SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
SPC v THE QUEEN
[2020] SASCFC 43
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Bampton)
28 May 2020
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 for two counts of aggravated causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), three counts of aggravated threatening life contrary to s 19(1) of the CLCA and two counts of rape contrary to s 48(1) of the CLCA.
The victim of the offences was Ms X, the appellant’s wife. The offences occurred in the course of, and ultimately brought to an end, a tumultuous relationship between the appellant and Ms X. Ms X testified that their relationship was an abusive one and gave an account of violence and rape which preceded the charged counts (the relationship evidence).
The appellant appeals on the grounds that:
1. The Judge failed to adequately direct the jury on the use of evidence of Ms X’s distress when she reported the offending to a police officer at the Two Wells Police Station.
2. The Judge failed to properly direct the jury on the use of the evidence of the violent relationship on the element of consent on the rape charges.
3. The verdict on count 8, the last rape offence, was unreasonable because the evidence could not exclude the possibility that the appellant failed to appreciate that Ms X was not consenting.
Held per Kourakis CJ (Nicholson and Bampton JJ agreeing), dismissing the appeal:
1. It was not put by the prosecutor, nor left to the jury by the Judge, that Ms X’s distress was corroborative or supportive of her testimony. Moreover, counsel for the appellant at trial assented to the Judge’s proposal not to give any directions on the evidence of distress.
2. The Judge’s directions on the use of the relationship evidence in considering whether the objective elements of the offence had been made out were sound.
3. The verdict on count 8 was not unreasonable; it was amply supported by Ms X’s evidence. There was no evidentiary matter capable of raising a doubt as to the appellant’s guilt which could not be dissipated by the jury’s evaluation of Ms X’s testimony.
Criminal Law Consolidation Act 1935 (SA) ss 19, 24, 48; Evidence Act 1929 (SA) ss 34P, 34R, referred to.
R v Byczko (No 2) (1997) 17 SASR 460; R v Schlaefer (1984) 37 SASR 207; R v Dhir [2019] SASCFC 55, discussed.
Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Quist (2017) 127 SASR 471; R v Forrest (2016) 125 SASR 319; R v Pringle
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CaseChat Overview and Summary
The legal issues before the Court were whether the jury's verdict on count 8 was unreasonable or unsupported by the evidence, and whether there had been a misdirection or non-direction by the trial judge regarding the use of evidence of discreditable conduct.
The Court dismissed the appeal. Kourakis CJ found that the verdict on count 8 was amply supported by the evidence of Ms X, and that there was no evidentiary matter capable of raising a doubt as to the appellant's guilt that the jury could not have dissipated through their evaluation of Ms X's testimony. Nicholson and Bampton JJ agreed with the Chief Justice's reasons for dismissing the appeal on the unreasonable verdict ground. They also addressed the ground of appeal concerning the use of discreditable conduct evidence, noting that while a judge must explain the permissible uses of such evidence under section 34P of the *Evidence Act 1929* (SA), any failure to identify all possible permissible uses, in this instance, did not prejudice the appellant, as the judge had clearly directed the jury on both permissible and impermissible uses.
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