Evidence—Similar facts—Criminal trial—Rape—Joinder of charges—Accused charged with sexual offences against three girls—Offences committed in same area—Similar method of attack—Whether evidence in relation to counts involving one girl admissible in relation to those involving others—Criminal Law Consolidation Act 1935 (S.A.), s. 278(1).
Decisions
1984, February 14. The following written judgments were delivered:- GIBBS C.J. This is an application for special leave to appeal from a decision of the Court of Criminal Appeal of the Supreme Court of South Australia dismissing the applicant's appeal from his conviction on eight counts of sexual offences - one of attempted rape and seven of rape as defined in the Criminal Law Consolidation Act 1935 (S.A.), as amended. (at p530)
2. The first count in the information charged that the applicant on 1 August 1981 at Queenstown attempted to have oral sexual intercourse with one L.K. without her consent; the second, third and fourth counts charged that the applicant on 6 September 1981 at Woodville South had oral sexual intercourse, vaginal sexual intercourse and anal sexual intercourse respectively, with one V.A.H. without her consent; and the fifth, sixth, seventh and eighth counts charged that the applicant on 16 October 1981 at Queenstown had vaginal sexual intercourse, anal sexual intercourse, oral sexual intercourse and vaginal intercourse respectively, with one D.M.T. without her consent. At the trial, counsel for the applicant submitted that the second, third and fourth counts should be tried separately from the first count and the fifth to the eighth counts. He conceded that the charge on the first count was properly joined with the charges in the fifth to the eighth counts, although in the Court of Criminal Appeal, and before us, it was sought to submit an argument contrary to that concession. Section 278(1) of the Criminal Law Consolidation Act gives power to join charges which are founded on the same facts, or form or are part of a series of offences of the same or a similar character, and s. 278(2) gives the court a discretionary power to order a separate trial of any one or more offences charged in an information. Before us it was accepted by counsel for the prosecution that where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on another count. That was the view taken by the majority of the House of Lords in Director of Public Prosecutions v. Boardman (1975) AC 421, at pp 442, 447, 459 and it is a view consonant with justice, for, as Lord Cross of Chelsea said in Director of Public Prosecutions v. Boardman (1975) AC, at p 459 , to let in inadmissible evidence by trying the charges together would be to pay no more than lip service to the rule which excludes evidence of similar…
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
Sutton v The Queen [1984] HCA 5
Case
[1984] HCA 5
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Sutton against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from the appellant, specifically statements made by him to police and a confession.
The primary legal issue before the Court was whether the trial judge had erred in admitting the appellant's confession into evidence. This involved determining whether the confession was voluntary, having regard to the circumstances in which it was made, and whether its admission would be unfair to the appellant, notwithstanding its voluntariness. The Court also considered the admissibility of other statements made by the appellant to police.
The Court applied the principles governing the admissibility of confessions, which require that a confession be voluntary and not obtained by undue pressure or inducement. It was held that the trial judge had correctly assessed the voluntariness of the confession. However, the Court then considered the second limb of the admissibility test, which allows for the exclusion of evidence if its probative value is outweighed by the danger of unfair prejudice to the accused. The Court found that the admission of the confession, in the circumstances, created an unacceptable risk of unfair prejudice to the appellant, and therefore ought to have been excluded.
Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.