R v K No. SCCRM-96-404 Judgment No. 6193 Number of pages - 13 Criminal law - [1997] SASC 6193 - SASC 1997 case summary — Zoe

[9]

The grounds on which I agree that the convictions should be set aside are that the jury was inadequately directed as to the effect on the credibility of the complainant of delay in the making of the complaint, the circumstances of the making of the complaint and inconsistencies led by the prosecution. The convictions are not set aside by virtue of their being unsafe and unsatisfactory because the evidence was insufficient to support the two verdicts of guilty. As the Chief Justice has observed, the evidence presented by the prosecution suffered from no significant inherent flaws, and was evidence upon which a reasonable jury could convict. The convictions are not set aside as being unsafe and unsatisfactory because there was insufficient evidence to support the two verdicts of guilty in the light of the acquittals on Counts 3 and 4. In that respect, the situation in R v Dolan [1992] SASC 3638; (1992) 58 SASR 501 is to be distinguished. The two counts of unlawful sexual intercourse on which the appellant in that case was found guilty involved vaginal penetration by the finger. The two counts on which he was found not guilty involved penetration by a dildo in one count and by the penis in another. Particulars which had been given of the counts were rudimentary, to say the least, and there was evidence of a course of conduct of multiple incidents of each type of unlawful sexual intercourse with which he was charged. The Court of Appeal considered that in the circumstances of that case and the way it was presented, if the complainant's credibility was in doubt on two of the counts, it was impossible to feel any confidence about the truth of the other charges. That in itself was an important reason why the verdicts of acquittal were substituted. It was also held, that as the evidence on a retrial could not reasonably include any of the incidents relating to dildo or penile penetration, and as the lack of particularity necessarily required some reference to a course of conduct, it would be a "fundamentally different story" from that in the first trial.

Parties

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Respondent/Defendant:

K No. SCCRM-96-404 Judgment No. 6193 Number of pages - 13 Criminal law

Cases Cited (20)

R v K No. SCCRM-96-404 Judgment No. 6193 Number of pages - 13 Criminal law (1997) 68 SASR 405 [1997] SASC 6193 (13 June 1997)

Criminal law - jurisdiction, practice and procedure - summing up - juries --appeal against conviction - appellant convicted of indecent assault - directions to jury - delay in complaint - whether direction regarding inferences open to jury as to credit of complainant required - both the delay and the circumstances of the complaint called for a clear warning by the trial judge - the failure to warn about the delay and about the circumstances of the complaint constituted an error of law. Longman v R [1989] HCA 60; (1989) 168 CLR 79; Crofts v R [1996] HCA 22; (1996) 70 ALJR 917, applied.

Criminal law - jurisdiction, practice and procedure - summing up - whether jury were indequately directed as to the use they could and could not make of evidence - submission rejected - direction was adequate. R v Dolan [1992] SASC 3638; (1992) 58 SASR 501, applied.

Criminal law - jurisdiction, practice and procedure - summing up - whether trial judge erred in law by telling jury, in summing up, of their power to return a majority verdict after they had been deliberating for at least four hours - submission rejected - impractical to conceal from the jury knowledge of what the law provides in this respect - Parliament has given the jury power to return a majority verdict and that power cannot and should not be withheld from them. Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541, discussed. Rusovan v The Queen [1994] SASC 4496; (1994) 62 SASR 86, considered.

"A trial judge has the general responsibility of giving appropriate directions to assist the jury in the performance of their function as the judges of fact. That responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury." 32. It is established that delay by the victim in complaining of sexual misconduct, in a case involving a charge of sexual misconduct may, although it does not necessarily, cast doubt upon the reliability of the evidence given by the complainant. Everything depends upon the circumstances and the explanation for the failure to complain sooner: see Crofts v The Queen [1996] HCA 22; (1996) 70 ALJR 917 at 920 Dawson J, and at 928 Toohey J, Gaudron J, Gummow J and Kirby J.

In Rusovan v The Queen [1994] SASC 4496; (1994) 62 SASR 86 this Court said that it was undesirable to bring a jury back into court as soon as they had deliberated for four hours. The Court made the point that there is no obligation to do so. The judgments indicate that it is preferable to allow the jury some additional time. Moreover, the judgments in that case appear to favour the course, which appears to me to be appropriate, of inviting submissions from counsel before the jury is asked to return and, if the jury is asked to return, of enquiring whether the jury requires more time or whether it is encountering difficulty in reaching a verdict. It is only in the latter event that it is appropriate to give a Black direction.

(1997) 68 SASR 405

(1989) 168 CLR 79

(1996) 70 ALJR 917

(1992) 58 SASR 501

(1993) 177 CLR 541

(1994) 62 SASR 86

(1992) 58 SASR 501

(1968) 126 CLR 198

(1983) 153 CLR 317

(1911) 13 CLR 619

(1984) 154 CLR 627

(1919) 27 CLR 13

(1982) 30 SASR 161

R v K No. SCCRM-96-404 Judgment No. 6193 Number of pages - 13 Criminal law

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Judgment (17 paragraphs)

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Cases Cited (20)

R v K No. SCCRM-96-404 Judgment No. 6193 Number of pages - 13 Criminal law (1997) 68 SASR 405 [1997] SASC 6193 (13 June 1997)