(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice White)
10 November 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction - appellant found guilty by a jury of two counts of indecent assault, one count of attempted unlawful sexual intercourse, and two counts of unlawful sexual intercourse - at trial the prosecution led evidence that the appellant made two payments to the victim, the first of which the appellant denied making, the second he admitted but characterised as a loan - evidence of the payments was put to the jury as supporting an inference that the appellant was trying to buy the victim's silence - whether judge erred in law in failing to direct the jury that it could only use evidence of the first payment if it was satisfied beyond reasonable doubt that it was made and that it could only use evidence of either payment if it found there was no rational explanation for the payments other than the appellant's guilt - whether judge required to warn the jury that there might be other reasons for making the payments - whether verdicts were unreasonable.
Held (Vanstone J, Sulan J agreeing): appeal dismissed - jury did not have to be satisfied of the payment evidence beyond reasonable doubt before using it in the way suggested by the prosecutor - jury did not have to exclude any other rational hypothesis for the payments consistent with innocence before using the evidence - in the circumstances there was no requirement to direct the jury as to other motives the accused may have had for paying the money - in any event the suggested failure to direct did not go to the application of a rule of law - the verdicts were not unreasonable.
Held (White J dissenting): judge erred by not giving an Edwards type direction in respect of the appellant's post alleged offence conduct.
[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.
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Details
AGLC
R v Wildy [2011] SASCFC 131
Case
[2011] SASCFC 131
Decision Date
CaseChat Overview and Summary
The case of R v Wildy involved an appeal by the appellant against his conviction on multiple counts of sexual offences. The appellant was found guilty by a jury of two counts of indecent assault, one count of attempted unlawful sexual intercourse, and two counts of unlawful sexual intercourse. The offences were committed against a single victim, J, over different occasions. The trial judge's directions to the jury concerning the admissibility and use of evidence related to financial payments made by the appellant to the victim were central to the appeal.
The court was required to decide whether the trial judge erred in not directing the jury that they could only consider evidence of the payments if they were satisfied beyond reasonable doubt that the payments were made and that there was no rational explanation for the payments other than the appellant's guilt. Additionally, the court needed to determine if the trial judge was required to warn the jury that there might be other reasons for making the payments and whether the verdicts were unreasonable or unsafe.
The court held that the jury did not need to be satisfied beyond reasonable doubt that the payments were made before considering them in the way suggested by the prosecutor. The court also ruled that the jury did not need to exclude any other rational hypothesis for the payments that was consistent with innocence before using the evidence. The court found that there was no requirement to direct the jury as to other motives the accused may have had for paying the money and that the failure to do so did not go to the application of a rule of law. The verdicts were deemed not unreasonable or unsafe, leading to the dismissal of the appeal.
The final orders of the court were to dismiss the appeal and affirm the convictions as originally decided by the jury.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
In addition to his complaint that the trial Judge did not direct the jury appropriately in relation to this evidence, the appellant also contends that the verdicts are unsafe, unreasonable and against the weight of the evidence.Background Circumstances A jury convicted the appellant of five sexual offences. The first two offences were committed on the one occasion, probably sometime in 1979. Both were offences of indecent assault[1] and involved one victim, J.[1] Contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The remaining offences were also committed on a single occasion, in 1984 and also involved J. One of the offences was attempted unlawful sexual intercourse[2] (anal sexual intercourse) and the other two were offences of unlawful sexual intercourse[3] (fellatio and anal sexual intercourse respectively).[2] Sections 49(3) and 270A of the CLCA.[3] Contrary to s 49(3) of the CLCA. J was born in November 1967 and was 11 or 12 years old when the first two offences were committed. He was 16 years of age when the next group of offences were committed. J was the youngest child in his family. When he was five years of age, his father separated from his mother and effectively ceased all contact with J. J’s mother died when he was nine years of age. He then went to live for a time with an older sister. For these and other reasons, J had a very difficult childhood and, at one stage while his mother was still alive, was sent to live in a boys’ home. When J was 9 or 10 years old, he joined a Scout group at which the appellant was a leader. He struck up a friendship with the appellant. J said that at one stage when he was in trouble, he went to stay with the appellant who was then living with his parents. Later still, J stayed regularly at a house in Kensington Park which the appellant was sharing with a Mr Wright. J gave evidence of the appellant’s conduct one night when he and the appellant were alone in the Kensington Park house. J was in bed distressed. The appellant came to comfort him and, after a time, got into the bed with J. The appellant commenced fondling J’s penis and later rubbed his erect penis against J’s bottom until he ejaculated. The fondling of the penis was the indecent assault which was the subject of Count 1, and the rubbing of the appellant’s penis against J’s bottom the indecent assault which was the subject of Count 2. J said that shortly after these incidents, the appellant started buying things for him such as clothes, a pushbike, a surfboard and shoes. Other evidence indicated that in late 1979 or early 1980, the Department of Family and Community Services (FACS) placed J in the appellant’s care as a foster parent. J continued in the appellant’s care until at least 1982. The appellant’s purchases for J appear to have coincided with the period during which J was in his care. J said that at one stage the appellant took him on road trip to Perth. They travelled in a Jaguar motor vehicle. He said that further sexual activity occurred between him and the appellant in a motel room in Perth. This activity included mutual masturbation, fellatio, attempts by the appellant to engage in anal sexual intercourse with J, and J’s engagement in anal sexual intercourse with the appellant. J claimed that conduct of a like nature also occurred on various occasions before and after the trip to Perth, but he was unable to give any details about these incidents. None of this alleged conduct was the subject of any charge.
Evidence
Evidence Before The Court
In summary, I consider that Ground One succeeds and that, subject to consideration of Ground Two, a new trial should be ordered.Ground 2: Verdicts Unsafe, Unreasonable and Against the Weight of the Evidence The appellant submitted that each of the verdicts was unsafe, unreasonable and against the weight of the evidence with the effect that his convictions should be quashed and verdicts of acquittal entered. In support of this ground the appellant referred first to the fact that the offences were said to have occurred more than 30 years before the trial, to the effect which that lapse of time had had on the quality of the prosecution evidence, and on his own ability to defend himself. He drew attention to the absence of any contemporaneous evidence providing support for J’s claims. In addition, the appellant drew attention to a number of aspects of the evidence in which J’s memory was shown to be unreliable. The information alleged that the first two offences had occurred at “Newton or another place” whereas J said, for the first time in his evidence, that those two offences had occurred at Kensington Park. J had said that he and the appellant had travelled together to Perth in a Jaguar motor car. Mr Gurry and Ms Calder, on the other hand, supported the appellant’s evidence that they had never provided their Jaguar to the appellant for such a trip. J had little recollection of the fact that the appellant had been appointed by FACS as his foster parent whereas it was plain from the evidence of the appellant, Ms Calder and Mr Wright that such a placement had been made. J did not remember all the addresses at which he had lived with the appellant nor the fact that he had lived at the Gurry home with the appellant’s nephew. J did not remember a holiday which he had taken with Mr and Mrs Gurry and was mistaken as to the first name of Mr Wright. This is not an exhaustive catalogue of the matters in respect of which there appeared to be some shortcomings in J’s memory. The appellant drew attention to the fact that at one stage he had taken J to see a child psychologist for assessment and treatment. He asked the jury to infer that he would not have taken such a step if he had in fact being sexually abusing J, because of the risk of J disclosing that fact. Further, the appellant drew attention to the fact that J had not made any report of sexual abuse to the child psychologist. The approach required of this Court when considering a ground of appeal of the present kind is well known. The plurality said in M v The Queen:[51]Where, notwithstanding as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe and unsatisfactory, the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the Court must not disregard or discount either the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations.I have reviewed the evidence at the trial with these considerations in mind.[51] (1994) 181 CLR 487.
Decision
Reasons for decision
WHITE J
(dissent)
As I said, I have no misgivings about the verdicts. In my view there is no substance in this ground of appeal.Conclusion I would dismiss the appeal. This appeal raises questions about the directions which a Judge should give to a jury when the prosecution relies in part on evidence of a form of post offence conduct - more neutrally, post alleged offence conduct - of an accused. The conduct of this kind alleged against the appellant was his response to an accusation made by the complainant some years after the alleged offending, comprising in part his failure to challenge or enquire about the abuse alleged by the victim, and in part the financial assistance which he gave to the complainant shortly after the accusation was made. The prosecution alleged that, by providing that assistance, the appellant had sought to cause the complainant to refrain from reporting his conduct. In addition to his complaint that the trial Judge did not direct the jury appropriately in relation to this evidence, the appellant also contends that the verdicts are unsafe, unreasonable and against the weight of the evidence.Background Circumstances A jury convicted the appellant of five sexual offences. The first two offences were committed on the one occasion, probably sometime in 1979. Both were offences of indecent assault[1] and involved one victim, J.[1] Contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The remaining offences were also committed on a single occasion, in 1984 and also involved J. One of the offences was attempted unlawful sexual intercourse[2] (anal sexual intercourse) and the other two were offences of unlawful sexual intercourse[3] (fellatio and anal sexual intercourse respectively).[2] Sections 49(3) and 270A of the CLCA.[3] Contrary to s 49(3) of the CLCA. J was born in November 1967 and was 11 or 12 years old when the first two offences were committed. He was 16 years of age when the next group of offences were committed. J was the youngest child in his family. When he was five years of age, his father separated from his mother and effectively ceased all contact with J. J’s mother died when he was nine years of age. He then went to live for a time with an older sister. For these and other reasons, J had a very difficult childhood and, at one stage while his mother was still alive, was sent to live in a boys’ home. When J was 9 or 10 years old, he joined a Scout group at which the appellant was a leader. He struck up a friendship with the appellant. J said that at one stage when he was in trouble, he went to stay with the appellant who was then living with his parents. Later still, J stayed regularly at a house in Kensington Park which the appellant was sharing with a Mr Wright. J gave evidence of the appellant’s conduct one night when he and the appellant were alone in the Kensington Park house. J was in bed distressed. The appellant came to comfort him and, after a time, got into the bed with J. The appellant commenced fondling J’s penis and later rubbed his erect penis against J’s bottom until he ejaculated. The fondling of the penis was the indecent assault which was the subject of Count 1, and the rubbing of the appellant’s penis against J’s bottom the indecent assault which was the subject of Count 2.