R v Usher

Case [2014] SASCFC 32

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v USHER

[2014] SASCFC 32

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)

10 April 2014

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

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT

CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR CONSISTENT STATEMENTS

The appellant was found guilty following a trial by jury of three counts of unlawful sexual intercourse. The appellant appeals against those convictions. At trial, complaint evidence and a Facebook exchange between the appellant and the complainant were, following a challenge on the voir dire, admitted.

The issues on appeal relate to that evidence and can be stated as follows: (i) Whether the evidence of the initial complaint between the complainant and the witness CS (the complainant’s girlfriend) was wrongly admitted because it was not sufficiently referable to the charged offences; (ii) Whether the evidence of the Facebook correspondence between the complainant and the appellant was wrongly admitted because it was irrelevant and/or more prejudicial than probative and/or a prior consistent statement that bolstered the credibility of the complainant.

Held per Kourakis CJ (Peek J agreeing) (allowing the appeal):

The complaint was not capable of being understood as reference to the charged acts because it complained about offences alleged to have occurred some years before, and at a different location from the charged offences. The account was invented by the complainant to hide his embarrassment at his inability to stop the appellant’s offending by which time he was in his mid-teens. It was therefore inadmissible as complaint evidence pursuant to s 34M of the Evidence Act 1929 (SA), and the Judge erred in admitting it (at [4]).

The complainant’s response to the appellant’s Facebook message was erroneously admitted.  Why and when the complainant went to the police was not an issue in the trial and the Facebook exchange was therefore not admissible for that purpose.  Moreover, the complainant’s response was an out-of-court communication which served no purpose other than to impermissibly bolster his credit (at [5]).

Appeal allowed and remitted to the District Court for retrial.

Held per Gray J (dissenting):

At the time of the Judge’s indicative ruling following the voir dire, the complaint evidence was correctly assessed as admissible evidence (at [99]). If the jury accepted the complainant’s evidence that this was the initial complaint that he made about the appellant’s conduct and accepted his explanation about the misstatements, then it was open to the jury to act upon that evidence in the terms permitted by section 34M of the Evidence Act 1929 (SA) (at [99]). Such differences as did exist between the purported complaint and the allegations the subject of the charge were not such as to preclude admission (at [106]).

The Judge’s directions to the jury regarding the evidence of purported…

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R v Usher [2014] SASCFC 32
Case
[2014] SASCFC 32
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CaseChat Overview and Summary

The appeal concerned the conviction of Peter Graham Usher by a jury in the District Court for three counts of unlawful sexual intercourse. The complainant, a male born in 1984, alleged that the offending commenced when he was living with the appellant between 1999 and 2001, prior to his 15th birthday and continuing until he was approximately 17 years old. The alleged acts involved the appellant touching the complainant's penis while he was asleep, followed by fellatio. The matter was reported to the police following a Facebook exchange initiated by the appellant.

The legal issues before the court were whether the trial judge erred in admitting evidence of a purported initial complaint made by the complainant to his former partner, CS, and in directing the jury regarding its use. Specifically, it was contended that this complaint was not sufficiently referable to the charged offences in terms of the nature of the act, the timing, and the location. A further ground of appeal argued that the judge erred in admitting evidence of Facebook correspondence between the complainant and the appellant, submitting it was irrelevant or more prejudicial than probative, and also in directing the jury on its use.

The court allowed the appeal, finding that the trial judge had erred in admitting the evidence of the complaint to CS. The reasoning was that the complaint, as made to CS, contained significant discrepancies regarding the nature of the sexual act, the age of the complainant at the time, and the location of the offending, which rendered it insufficiently referable to the specific charges. The court also found that the judge's directions to the jury on how to use this complaint evidence were inadequate.

Consequently, the court ordered that the appeal be allowed and the matter be remitted for retrial.

Orders

Orders of the court

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Background

Background to the litigation

I elaborate on my reasons for allowing the appeal below.Background The complainant is a male born on 5 October 1984.[5] The appellant and the complainant came to know each other by virtue of the complainant’s friendship with the appellant’s younger sister.[6] At the time of the alleged offending the appellant was aged between 19 and 20. [5] Birth Certificate, Exhibit P1.[6] The complainant and the appellant’s sister had attended school together. The prosecution case was that in about 1999 or 2000 the complainant had gone to live with the appellant at Morphett Vale and shortly thereafter, prior to the complainant’s 15th birthday,[7] the appellant’s offending commenced. The circumstances of the offending on each occasion were very similar, occurring when the complainant was asleep, or pretending to be asleep, and involving the touching of the complainant’s penis under the blankets, followed by fellatio of the complainant’s penis. The complainant gave evidence that the offending continued over a period of about eighteen months, between September 1999 and February 2001, at various residences occupied by the appellant and the complainant. The offending only ceased when, at about 17 years of age, the complainant asked his girlfriend, CS, to move in with him. [7] The complainant’s 15th birthday was on 5 October 1999. The matter was reported to the police by the complainant following a Facebook exchange between him and the appellant which had been initiated by the appellant. The Facebook exchange appears to have acted as a prompt which caused the complainant to make a report to the police. On 9 July 2011 the appellant was arrested and interviewed. The appellant admitted that he had lived with the complainant at three different addresses over a number of years, but denied the allegations. The matter subsequently proceeded to trial. The complainant gave evidence that CS was the first person that he told about the abuse and that he made his disclosure in or about 2004. He was 20 years of age and it was at a time when that their relationship was breaking down. The complainant’s disclosure was made in general terms. He did not identify the abuser. The complainant told his girlfriend that the offending occurred when he was living at his mother’s house, at a time when he would have been much younger than the alleged offending. [8] At trial, the complainant asserted that he had lied to CS about the details of the offending because he was embarrassed.[9] [8] CS’s evidence was that the complainant had told her that the offending occurred when he was aged 12, T143.[9] T128-129 and T58. The admissibility of the complaint evidence was challenged on the voir dire. The Judge held that the complaint was capable of being referable to the charges and admitted the evidence pursuant to s 34M of the Evidence Act. The appellant contends that the Judge erred in that the evidence was not a complaint in relation to the subject matter of the charge, namely, an act at the premises of the accused during the specified time period, and was therefore inadmissible. The appellant also argues that the Judge misdirected the jury about the complaint evidence.

Evidence

Evidence Before The Court

Before addressing the grounds of appeal, I set out below the evidence relating to each count, the complaint to CS and the Facebook exchange. EvidenceThe offending The evidence was that in about 1999 or 2000 the complainant went to live with the appellant at Richards Drive, Morphett Vale (Richards Drive). The complainant had come to know the appellant through the appellant’s younger sister who was the same age as the complainant and with whom he had attended school. The living situation arose because the appellant agreed to guarantee the complainant’s bail for offences being prosecuted in the Youth Court.[10] The Richards Drive address became the place of residence on the bail agreement and the appellant and complainant lived there together. [10] The complainant was placed on bail on 14 July 2000; a condition of that bail was to reside at the Richards Drive address. At trial an apparent conflict arose concerning the timing of the alleged offending. The complainant’s evidence was that the offending commenced shortly before his 15th birthday which fell on 5 October 1999. That is not consistent with the offending being shortly after the complainant was bailed to reside at the Richards Drive address on 14 July 2000. Counsel for the appellant at trial put an argument to the jury that the discrepancy between the two dates should cause them to have considerable doubt about the reliability of the evidence of the complainant. Count 1 alleged offending occurred within weeks of the complainant moving into the Richards Drive address. The evidence of the complainant with respect to that count was that it was shortly before his 15th birthday and happened when he was asleep on the couch. The complainant testified that he was awoken on the couch by the appellant touching his penis, but he pretended to be asleep. The complainant explained: [11]A… just closed my eyes and pretended like nothing was happening and then just pretended to be asleep…was very shocked and I couldn’t really move … I was just scared, so scared that I couldn’t even move, I felt my body all tense and stuff but I didn’t have the courage to stand up and say anything. [11] T34. The complainant then felt the appellant pull his (the complainant’s) pants and underpants down and masturbate him. The appellant then performed fellatio on him to the point of ejaculation. The complainant testified that about two weeks later, after he had turned fifteen, the offending alleged in count 2 occurred in the bedroom of the Richards Drive house. The complainant’s evidence was that he was in bed asleep when he was awoken by the appellant touching his penis. The appellant then performed fellatio on the complainant to the point of ejaculation. The complainant said that he could smell alcohol on the appellant. The evidence of the complainant was that uncharged incidents continued to take place in exactly the same circumstances approximately every two weeks at the Richards Drive address.[12] [12] T46.

Decision

Reasons for decision

On this ground too, the appeal must be allowed.Conclusion I would allow the appeal and remit the matter for retrial. This is an appeal against conviction. On 18 April 2013, the defendant and appellant, Peter Graham Usher, following a trial in the District Court, was found guilty by jury verdict of three counts of unlawful sexual intercourse. He was acquitted on a fourth count. The three counts on the Information on which verdicts of guilty were returned each charged the defendant with the offence of unlawful sexual intercourse contrary to section 49(3) of the Criminal Law Consolidation Act 1935 (SA). On each count, the male complainant was said to be under 17 years of age and each count alleged that the defendant performed an act of fellatio on the complainant. The first count was said to have occurred between 31 December 1998 and 6 October 1999 at Morphett Vale, the second count between 1 September 1999 and 6 October 2000 at Morphett Vale and the third count between 9 February and 1 July 2001 at Hackham. The prosecution led evidence from the complainant, LW, whose brother was engaged to the complainant’s sister, CS, the complainant’s former partner, and Detective Sergeant Holmes, who conducted a recorded interview of the defendant. A number of documents were tendered in evidence by the prosecution, including the complainant’s birth certificate, a mud-map of the premises at Morphett Vale, a floorplan of the premises at Hackham, an extract from the social media website Facebook, a bundle of photographs of a house, two video records of interview and a transcript of a record of interview. The defendant led evidence from RU, the sister of the defendant. The defendant did not give evidence as part of the defence case. Two documents were tendered by the defence, being a bail agreement and a Facebook extract. On the appeal, the defendant advanced two primary submissions. First, it was contended that the Judge erred in admitting evidence of a purported initial complaint made by the complainant to the witness CS on the basis that it was not sufficiently referrable to the charged offences. It was further contended that the Judge erred in directing the jury as to the use that the jury could make of this evidence of purported complaint. The defendant’s second ground of complaint was that the Judge erred in admitting evidence of Facebook correspondence between the complainant and the defendant on the basis that it was irrelevant or, alternatively, was more prejudicial than probative. The defendant also submitted that the Judge erred in directing the jury as to the use that the jury could make of this evidence. The defendant objected to the admission of both items of evidence during a voir dire hearing at the commencement of the trial. It was said that complaint evidence may only be admissible pursuant to section 34M(3) of the Evidence Act 1929 (SA). It was contended that the proposed evidence raised a complaint significantly different to the subject of the Information. The differences were as to the nature of the sexual act, the time when the conduct was said to have occurred and the location where it was said that the conduct had occurred. It was the prosecution case that the complainant would give evidence that the complaint to CS was the first complaint to be made about the defendant’s conduct but that he provided incorrect information to CS, his then partner, because of his embarrassment. The prosecution submitted that the evidence of the initial complaint did relate to the charged conduct and that it was a question of whether the jury accepted the complainant’s explanation in relation to the misstatements.

Ratio Decidendi

Legal Principle Established

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