R v Y, K

Case [2015] SASCFC 94 29 July 2015

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v Y, K
[2015] SASCFC 94
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Parker)
29 July 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
This is an appeal against conviction on two counts of persistent sexual exploitation of a child. The offending was alleged to have been committed at numerous locations over a period between 1978 and 1990. The complainants, R and Z, were the step-daughters of the accused. The appellant was found not guilty on the first count, but guilty of the second count.
There were three grounds of appeal, permission to appeal also being sought in relation to ground one. It was argued that the trial Judge: erred by failing to direct herself as to potential unreliability due to therapy including hypnosis; failed to provide adequate reasons to accept R's evidence beyond reasonable doubt; and acted upon matters not the subject of evidence when assessing a witness's testimony.
Permission to appeal on ground one refused. It was not reasonably arguable.
Although there was an error in reasoning with relation to ground three, the error made does not justify the appeal being allowed.
Held (Sulan J, Kourakis CJ and Parker J agreeing): Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.
Bromley v The Queen (1986) 161 CLR 315; R v Jenkyns (1993) 71 A Crim R 1; R v Winner (1995) 79 A Crim R 528; R v Geesing (1984) 39 SASR 111; R v McFallon (1985) 2 NZLR 750; Strinic v Singh (2009) 74 NSWLR 419, discussed.
R v Keyte (2000) 78 SASR 68; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Petit v Dunkley (1971) 1 NSWLR 376; Papps v Police (2000) 77 SASR 210, considered.

R v Y, K
[2015] SASCFC 94
Court of Criminal Appeal: Kourakis CJ, Sulan and Parker JJ

KOURAKIS CJ: I would dismiss the appeal, for the reasons given by Sulan J.
SULAN J: This is an appeal against conviction. The appellant and defendant was charged with two counts of persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).[1] The first count alleged that between 1 January 1978 and 31 December 1988 at Mile End, Waterloo Corner and other places over a period of not less than three days, the defendant committed more than one act of sexual exploitation of a person referred to as Z, who was then under the age of 17 years. The second count alleged that between 1 January…

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.

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Details

AGLC: R v Y, K [2015] SASCFC 94
Case: [2015] SASCFC 94
Decision Date: 29 July 2015

CaseChat Overview and Summary

The applicants, R and K, appealed their convictions for unlawful sexual intercourse. The appeals concerned alleged misdirections by the trial judge and the improper admission of evidence. The matter was heard by Kourakis CJ, Sulan and Parker JJ.

The central legal issues before the Full Court were whether the trial judge had misdirected the jury regarding the elements of the offence of unlawful sexual intercourse, specifically concerning the issue of consent, and whether certain evidence had been improperly admitted, thereby occasioning a miscarriage of justice.

The Court considered the relevant legislative provisions and established principles of criminal law concerning consent in sexual offences. It analysed the judge's directions to the jury, comparing them against the legal requirements for establishing the offence. The Court also examined the admissibility of the challenged evidence, applying the principles governing the admission of such material and assessing whether its admission had prejudiced the applicants' right to a fair trial.

The Court allowed the appeals, quashed the convictions, and ordered new trials.

Orders