R v Tee No. Sccrm-99-120 Judgment No. S352 - [1999] SASC 352

R V TEE

[1999] SASC 352

Court Of Criminal Appeal: Millhouse, Lander & Duggan JJ

MILLHOUSE J. I suggest for the reasons about to be given by our brother Lander, that the appeal be dismissed.
DUGGAN J. I would dismiss this appeal for the reasons given by Lander J.
LANDER J. The appellant was charged on information with two offences, first that he had unlawful sexual intercourse with DBH, a person of the age of eleven years by performing an act of fellatio upon him and secondly with indecent assault upon the same person.
Both offences were alleged to have been committed between 1 July 1988 and 30 July 1989.
At his trial, in the District Court, a jury convicted him of the first count but acquitted him of the second.
The appellant now appeals against the conviction of unlawful sexual intercourse on two grounds. First that the verdict is unsafe and unsatisfactory and secondly that the verdict on the first count is inconsistent with the verdict on the second count and cannot stand.
The trial was a very short one. The evidence occupied less than one day and counsel addressed the jury on the next day and the Judge summed up on that second day.
In his summing up the Judge remarked upon the professional and competent manner in which counsel for the appellant and respondent had conducted themselves in the trial.
The jury not only had the advantage of competent counsel in this case they also had the further advantage of a very helpful summing up by the learned Trial Judge.
The complainant was born on 3 June 1977. He turned twelve on 3 June 1989. That date is, of course, relevant because the charge upon which the appellant was convicted was that he had had unlawful sexual intercourse with a person under the age of twelve.
As I have already remarked it was alleged in the information that the act of unlawful sexual intercourse took place between 1 July 1988 and 30 April 1989.
In 1988 the complainant was in Grade 5 at primary school in Port Pirie. The complainant was in the under 11s cricket team.
The complainant said the appellant asked him to play cricket for the team he coached. The appellant used to take him to and from cricket matches.
The first occasion that the complainant went to the appellant’s house was for the purpose of doing some weeding to earn money to spend at the smelters picnic.
He said that he met the appellant’s wife and was then provided by the appellant with tools for weeding and he carried out that operation for about an hour or an hour and a half.
After he completed the weeding he went to the shed which was at the back of the appellant’s house and knocked on the door and spoke to the appellant.
The appellant asked him to come into the shed and asked the complainant to sit on his lap. He said…

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 352
Decision Date: 21 September 1999

CaseChat Overview and Summary

In the matter of R v Tee, the appellant was convicted of unlawful sexual intercourse with a child under the age of twelve, but acquitted of indecent assault on the same child. The appellant appealed against the conviction, arguing that the verdict was unsafe and unsatisfactory, and that it was inconsistent with the acquittal on the second count. The trial judge had directed the jury to consider each count separately. The Court of Criminal Appeal found that the jury was entitled to convict the appellant of the first count based on the evidence before them, despite some inconsistencies in the complainant's evidence. The Court also found that the acquittal on the second count did not necessarily mean that the jury believed the complainant was untruthful in relation to that count. The Court of Criminal Appeal dismissed the appeal and upheld the conviction.

The central legal issues in this case were whether the jury's verdict was unsafe and unsatisfactory, and whether the verdict on the first count was inconsistent with the verdict on the second count. The Court of Criminal Appeal found that the jury was entitled to convict the appellant of the first count based on the evidence before them, despite some inconsistencies in the complainant's evidence. The Court also found that the acquittal on the second count did not necessarily mean that the jury believed the complainant was untruthful in relation to that count. The Court of Criminal Appeal dismissed the appeal and upheld the conviction. The Court's reasoning was based on the fact that the jury had an advantage in seeing and hearing both the complainant and the appellant, and were therefore in a position to allow for those aspects of the complainant's evidence which were unreliable. The Court also found that the jury had been reminded by the learned Trial Judge to consider each matter separately, and had followed this direction. The Court of Criminal Appeal found that the jury accepted the direction given by the learned Trial Judge and reasoned appropriately. The Court's decision was based on a careful consideration of the evidence before the jury, and the directions given by the Trial Judge.

Orders