R v T, S

Case [2017] SASCFC 67

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v T, S

[2017] SASCFC 67

Judgment of The Court of Criminal Appeal

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

9 June 2017

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED

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 - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY - GENERALLY

EVIDENCE - ADMISSIBILITY - CREDIBILITY EVIDENCE - WITNESSES - PRIOR INCONSISTENT STATEMENTS

Appeal against conviction.

The appellant was convicted by a jury in the District Court of two counts of unlawful sexual intercourse with a person under the age of 12 years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA).

The complainant is the appellant’s daughter. She was 25 years old at the time of giving her evidence but was only eight or nine years old at the time of the offending.

The prosecution called the complainant, her mother, and a school friend, TC, to give evidence. The appellant and a character witness gave evidence for the defence.

The appellant appeals against his convictions on the grounds that the Judge misdirected the jury as to the standard of proof, wrongly admitted evidence of initial complaint pursuant to s 34M of the Evidence Act 1929 (SA) (Evidence Act) and inadequately directed the jury as to the use to be made of prior inconsistent statements, the forensic disadvantage he suffered due to the delay in the making of the complaint as required by s 34CB of the Evidence Act, and the use of the evidence of initial complaint. The appellant complains that a miscarriage of justice has occurred in that evidence of prior inconsistent statements made by the witness TC, which was not adduced at trial because counsel did not know of its existence, could significantly have affected the jury’s deliberations had it in fact been adduced. Lastly, the appellant argues the verdicts are unreasonable and cannot be supported by the evidence.

Held, allowing the appeal:

1.       (per Kelly and Nicholson JJ, per Hinton J): the Judge’s directions to the jury did not undermine the burden of proof and did not invite sequential reasoning in the manner complained of. The jury would not have been left with the impression that a verdict of not guilty would only follow if the appellant persuaded the jury as to his version of events or they were uncertain as to where the truth lay.

2. (per Kelly and Nicholson JJ, Hinton J dissenting): the Judge’s directions to the jury as to the appellant’s forensic disadvantage were in accordance with the requirements of s 34CB…

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R v T, S [2017] SASCFC 67
Case
[2017] SASCFC 67
Decision Date

CaseChat Overview and Summary

The appellant, R, was convicted by a jury of two counts of unlawful sexual intercourse with a person under the age of 12 years. He appealed his convictions to the Full Court of the Supreme Court of South Australia, raising several grounds of appeal including alleged misdirections regarding the standard of proof, the use of prior inconsistent statements, the forensic disadvantage arising from the delay in the complainant's initial complaint, and the use of evidence of initial complaint. The appellant also contended that a miscarriage of justice had occurred due to the non-disclosure of fresh evidence concerning prior inconsistent statements made by a witness to whom the complainant first complained, and that the verdicts were unreasonable and unsupported by the evidence. Permission to appeal was granted on all grounds except one concerning the admission of evidence of initial complaint, the determination of which was referred to the substantive appeal.

The central legal issues before the Court were whether the trial judge's directions to the jury on the standard of proof were adequate, particularly in the context of an "oath against oath" scenario, and whether the non-direction or misdirection on certain evidentiary matters, including the use of prior inconsistent statements and the impact of delayed complaint, constituted a miscarriage of justice. The Court was also required to consider whether the verdicts were unreasonable and whether the non-disclosure of fresh evidence warranted a new trial.

The Court allowed the appeal on the basis of ground 7, which related to the unreasonableness of the verdicts. While the Court considered the trial judge's directions on the standard of proof and found that they did not necessarily invite sequential reasoning or place an improper burden on the appellant, it ultimately determined that the appeal should succeed on other grounds. The Court refused permission to appeal on ground 5, concerning the admission of evidence of initial complaint.

The Court set aside the convictions and ordered a retrial. The decision to order a retrial was based on the finding that the appeal should be allowed on ground 7. The Court noted that the necessity for specific directions on retrial would depend on how the evidence unfolded.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant was granted permission to appeal on all grounds save ground five which attacked the admission of the evidence of initial complaint under s 34M of the Evidence Act 1929 (SA) (Evidence Act). The question of permission in respect of ground five was referred to this Court to be heard with the substantive appeal. I would refuse permission to appeal on ground five but otherwise allow the appeal. My reasons follow. The triala. The prosecution case The prosecution called three witnesses - the complainant, her friend TC, and CG, the complainant’s mother. The complainant is the daughter of the appellant. She was 25 years old at the time of giving her evidence but only eight or nine years old at the time of the offending. The complainant told the jury that her parents separated when she was seven years old. She then moved with her mother to live in Goolwa. At about that same time the complainant transferred schools, taking up a place at Goolwa Primary School. Thereafter she would stay with her father from time to time on weekends or during school holidays. The offending subject of the charges occurred whilst the complainant was attending Goolwa Primary School and prior to her move at age 10 to Mount Compass Area School. She could not tell the jury what day of the week it was on which the offending occurred, but remembered that it was during the summer months. She told the jury that she was watching a documentary with her father about space when he begged her to remove her clothes and lie on his bed with him for a massage. She did not wish to disappoint him, so she did as he asked. She said he appeared drunk and she told the jury that her father often drank red wine. Once on the bed, the appellant proceeded to give the complainant, who lay on her stomach, a back massage. Subsequently, she laid on her back and her father rubbed her feet. It was after this that the appellant performed cunnilingus upon her for, she guessed, about 15 minutes. She said she was scared and closed her eyes. She said nothing to her father. He was wearing a t-shirt and nothing more. He was positioned toward the end of the bed. She could not say whether he was standing on the floor. The complainant told the jury that sometime later she came to be on her left side still lying on the bed. Her father positioned himself behind her. From this position she said he tried to penetrate her vagina with his penis four or five times. She said he managed to penetrate her labia minora but no more. She could not recall him saying anything at this time. She was afraid and knew that what he was doing was wrong. This lasted for about the same amount of time as had cunnilingus. The complainant said she did not know how long the acts of penetration lasted. She could not recall how things came to an end, but she did recall getting up and going to the bathroom, leaving her father sitting on the bed. She felt disgusted and scared. She began to shower. Her father joined her in the shower. Afterwards she went to the toilet a number of times and then she went to sleep in his bed. He told her not to tell anyone.

Decision

Reasons for decision

KELLY AND NICHOLSON JJ HINTON J
Given that the appeal is to be allowed on the basis of appeal ground 7, it is not necessary to form a view whether the Judge erred in failing to give such a direction in this case. In any event, upon any retrial, whether a direction might be called for will, of course, depend on the way in which the evidence unfolds at the retrial. Conclusion For these reasons, we too would allow the appeal on the basis of appeal ground 7, set aside the conviction and order a retrial. Introduction The appellant was convicted by a jury of two counts of unlawful sexual intercourse with a person under the age of 12 years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). He appeals against his convictions contending that directions given as to the standard of proof, the use to be made of prior inconsistent statements, the forensic disadvantage he suffered due to the delay in the making of the complaint, and as to the use of evidence of initial complaint were inadequate. Further, he contends that a miscarriage of justice has occurred in that evidence of prior inconsistent statements made by the witness to whom the complainant first complained, which was not adduced at trial because counsel did not know of its existence, could significantly have affected the jury’s deliberations had it in fact been adduced. Lastly, he argues the verdicts are unreasonable and cannot be supported by the evidence. The appellant was granted permission to appeal on all grounds save ground five which attacked the admission of the evidence of initial complaint under s 34M of the Evidence Act 1929 (SA) (Evidence Act). The question of permission in respect of ground five was referred to this Court to be heard with the substantive appeal. I would refuse permission to appeal on ground five but otherwise allow the appeal. My reasons follow. The triala. The prosecution case The prosecution called three witnesses - the complainant, her friend TC, and CG, the complainant’s mother. The complainant is the daughter of the appellant. She was 25 years old at the time of giving her evidence but only eight or nine years old at the time of the offending. The complainant told the jury that her parents separated when she was seven years old. She then moved with her mother to live in Goolwa. At about that same time the complainant transferred schools, taking up a place at Goolwa Primary School. Thereafter she would stay with her father from time to time on weekends or during school holidays. The offending subject of the charges occurred whilst the complainant was attending Goolwa Primary School and prior to her move at age 10 to Mount Compass Area School. She could not tell the jury what day of the week it was on which the offending occurred, but remembered that it was during the summer months. She told the jury that she was watching a documentary with her father about space when he begged her to remove her clothes and lie on his bed with him for a massage. She did not wish to disappoint him, so she did as he asked. She said he appeared drunk and she told the jury that her father often drank red wine.

Ratio Decidendi

Legal Principle Established

Established by: KELLY AND NICHOLSON JJ, HINTON J

Second, the Calides direction (reproduced at [73] above) had the consequence of inviting the jury to consider the relative persuasiveness of the appellant’s evidence and the prosecution evidence thereby diverting the jury from the appropriate inquiry, being whether or not the jury was satisfied that all elements of each charge had been proven beyond reasonable doubt. Further, the direction carried with it the suggestion that the appellant bears the burden of persuading the jury of the truth of his version of events.c. Consideration The Judge was correct in her directions that the jury was not required to be satisfied of the appellant’s version of events and obviously did not err in repeating that the burden of proof rests upon the prosecution. The Judge’s statement that “[p]art of the relevance of the version of events put forward by an accused is to consider whether it assists in casting a reasonable doubt on the prosecution case” is not in itself wrong. Here context must be borne in mind. As indicated this was a case of oath against oath. However, the appellant not only denied the conduct but floated an alternate hypothesis. Both his denials and the alternate hypothesis floated were relevant to the assessment of the credibility and reliability of the complainant. Any doubt the appellant’s evidence cast upon the complainant’s credibility and reliability was a doubt cast upon the prosecution case. The jury would not have understood otherwise. The invitation is in effect then to consider whether the appellant’s evidence causes the jury to doubt the complainant’s truthfulness and reliability. Bearing in mind that this invitation arises in the context of directions more generally on the assessment of witnesses, I do not think it would have been understood as encouraging the sequential process that the appellant asserts. This is particularly so bearing in mind what immediately follows:The factors that I have mentioned so far are only guides for your assistance. What is important above all else in deciding the case is that you bring your commonsense and your experience of the world when deciding how far each of the witnesses is truthful and reliable. In my view the direction did not invite sequential reasoning and the jury would not have understood it as doing so. In my view the jury would have understood that they were to consider the appellant’s version of events, meaning his denial and the alternate hypothesis, in the course of assessing the evidence for the prosecution and whether it was truthful and reliable such that the jury could be satisfied that the charges were proved beyond reasonable doubt. I turn to the Calides direction. In The Queen v Calides Wells J was concerned to reinforce that, in cases where the prosecution case is dependent upon the credibility and reliability of the complainant whose evidence is diametrically opposed to that of the accused such that both cannot be telling the truth, juries must understand that the correct application of the burden and standard of proof will yield one of three possible outcomes:[11] … the jury may be completely satisfied with the evidence led from the Crown, in which case, assuming all other matters to be properly established, the verdict will be guilty; the jury may be perfectly satisfied with the version presented by the accused, in which case there will inevitably be a verdict of not guilty; and there is the third possibility, which must never be overlooked, and that is that the jury, after a full and careful consideration, may arrive at the result that they are unable to say where the truth lies, or that they are unable to say who is telling the truth. If that is the situation, then, of course, the verdict must also be not guilty.[11] (1983) 34 SASR 355 at 358-359.