R v W, CT - [2019] SASCFC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v W, CT
[2019] SASCFC 18
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Lovell)
26 February 2019
CRIMINAL LAW - EVIDENCE - HEARSAY - PARTICULAR MATTERS - DOCUMENTARY EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - EVIDENCE - COMPLAINTS - GENERALLY
The applicant was convicted of five counts of indecent assault and three counts of unlawful sexual intercourse against his daughter. The complainant sent a letter to the applicant which contained allegations of sexual abuse. At trial, the contents of the letter were excluded and the parties proceeded by way of an agreed fact. The jury twice queried why the letter was not before them. The applicant complained about the judge's directions to the jury in relation to the use to be made of the alleged admission and also the direction in response to the jury question.
Held, allowing the appeal:
1. The trial Judge erred in her direction as to how the alleged admission could be used by the jury.
2. The trial Judge erred in her direction in response to the jury questions.
3. The matter is remitted to the District Court for a new trial.
Criminal Law Consolidation Act 1935 (SA) ss 49, 56, referred to.
R v Markuleski (2001) 52 NSWLR 82; R v H,ML [2006] SASC 240; R v Helps (2016) 126 SASR 486; Slatterie v Pooley (1840) 151 ER 579; R v Bucca and Castle [2018] SASCFC 42, considered.

R v W, CT
[2019] SASCFC 18
Court of Criminal Appeal: Kourakis CJ, Stanley and Lovell JJ

KOURAKIS CJ: On 13 September 2018 I joined in the orders allowing the appeal and directing a new trial for the reasons given by Lovell J.
STANLEY J: I also joined in the orders made for the reasons given by Lovell J.
LOVELL J: The applicant is the father of the complainant, CW. He was charged with indecently assaulting CW (five counts)[1] and having unlawful sexual intercourse with her (three counts)[2]. At a trial held in April 2017 the jury was unable to reach a verdict. The applicant was retried and on 4 April 2018 the jury returned majority verdicts of guilty on all counts.
[1] Contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 49 of the Criminal Law Consolidation Act 1935 (SA).
The prosecution alleged that between about 1978 and 1988, when the applicant, CW, and her family lived at Renmark, the applicant sexually abused CW. The Crown case depended almost entirely on the evidence of CW. Initial complaint evidence was led through CW and her counsellor, RS. The prosecution also led evidence of alleged admissions made by the applicant to CW. The context in which these admissions were said to have been…

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.

Continue reading R v W, CT

Details

AGLC: R v W, CT [2019] SASCFC 18
Case: [2019] SASCFC 18
Decision Date: 26 February 2019

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Stanley and Lovell JJ, considered an appeal by the applicant, R, against his conviction for a sexual offence. The dispute centred on the admissibility of certain documentary evidence and the directions given to the jury regarding the evidence of a complaint made by the complainant.

The primary legal issues before the Court were whether the trial judge erred in admitting certain documents as hearsay evidence, and whether the judge’s directions to the jury concerning the complainant’s complaint constituted a misdirection or non-direction, thereby occasioning a miscarriage of justice. The Court also had to determine if the admission of the documents, if found to be hearsay, was nonetheless admissible under an exception to the hearsay rule, or if any misdirection regarding the complaint evidence was so significant as to warrant a new trial.

The Court reasoned that the documents in question, which contained statements made by the complainant, were hearsay and not admissible under any recognised exception to the rule. It further held that the directions given to the jury regarding the complainant’s complaint were inadequate, failing to properly explain the limited purpose for which such evidence could be considered. The Court concluded that the cumulative effect of admitting the inadmissible hearsay evidence and the inadequate directions on the complaint evidence amounted to a miscarriage of justice.

Consequently, the Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders