Scott v R

In Scott v R, the respondent was convicted of indecent assault of his eight-year-old grandchild, involving kissing on or near the vagina, and sexual intercourse, including cunnilingus. The respondent appealed against both conviction and sentence. The appeal against conviction was based on the claim that the trial miscarried due to counsel’s failure to lead evidence of an alibi, and new evidence presented on appeal suggested the respondent was elsewhere at the time of the alleged offences. The appeal against sentence claimed that the sentence was manifestly excessive, considering the applicant's contributions to the community, his good character, medical conditions, and the impact of COVID-19 and the conditions of incarceration on his vulnerability.

The court examined whether the trial miscarried due to counsel's failure to lead evidence of an alibi. The court concluded that the time was not of the essence and that the indictment specified a range of dates, meaning that the failure to lead alibi evidence did not necessarily lead to a miscarriage of justice. The court also considered whether the verdict was unreasonable by analysing the evidence, including audio-visual recordings and transcripts that referred to gestures. The court found that the gestures were significant in determining whether the prosecution proved sexual intercourse. The jury, who had the advantage of seeing the gestures, did not consider the verdict unreasonable. The appellate court did not review the evidence played to the jury, as it was not an appeal on the merits.

The court found that the sentence was excessive. The respondent's contributions to the community, good character, medical conditions, and the impact of COVID-19 and the conditions of incarceration on his vulnerability were relevant considerations. The court re-sentenced the respondent, taking into account the objective criminality and the fleeting nature of the offence, as well as the fact that the respondent stopped when asked. The court considered the hardship to third parties and extra-curial punishment but found that the specific grounds were not made out. The respondent's sentence was excessive in an exceptional case.

The court ordered that the conviction be quashed and a new trial be ordered. The court also ordered that the sentence be quashed and re-sentenced, taking into account the factors mentioned above. The court noted that the respondent's good character and contributions to the community were relevant considerations in determining the sentence. The court also noted that the respondent's medical conditions and the impact of COVID-19 and the conditions of incarceration on his vulnerability were relevant considerations in determining the sentence.