruled that if the appellant’s counsel cross-examined the complainant in relation to an allegation by the complainant that photographs were taken of another person, the prosecution would be entitled to lead evidence in re-examination of alleged acts of sexual misconduct by the appellant against that person and lead evidence from that person on the topic of the alleged photographs.
Further grounds of appeal related to directions given to the jury. It is said that the judge’s directions were inadequate in relation to the significance of the absence of recent complaint and delay in reporting the matter to the police. It is further said that there were inadequate directions with respect to the proper and improper use of uncharged incidents and the taking and showing of photographs.
The appellant says that the judge should have warned the jury of the danger of acting upon the evidence of the complainant in view of his age at the time of the alleged offence, the fact that the complainant’s evidence was unsupported, the appellant’s denial of the allegations on oath and…

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 T [1999] SASC 242
Case: [1999] SASC 242
Decision Date: 11 June 1999

CaseChat Overview and Summary

The appellant appealed against his conviction on one count of indecent assault and sought a discharge from other charges on the basis of alleged misdirections and errors in the trial. The Court of Criminal Appeal allowed the appeal against conviction and set aside the conviction on the first count, ordering a verdict of acquittal on that count. The Court held that the trial judge should have allowed the defence to cross-examine the complainant about photographs that were allegedly taken of two other boys, and that the absence of a recent complaint and the delay in reporting the matter to police should have been directed to the jury in a clearer and more specific manner. The directions given to the jury about the proper use of uncharged incidents were also inadequate. The Court found that the trial miscarried for these reasons. The Court did not order a retrial on the first count because it would be fundamentally different to the trial already held.

Orders