R v W, GC (No 2)

Case [2007] SASC 129

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WILSON (No 2)

[2007] SASC 129

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice White)

19 April 2007

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS

Appeal against conviction - appellant convicted by jury verdict on two counts of unlawful sexual intercourse - whether the appellant should be acquitted on count one as the count alleged a statutory offence that did not exist at the relevant time - whether the Judge failed to give appropriate directions with regard to the onus of proof - whether the Judge failed to give an adequate warning about delay - whether the Judge failed to adequately assist the jury in regard to issues concerning the complainant's credit - Held: verdict on count one set aside - verdict on count two set aside - remitted for retrial - Judge's directions regarding the onus of proof were inadequate - Judge failed to point out the danger of convicting on the evidence of the complainant given the delay that had occurred - Judge failed to adequately assist the jury in regard to issues concerning the complainant's credit - appeal allowed.

Criminal Law Consolidation Act 1935 (SA) s 49, s 277, s 281 and s 354; Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) s 9 and s 11; Criminal Law (Sentencing) Act 1988 (SA), referred to.
Longman v The Queen (1989) 168 CLR 79; R v Standley (1996) 90 A Crim R 67; R v Wong (1990) 54 SASR 297; R v McVitie [1960] 2 QB 483; R v Bedi (1993) 61 SASR 169; R v P (1986) 41 SASR 360; R v Ayres [1984] 1 AC 447; Kahatapitiye v R (2004) 146 A Crim R 542; R v McLaughlin (1982) 76 Cr. App. R 42; R v Power (1977) 66 Cr App R 159; Maher v The Queen (1987) 163 CLR 221; Calabria v The Queen (1983) 151 CLR 670; R v B [1999] SASC 403; R v Wallwork (1958) 42 Cr App R 153; Wright v O’Sullivan [1948] SASR 307; Gigante v Hickson (2001) 3 VR 296; S v R (1989) 168 CLR 266; R v S (1992) 58 SASR 523; R v Liddy (2002) 81 SASR 22; Johnson v Miller (1937) 59 CLR 467; R v Pfitzner (1976) 15 SASR 171; R v Dossi (1918) 13 Cr App R 158; R v Frederick [2004] SASC 404; R v VHP [1997] NSW CCA (unreported, Gleeson CJ, Handey JA and Studdart J, 7 July 1997); R v Stringer (2000) 116 A Crim R 118; R v BFB (2003) 87 SASR 278; R v BWT (2002) 54 NSWLR 241, considered.

R…

Continue reading R v W, GC (No 2)

Sign in free to access the full text

Details
AGLC
R v W, GC (No 2) [2007] SASC 129
Case
[2007] SASC 129
Decision Date

CaseChat Overview and Summary

In the case of R v W, GC (No 2), the appellant, W, appealed against his convictions on two counts of unlawful sexual intercourse. The dispute arose from the appellant's conviction by a jury, which he challenged on several grounds. The legal issues before the court were whether the appellant should be acquitted on count one due to the alleged non-existence of the statutory offence at the relevant time, whether the Judge failed to provide appropriate directions regarding the onus of proof, whether the Judge failed to adequately warn about the delay, and whether the Judge failed to sufficiently assist the jury in assessing the complainant's credibility.

The court found that the appellant's conviction on count one was invalid as the jury could not have returned a verdict for an offence that was not charged. Additionally, the court determined that the Judge's directions regarding the onus of proof were inadequate, as they did not clearly warn the jury about the risks of convicting based solely on the complainant's evidence, particularly given the delay in reporting the incident. The Judge also failed to adequately address the serious implications of the evidence provided by a witness, who contradicted the complainant's account, thereby affecting her credibility. These misdirections and failures to adequately assist the jury led to the conclusion that a miscarriage of justice may have occurred.

The appeal was allowed by the court. The conviction on count one was set aside, and it was left to the Director of Public Prosecutions to decide whether to lay a fresh information regarding the incident. The conviction on count two was also set aside, and a retrial was ordered. The court's decision emphasized the importance of clear judicial directions and proper assessment of evidence, particularly concerning the credibility of complainants and the implications of delays in reporting.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Judge did not give the jury a clear warning about the danger of convicting the defendant on the evidence of the complainant. The Judge informed the jury that they should scrutinise the complainant’s evidence with particular care and be careful not to act upon that evidence without bearing in mind the warning that they were to be completely satisfied of the truth and accuracy of that evidence. However, the Judge failed to point out the danger of convicting on the evidence of the complainant given the delay that had occurred. To adopt the words of Doyle CJ – “the Judge must give the jury a clear warning about the danger of convicting on the evidence of the complainant” – it must be sufficiently clear and must be adequately tied to the facts of the case. This was a material misdirection.An Item of Significant Evidence There is a further matter of concern. The complainant gave evidence that the incident giving rise to count two occurred on a boat owned by the defendant. Importantly she said that this was the last occasion that she had been on the defendant’s boat. As earlier observed, a witness, a student at the time, recalled meeting the complainant on the defendant’s boat. He provided specific detail of matters discussed that were factually correct and were of a nature where they could be expected to have been recalled. He placed the occasion at a time consistent with the defendant’s account of the incident occurring in the 1991/1992 holidays. This witness was called by the defendant. He was not challenged at all in cross-examination. It followed that his evidence raised a serious question with respect to the credibility of the complainant. In the course of summing up, the Judge made a fleeting reference to this evidence. However, he did not assist the jury at all as to the serious impact that the evidence had on the complainant’s credibility and reliability. He should have done so. The defendant advanced a number of other complaints. However, I do not consider any to be of significance. As count two is to be remitted for retrial it is not appropriate to address those matters further.Count Two – Conclusion The effect of the misdirections as to delay and the onus of proof and the failure to properly deal with evidence relevant to the complainant’s credit have led to a risk that a miscarriage of justice may have occurred. This is not an appropriate case for the application of the proviso. The misdirections were serious. It could not be said that a risk of miscarriage of justice did not arise. In these circumstances the verdict of guilty on count two should be set aside and count two remitted for retrial.Conclusion I would allow the appeal. I would set aside the conviction on count one. It is a matter for the Director of Public Prosecutions as to whether a fresh information is to be laid in respect of the incident, the subject of count one. I would set aside the conviction on count two and direct a retrial. WHITE J: In my opinion, the appeals against conviction on counts 1 and 2 should be allowed. The convictions on those counts should be set aside. I would order a retrial on count 2.

Decision

Reasons for decision

DUGGAN J
The contentions of the Crown should be rejected. Count one alleged an offence against section 49(1). The jury could not have returned a verdict of guilty to an offence against section 49(3). They are separate offences.[13] In these circumstances, the proviso contained in section 354(2) cannot be used to substitute a conviction under section 49(3). The defendant was not charged with an offence against section 49(3). [13] R v B [1999] SASC 403 at [15]-[17], [121] (Lander J).Conclusion – Count One It follows that the verdict on count one cannot be sustained. The complainant was not under 12 years of age.[14] The conviction in respect of count one should be set aside. Count Two[14] R vStandley (1996) 90 A Crim R 67 at 77; R v Wong (1990) 54 SASR 297 at 306.The Adequacy of the Complaint The facts relevant to Count 2 have been discussed earlier in these reasons. To understand the first complaint with respect to count two it is necessary to point out that the evidence of the complainant fell short of establishing that the incident occurred on Christmas day. The complainant acknowledged that the conduct could have occurred at a proximate time and date. Counsel for the defendant submitted that the Judge erred in directing the jury that the commission of the act, on Christmas day 1990 did not have to be proved beyond reasonable doubt. Counsel contended that the date alleged formed an element of the offence and had to be proved beyond reasonable doubt. Counsel for the Crown submitted that the Judge was correct to direct as he did. It was said that it was an offence to have sexual intercourse with a person in a certain age range. The offence was not that sexual intercourse took place at a particular location,[15] nor on a particular date.[16] The commission of the offence on precisely Christmas Day 1990 was not a matter that had to be proven beyond a reasonable doubt. [15] R v Wallwork (1958) 42 Cr App R 153; Wright v O’Sullivan [1948] SASR 307 at 317; and Gigante v Hickson (2001) 3 VR 296 at 300. [16] S v R (1989) 168 CLR 266 at 282; R v S (1992) 58 SASR 523; R v Liddy (2002) 81 SASR 22 at [256]. There are reasons for particularity - to enable a defendant to prepare and present a defence; to enable the jury to reach a decision with respect to the same incident; and to ensure that any conviction is not bad for duplicity.[17][17] R v Liddy (2002) 81 SASR 22 at [257]. It is generally sufficient that the prosecution identify the occasion or incident on which the offence is alleged to have taken place.[18] The general rule has been described as follows: [19][A] date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence…Thus, though the date of the offence should be alleged on the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence to the offence.[18] Johnson v Miller (1937) 59 CLR 467 at 489; R v B [1999] SASC 403 at [114]; R v Pfitzner (1976) 15 SASR 171 at 185, 192; S v R (1989) 168 CLR 266 at 274-275, 285 and R v S (1992) 58 SASR 523 at 529.[19] R v Dossi (1918) 13 Cr App R 158 at 159-160 - referred to with approval in R v Pfitzner (1976) 15 SASR 171 at 185-186; R v Liddy (2002) 81 SASR 22 at [256]; R v Frederick [2004] SASC 404 at [38]; and R v VHP [1997] NSW CCA (unreported, Gleeson CJ, Handey JA and Studdart J, 7 July 1997).

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J

Full text does not contain this section.