R v W, GC

Case [2006] SASC 376

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v W, GC

[2006] SASC 376

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Layton and The Honourable Justice David)

14 December 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS

Appeal against conviction - appellant convicted of two counts of unlawful sexual intercourse with a person between 12 and 17 years - offences were particularised as occurring in 1986 when the victim was 13 years of age - appellant admitted the acts, but claimed that they occurred in 1989 when the victim was 16 years of age - s 49(4) of the Criminal Law Consolidation Act 1935 provides a defence if an alleged victim was of or above the age of 16 years and the accused believed on reasonable grounds that the alleged victim was of or above the age of 17 years - the trial judge directed the jury that they could convict on the basis that the events occurred in 1986 or 1989 - whether the trial judge erred in directing the jury that they could convict on the basis of the offences occurring either in 1986 or 1989 - whether in the circumstances the date specified in the Information was a material fact that had to be proved beyond reasonable doubt - whether the trial judge erred in directing the jury concerning the victim's delay in complaint - whether the trial judge erred in directing the jury by giving insufficient emphasis to alleged inconsistencies in the victim's evidence - held, appeal dismissed - the trial judge correctly directed the jury - in this case, the date on which the offences occurred was not a material fact.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED

Whether the verdicts were unreasonable or insupportable given alleged inconsistencies in the victim's evidence - whether the verdicts were bad for duplicity and uncertainty because the trial judge left open for the jury to find that the acts occurred in either 1986 or 1989 - held, appeal dismissed - the alleged inconsistencies were before the jury and the verdicts were reasonably open to the jury - the verdicts were not bad for duplicity and uncertainty as there is no danger that the parties were describing different incidents, the only dispute being the date.

EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PRIVILEGE - PROFESSIONAL CONFIDENCE - MEDICAL PROFESSION

Appellant sought to adduce evidence of communications between the victim and her psychiatrist - access to the evidence refused by the trial judge - held, appeal dismissed - trial judge approached the matter correctly.

Criminal Law Consolidation Act 1935 s 49; Evidence Act 1929 s 67D, s 67F, referred to.
R v Pfitzner (1976) 15 SASR 171;

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AGLC
R v W, GC [2006] SASC 376
Case
[2006] SASC 376
Decision Date

CaseChat Overview and Summary

The case of R v W, GC involved the appellant appealing against his conviction for two counts of unlawful sexual intercourse with a person between the ages of 12 and 17 years. The alleged offences were said to have occurred between 31 January 1986 and 28 February 1986 when the victim was 13 years old. The appellant admitted the sexual acts but argued that they occurred in 1989 when the victim was 16 years old. The defence under section 49(4) of the Criminal Law Consolidation Act 1935 was considered, which provides a defence if the accused reasonably believed the victim was 17 years old or older. The trial judge directed the jury that they could convict if the offences occurred in either 1986 or 1989. The court was required to decide whether the trial judge erred in this direction, whether the date of the offence was a material fact that had to be proved beyond reasonable doubt, and if the judge correctly directed the jury regarding the victim's delay in complaint and the emphasis on inconsistencies in the victim's evidence.

The court found that the trial judge correctly directed the jury, as the date of the offence was not a material fact in this case. The court reasoned that the alleged inconsistencies were before the jury, and the verdicts were reasonably open to them. The court dismissed the appeal, holding that the verdicts were not bad for duplicity and uncertainty as there was no danger that the parties were describing different incidents. The court also found that the trial judge correctly approached the matter of denying access to the medical notes of the psychiatrist treating the complainant, as there was no basis to conclude that professional confidence had been breached.

The court dismissed the appeal, and no further orders were made. The reasoning was that the trial judge had correctly directed the jury, the date of the offence was not a material fact, and the trial judge correctly denied access to the complainant's medical notes.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant also argues that the trial judge erred in denying the appellant access to the medical notes of a psychiatrist who had been treating the complainant.The Charges and the Evidence The appellant was charged with two counts of unlawful sexual intercourse with the complainant (whom I will refer to as “V”). One count alleged an act of cunnilingus, and the second an act of vaginal sexual intercourse. Both sexual acts were alleged to have taken place on the same occasion “between the 31st day of January 1986 and the 28th day of February 1986 at Renmark or another place”. V gave evidence that she was born in 1972. She said that when she was young her family would often go on houseboat trips, normally in the summer school holidays. They were mainly accompanied by friends, and a houseboat trip would last about a week. She said she had known the appellant since she was about eight or nine years of age. He was a good friend of her parents. He was, and still is, a medical practitioner. V said the first time that the appellant came with them on a houseboat was in 1986. Other than her family and the appellant, there were a number of other people on the houseboat. V said that one night after everyone had gone to bed she was awoken by the appellant and acts of cunnilingus and vaginal sexual intercourse took place. The sexual acts occurred at the front of the houseboat where she and one of her sisters had been sleeping. She said she did not tell anybody because she was embarrassed, especially as the appellant was a good friend of her parents. She said that at that time she was 13 years of age. V also gave evidence that she thought that it was 1986 when the sexual acts took place, because she had lost her virginity shortly before this in the same Christmas school holidays, and she was taking the contraceptive pill. This had been supplied by the appellant on an occasion when he attended at her house to visit her parents. She also identified the time as the beginning of 1986, because she was going into Year 9 at school and she said it was about the same time as she had first bleached her hair. V finished school in 1988, and although she moved out of home, she still saw her parents and went on houseboat trips, often accompanied by the appellant and other people. After 1986 she continued to see the appellant in a social context. However, she remembered him telephoning her on one occasion and saying how lovely having sex with her had been. She said this was the first occasion that she had contact with the appellant after the houseboat trip in 1986. She also gave evidence that the appellant was at her 16th birthday and continued to have contact with her family. V gave further evidence that after she had married she started seeing the appellant on a professional basis as her general practitioner. These professional visits were on a regular basis. In about the year 2000 she was feeling depressed and the appellant referred her to a psychiatrist (whom I will refer to as “Dr G”). V gave evidence that she then saw Dr G on a regular basis, and as a result of those visits she complained to the police about what had happened with the appellant. She did that in August 2002. It was an agreed fact that between 29 March 2001 and 1 August 2002 V consulted Dr G on 40 occasions.

Decision

Reasons for decision

VANSTONE J LAYTON J DAVID J
I would dismiss this ground of appeal.Conclusion For the reasons given, I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: VANSTONE J, LAYTON J, DAVID J

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