R v Thomas

Case [2015] SASCFC 55

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v THOMAS

[2015] SASCFC 55

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Stanley and The Honourable Justice Lovell)

28 April 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - DIRECTIONS TO JURY

Appeal against convictions. Appellant convicted of one count of indecent assault and six counts of unlawful sexual intercourse after trial by jury.

Appellant complained that the trial Judge failed to give a lies direction - failed to adequately direct on the forensic disadvantage suffered by the appellant - failed to adequately direct as to the use that could be made of the evidence of uncharged acts - failed to adequately direct on the use that could be made of the complaint evidence - failed to adequately direct as to significance of the appellant giving evidence on oath.

Held: per Lovell J (Sulan and Stanley JJ agreeing). Appeal dismissed.

Evidence Act 1929 (SA) s 34CB, referred to.
Dhanhoa v The Queen (2003) 217 CLR 1; R v Copeland (1997) 194 LSJS 1; R v Ong (2001) 80 SASR 537; R v Cassebohm (2011) 109 SASR 465; R v Daniel [2010] SASCFC 62, applied.
R v Sheppard [2010] QCA 342; AE v The Queen [2011] VSCA 168, not followed.
R v Calides (1983) 34 SASR 355; Liberato v The Queen (1985) 159 CLR 507; R v Leak [1969] SASR 172; R v Brady [2014] SASCFC 7, discussed.
Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen (2000) 200 CLR 234; R v Hirst (2013) 116 SASR 300; R v Fouyaxis (2007) 99 SASR 233; R v Pelly [2015] SASCFC 25; R v Baring; R v Leonard (2005) 92 SASR 117; R v Bonython-Wright (2013) 117 SASR 410; R v Maiolo (No 2) [2013] SASCFC 36, considered.

R v THOMAS
[2015] SASCFC 55

Court of Criminal Appeal:       Sulan, Stanley and Lovell JJ

  1. SULAN J:         I would dismiss the appeal. I agree with the reasons of Lovell J.

  2. STANLEY J:    I would dismiss the appeal. I agree with the reasons of Lovell J.

    LOVELL J.

    Overview

  3. The appellant was a trusted friend of the complainant’s family. The complainant alleged that over a period of years the appellant sexually abused him. The offending allegedly commenced around January 1986, when the complainant was about six years old, and continued through to April 1992 when the complainant was 13 years of age. The sexual abuse included…

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AGLC
R v Thomas [2015] SASCFC 55
Case
[2015] SASCFC 55
Decision Date

CaseChat Overview and Summary

The appeal concerned convictions for sexual offences against a child. The appellant, a trusted family friend, was accused by the complainant of sexual abuse over a period of approximately six years, commencing when the complainant was six years old. The alleged offences included indecent assault, fellatio, and digital anal penetration. The appellant denied all allegations under oath at trial, but a jury convicted him on all counts. The appeal was heard by Sulan, Stanley and Lovell JJ.

The central legal issues before the court revolved around the conduct of the cross-examination of the appellant and the potential for misdirection or non-direction to the jury. Specifically, the court considered whether questions posed to the appellant during cross-examination improperly invited him to state whether other witnesses were lying, rather than simply to contradict their evidence. The court also considered the general principles governing directions to a jury regarding evidence of propensity, tendency, and coincidence, and the proper handling of complaint evidence.

The court applied the principle established in *R v Leak*, which prohibits asking a witness, particularly the accused, whether another witness is lying or has invented something. While a witness can be asked if another witness's statement is true or if there is a reason for hostility, they should not be compelled to speculate on the reasons for any inaccuracy, such as invention, malice, or mistake. Such questions elicit opinion evidence, and it is the jury's role to determine credibility and the nature of any inaccuracies. The court found that counsel should not ask questions that contravene this principle.

The court concluded that all grounds of appeal should be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant was a trusted friend of the complainant’s family. The complainant alleged that over a period of years the appellant sexually abused him. The offending allegedly commenced around January 1986, when the complainant was about six years old, and continued through to April 1992 when the complainant was 13 years of age. The sexual abuse included acts of indecent assault, fellatio and one act of digital anal penetration. At trial the appellant denied, on oath, all of the offending. The jury, after a trial lasting three days, convicted the appellant of all charges. He has appealed the convictions.Background The appellant met the complainant’s father, T, in 1972 whilst working as a meat inspector at an abattoir in Mount Gambier. This friendship developed and the appellant was considered a close family friend of T and his wife C. When their first son was born, the appellant was named as his godfather. T’s family resided in Mount Gambier and the appellant in Adelaide, however the appellant spent considerable time with the family over the years. In particular, the appellant would often travel to Mount Gambier during the Easter holidays and at Christmas. Moreover, T’s family would stay with the appellant in his unit at Semaphore Park when they visited Adelaide. The complainant, H, is the youngest son in the family. H and his two older siblings considered the appellant an uncle and a trusted friend. The appellant was charged with and eventually convicted of one count of indecent assault, two counts of unlawful sexual intercourse with a person under 12 years old and four counts of unlawful sexual intercourse for offending that occurred between 1986 and 1993 against H. Count 1 (indecent assault) occurred when H was six years old in the appellant’s home. H alleged that the appellant touched H’s genitals while H was sitting on a bathtub bathing his injured foot. Counts 2 and 3 (unlawful sexual intercourse) related to incidents of fellatio that H alleged were committed by the appellant in Mount Gambier at Christmas in 1989 when H was 10 years old. H alleged that the appellant told him to pull back the foreskin on his uncircumcised penis. He then fellated him on two occasions. H was admitted to hospital just before Christmas in 1989. Counts 4 and 5 were two separate incidents occurring within a short time of each other. H, who was approximately 12 years old at the time, alleged that the appellant had taken him to a basketball tryout, after which the appellant committed fellatio on him in his car. Count 5 consisted of the appellant allegedly committing fellatio against H on the way home from visiting a horse farm. Counts 6 and 7 were allegedly committed at H’s home in Mount Gambier when he was approximately 13 years old. H alleged the appellant committed an act of fellatio and then an act of digital penetration of his anus. A number of uncharged acts were also alleged. The appellant was alleged to have fondled the complainant’s penis whilst giving him a piggyback shortly prior to the Count 1 offending. He was also alleged to have fellated the complainant on two occasions when at Warrnambool in Victoria. They were the only specific uncharged acts alleged. There was other vague evidence that suggested the abuse occurred more often than mentioned above.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

LOVELL J (dissent)
As was stated in R v Leak:[39]In our view a witness ought not to be asked whether another witness is telling lies or has invented something. Any witness, of course, can be asked if what another witness has said is true. He can be asked if he knows of any reason why the other witness should be hostile to him or should tell a false story about him. But if he says that what the other witness has said is not true, he should not be asked to enter into that witnesses mind and say whether he thinks the inaccuracy is due to invention, malice, mistake or any other cause. To do so is to ask him for opinion evidence and in our view the normal objections to that type of evidence apply. It is for the jury to decide which witness is telling the truth and how far what they think to be an inaccuracy on the part of any witness is deliberate or otherwise and what affect such inaccuracy has on the rest of the witness’s testimony. No attempt should be made by the cross examiner to drive any witness, least of all the accused, into saying that in any other witness, least of all a detective, is a lie.Counsel should not ask questions that contravenes this principle.[39] R v Leak [1969] SASR 172, 173.Conclusion In my view all grounds of appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by:

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