R v Usher

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.