R v W, P R - [2005] SASC 463

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v W, P R
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice White)
14 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appeal against six convictions recorded in the District Court on two counts of unlawful sexual intercourse, two counts of attempting to dissuade a witness from giving evidence, two counts of breach of bail - on appeal - consideration of the issue of joinder between counts as a matter of law and also as a discretion of the trial Judge - consideration of the lack of direction on the use of evidence between counts - consideration of the consistency of verdicts between counts - consideration of whether, in the circumstances the verdict is unreasonable - appeal allowed.
Criminal Law Consolidation Act 1935 s 278(1), referred to.
R v Barrell & Wilson (1979) 69 Cr App R 250; R v Liddy (2002) 81 SASR 22, considered.

R v W, P R
[2005] SASC 463
Court of Criminal Appeal: Doyle CJ, Sulan and White JJ

DOYLE CJ: Mr W appealed against six convictions recorded in the District Court after a trial before a jury.
After hearing the appeal, the Court allowed the appeal in part. The Court set aside two of the convictions, and ordered a retrial of the relevant charges on the Information. The Court dismissed the appeal in relation to the other four convictions.
These are my reasons for joining in those orders.
The charges
The Information contained eight counts.
Counts 1, 2 and 3 charged the offence of unlawful sexual intercourse with Ms P A, a person under the age of 17 years.
Count 1 alleged an offence between February 1998 and February 1999. Counts 2 and 3 alleged offences between 21 December 2002 and 23 December 2002. These alleged offences occurred in the course of a single incident.
Count 4 alleged an offence of indecent assault on Ms P A. This was alleged to have occurred between January 2003 and May 2003, but the evidence at trial was to the effect that it occurred in about May 2003.
After being questioned about the allegations made by Ms P A, and having been charged with the first four offences, Mr W was released on bail. A condition of the bail was that he not contact Ms L C. She was a prospective witness at the trial of the first four charges.
Count 5 alleged that in December 2003 Mr W attempted to dissuade Ms L C from giving evidence. Count 6 alleged that this was a breach of Mr W’s bail agreement. Count 7 alleged that in August 2004 Mr W attempted to dissuade Ms L C from giving evidence. Count 8 alleged that this was a breach of Mr W’s bail agreement.
The jury…

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, P R

Details

AGLC: R v W, P R [2005] SASC 463
Case: [2005] SASC 463
Decision Date: 14 December 2005

CaseChat Overview and Summary

The case of R v W, P R involved an appeal against six convictions recorded in the District Court. The appellant, Mr W, was convicted on two counts of unlawful sexual intercourse, two counts of attempting to dissuade a witness from giving evidence, and two counts of breach of bail. The appeal before the court centred on the joinder of counts, the adequacy of directions given to the jury, the consistency of the verdicts, and the reasonableness of the verdicts. The court was tasked with determining whether the trial judge's handling of these issues warranted a new trial.

The central legal issues in the appeal were whether the trial judge erred in joining the counts, whether the judge failed to adequately direct the jury on the use of evidence between counts, whether the verdicts were consistent with one another, and whether the verdicts were unreasonable in the circumstances of the case. The court considered whether these errors, if any, were significant enough to necessitate a retrial on certain counts and whether the sentence imposed required adjustment.

In its reasoning, the court found that while some of the grounds of appeal were without merit, there was a significant error in the trial judge's handling of the joinder of counts and the directions given to the jury regarding the use of evidence between counts. The court determined that these errors affected the fairness of the trial and led to an unreasonable verdict on certain counts. Consequently, the court allowed the appeal in part, setting aside the convictions on counts 2 and 3 and ordering a retrial on those counts. The appeal against the convictions on counts 5 to 8 was dismissed, and the sentence was set aside pending re-sentencing after the retrial.

The final orders of the court reflected the partial success of the appeal. The convictions on counts 2 and 3 were set aside, and a retrial was ordered for these counts. The appeal against the convictions on counts 5 to 8 was dismissed, and the sentence was set aside pending re-sentencing after the retrial of counts 2 and 3. The judges concurred with the reasons provided by the Chief Justice and found no need to add further commentary.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my opinion it was open to the jury to be satisfied of guilt beyond reasonable doubt.Conclusion For those reasons, I joined in orders which reflected my conclusion that while grounds 1 and 4 of the grounds of appeal should be rejected, ground 2 should be upheld. Accordingly I joined in orders that the conviction on count 2 and on count 3 should be set aside and that there should be a retrial on those counts. I joined in the dismissal of the appeal against conviction on counts 5 to 8. The sentence imposed on Mr W was set aside, that being necessary as a result of partial success of the appeal. I joined in an order that Mr W should be re-sentenced after count 2 and count 3 have been disposed of. SULAN J: I agree with the reasons of the Chief Justice. WHITE J: I agree with the reasons given by the Chief Justice for the orders made by the Full Court on 22 November 2005. There is nothing which I wish to add.

Ratio Decidendi

Legal Principle Established

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