R v W, PK

Case [2016] SASCFC 5

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v W, PK

[2016] SASCFC 5

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Nicholson)

16 February 2016

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS - DIRECTIONS TO JURY

Appeal against conviction for the offence of persistent sexual exploitation of a child under the age of 17.    

The appellant appeals on the basis that the Judge erred in admitting the evidence of a complaint and that inadequate or incorrect directions were given on the topics of forensic disadvantage and prior inconsistent statements.

Held by Kourakis CJ (Kelly and Nicholson JJ agreeing) allowing the appeal:

1. The evidence of the complaint was properly admissible.

2. The directions given with respect to prior inconsistent statements did not unfairly diminish  the significance of the inconsistency.

3. The learned Judge failed to adequately direct the jury on the forensic disadvantage of the appellant arising out of the long delay in bringing the prosecution.

There has been a miscarriage of justice due to inadequate directions being given in respect of forensic disadvantage specific to the appellant’s case. 

The appeal is allowed and the conviction set aside. Matter remitted to the District Court for trial.

Evidence Act (SA) 1929 s 34M, s 34CB, referred to.
R v Cassebohm (2011) 109 SASR 465; R v C, CA [2013] SASCFC 137, considered.

R v W, PK
[2016] SASCFC 5

Court of Criminal Appeal:  Kourakis CJ, Kelly and Nicholson JJ

  1. KOURAKIS CJ:    The appellant seeks permission to appeal against his conviction for the offence of persistent sexual exploitation of a child under the age of 17.

  2. The victim of the offending, S, was the appellant’s younger sister. The charged offending was allegedly committed between August 1977 and January 1982, when the appellant was aged between 18 and 23 years and S was aged between 11 and 16 years. The offending was alleged to have occurred on and around the family farm in Mount Gambier.

  3. The appellant was tried in the District Court and was found guilty of the offence by majority verdict of the jury.

  4. The appellant appeals on the following grounds:

    1The Judge erred in admitting the evidence of a complaint to S’s mother as initial complaint evidence;

    2The Judge failed to give adequate directions on the topic of forensic disadvantage; and

    3The Judge’s directions regarding the S’s prior inconsistent statements relating to the pool incident unfairly diminished the significance of the inconsistencies.

  5. Permission to appeal on the first ground of appeal was granted by Nicholson J on 16 November 2015. Permission to appeal in relation to grounds two and three was referred to this Court.

  6. I have concluded that the evidence of S’s complaint to her mother was properly admissible…

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AGLC
R v W, PK [2016] SASCFC 5
Case
[2016] SASCFC 5
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, R v W, PK, for alleged sexual offences against his younger sister, S. The alleged offending occurred over a period of approximately seven years, from when the appellant was about 15 years old and S was about eight years old, until S was approximately 16 years of age. The appeal was heard by Kourakis CJ, Kelly and Nicholson JJ.

The legal issues before the court were the admissibility of details of a complaint made by S to her mother, the adequacy of the trial judge's directions to the jury regarding S's prior inconsistent statements, and whether the trial judge had adequately directed the jury on the forensic disadvantage suffered by the appellant due to the significant delay in the prosecution of the charges.

The court determined that the evidence of S's complaint to her mother was admissible as it constituted an elaboration of her initial complaint. Furthermore, the directions given by the trial judge concerning S's prior inconsistent statements were found to be adequate and did not unfairly diminish the significance of those inconsistencies. However, the court found that the trial judge had failed to adequately direct the jury on the specific forensic disadvantages faced by the appellant due to the long delay in the prosecution. This included the absence of potentially crucial evidence from the appellant's deceased cousin, L, who was an independent witness to one of the alleged incidents, and the absence of evidence from the appellant's deceased mother, who might have provided relevant testimony regarding S's statements and the appellant's character.

Consequently, the court allowed the appeal on the ground of inadequate directions regarding the forensic disadvantage. The conviction was set aside, and the matter was remitted to the District Court for a new trial. The other grounds of appeal concerning the admissibility of the complaint and the directions on prior inconsistent statements were dismissed.

Orders

Orders of the court

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Background

Background to the litigation

I have concluded that the evidence of S’s complaint to her mother was properly admissible because it was an elaboration of her initial complaint. I would therefore dismiss that appeal ground. I have also concluded that the Judge’s directions on S’s prior inconsistent statements did not unfairly diminish the significance of the inconsistency, and I refuse permission to appeal on that (being the third) ground. However, I would grant permission to appeal and allow the appeal on the ground that the learned Judge failed to adequately direct the jury on the forensic disadvantage of the appellant arising out of the long delay in bringing the prosecution. I do so because the directions did not canvas the specific and significant disadvantages of the appellant in contesting the particular factual issues joined in the course of the trial.Background The appellant was born in 1959 and is S’s natural brother. S was born in 1967. The appellant is approximately seven and a half years older than S. The appellant and S grew up together on a family farm near Mount Gambier with another sister and their parents, both of whom are now deceased. Even though the charged acts allegedly occurred between August 1977 and January 1982, evidence was given of offending alleged to have occurred on a regular basis from about 1975, when the appellant was about 15 years old and S was about eight years old. The offending was alleged to have occurred frequently, sometimes weekly, until the appellant went away to college in 1978. Thereafter the offending was less frequent, occurring when the appellant returned home every fortnight or so. The appellant also travelled overseas for a period of about eight months. The last alleged occasion of abuse occurred when S was approximately 16 years of age. At the trial, S gave evidence of a number of specific offences which may be summarised as follows:1Indecent assault over clothing. Tag wrestling in the lounge room when S was eight years old;2Digital penetration when S was sitting on the appellant’s lap in ute a few weeks after the first incident;3Digital penetration when appellant was teaching S to start ute a few months after the second incident;4Digital penetration when tidying up the hayshed on the same day as the third incident;5Object penetration when S was 10 years old;6Object penetration a few months after the fifth incident;7Digital penetration in the swimming pool when S was 10 years old;8Indecent assault over clothing and digital penetration on VFL grand final day when the appellant was in second year of agricultural college;9Indecent assault over clothing and digital penetration on Hundred Line Road after the eighth incident;10First occasion of penile/vaginal intercourse in the shearing shed when S was 13 years old; and11Indecent assault over clothing in the shearing shed when S was approximately 16 years old. It is convenient to say something more about the seventh incident. S testified that her cousin, L, who she claimed was intellectually challenged, was present in the pool at the time and participated in the incident at the appellant’s instigation. L had died before the trial but S testified that he had apologised to her before his death. That testimony was strongly challenged at trial.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J NICHOLSON J
The Judge could have brought these specific disadvantages to the attention of the jury by making observations of the following kind:There are three particular examples of the forensic disadvantage of which I have spoken in general terms, which you may wish to consider in this case. The assessment of the significance or otherwise of these matters is for you. The fact that I mention these three matters does not mean that there are not others. It is for you to consider whether and to what extent the accused has been disadvantaged. However, the three matters that I mention are these:1. The accused’s cousin L may have been in a position to give evidence concerning the incident in the pool. He was an independent witness to the only one of the specific alleged incidents which was not committed when S and the accused were alone. The passage of time and his death has denied the accused the possibility of the assistance of an independent witness. 2. On the evidence of VL, S did not make a complaint to her or her mother. S’s mother would have been in a position to give evidence about whether S said that the accused had raped her, or that she wanted to rape the accused. The passing of the accused’s mother has denied him the opportunity to investigate what was said in his absence and possibly lead evidence from his mother.3. Finally too, the accused’s mother may have been in a position to give evidence on the question of S leaving her children in the care of the accused. Ladies and gentlemen, we cannot know what L and the accused’s mother would have said if called to testify. You are not to speculate about what they might or might not have said. However, in considering whether or not you accept S’s testimony and whether the offence has been proved beyond reasonable doubt, you should consider whether you can be so satisfied in the absence of any evidence from the accused’s mother or L.Conclusion I would allow the appeal on ground 2. There has been a miscarriage of justice because the Judge failed to give adequate directions on the forensic disadvantage specific to the appellant’s case. I would set aside the conviction and remit the matter to the District Court for trial. I dismiss the first ground of appeal. The evidence of S to her mother was properly admissible as it was an elaboration of her initial complaint. I dismiss the third ground of appeal. The Judge’s directions regarding S’s prior inconsistent statements did not diminish the significance of the inconsistency. I agree with the orders proposed by the Chief Justice and with his reasons. I would allow the appeal. I agree with the orders proposed by the Chief Justice for the reasons his Honour has given.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J, NICHOLSON J

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