Gray v The Queen - [2020] SASCFC 46

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
GRAY v THE QUEEN
[2020] SASCFC 46
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Lovell)
1 June 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
The appellant was convicted by a jury of one count of rape pursuant to s 48(1) of the Criminal Law Consolidation Act 1935 (SA). The prosecution led discreditable conduct evidence. The Trial Judge directed that the jury was entitled to use the discreditable conduct evidence in its assessment of the truthfulness, credibility and reliability of the appellant's evidence and that it should treat the appellant's evidence with caution. After complaints from both counsel, the Trial Judge gave a redirection. The issue on appeal was whether the redirection was sufficient.
Held per Lovell J (Kourakis CJ and Nicholson J agreeing), allowing the appeal on Ground 5:
1. The Trial Judge erred in directing the jury that it could use the discreditable conduct evidence in its assessment of the appellant's evidence.
2. The Trial Judge when redirecting the jury failed to inform the jury in clear and unambiguous terms that the impugned direction was to be disregarded and that the discreditable conduct evidence could not be used for that purpose.
3. The redirection failed to remove the risk of a miscarriage of justice.
Evidence Act 1929 (SA) s 34R, s 34P, referred to.
Robinson v The Queen (1991) 180 CLR 531; R v Copeland (1997) 194 LSJS 1, considered.

GRAY v THE QUEEN
[2020] SASCFC 46
Court of Criminal Appeal: Kourakis CJ, Nicholson and Lovell JJ

KOURAKIS CJ: I joined in the orders of the Court made on 13 February 2020 for the reasons given by Lovell J.
NICHOLSON J: I joined in the orders of the Court made at the conclusion of the hearing of this appeal. I did so for the reasons now published by Lovell J.
LOVELL J:
Overview
The appellant was tried before a jury on a charge of rape. In what was an otherwise well-constructed and thorough summing up the Trial Judge, unfortunately, made two errors. Both counsel, after the summing up was completed, requested the Trial Judge re-direct the jury on the two matters; the Trial Judge did so. The question on appeal was whether the redirections were sufficient. In my view one of the redirections was insufficient.
At the conclusion of the hearing of this appeal, the Court made the following orders:
1The appeal is allowed.
2The conviction entered into at the District Court of South Australia is quashed.
3A new trial is ordered.
4Reasons are to be published at a later date.
These are my reasons for joining in those orders.
Background
The appellant pleaded not guilty before a jury to a charge of rape (s 48(1) of the Criminal Law Consolidation Act 1935 (SA)). The jury returned, by majority, a verdict of guilty.
The appellant appealed the verdict on eight grounds, including that the Trial Judge erred in directing that the jury could use discreditable conduct evidence in assessing the truthfulness of the appellant’s evidence and in failing to adequately correct that misdirection (‘Ground 5’). The appellant must succeed on this ground. It is unnecessary for me to decide the other grounds of appeal.
The Evidence
Charged Act
At the time of the alleged offending, the appellant and the complainant were in a relationship. It was common ground that anal intercourse was a regular feature of their sexual relationship. The appellant said in evidence that the complainant introduced anal intercourse into their relationship and that anal intercourse occurred every second time the couple had sexual intercourse. The complainant denied these assertions. She gave evidence that she told the appellant at the beginning of their relationship that she did not want to engage in anal intercourse. Despite this, she said anal intercourse occurred on a monthly basis. The complainant’s evidence was that the charged act was the last occasion of anal intercourse.
The complainant stated that the charged act occurred in September 2017, in the lounge room of their house at Barmera. She said that it was 11:00 pm and their children were asleep in the couple’s bedroom. The appellant was playing video games and the complainant was using her mobile phone. The appellant turned off the television and said to her “time to do your job, woman”. The complainant understood this to mean that the appellant wanted to engage in anal sex. The complainant said that she told the appellant that she was tired. The appellant responded, “do your job and then you can go off to bed”. The complainant said she consented to anal intercourse to avoid an argument with the appellant. The complainant removed her underwear and positioned herself on her knees. The complainant leaned against the couch. The appellant then placed his hands on her lower back and inserted his penis into her anus. The complainant said the appellant did not use lubricant. The complainant said that the initial penetration was not “very far” into her anus. The complainant said that it hurt and that she asked the appellant to “please stop”. The appellant said “it’s fine. I’ll be quick”. The appellant pushed his penis further into her anus (‘the charged act’). She said she told the appellant continuously that it “really hurt”. The complainant said she told the appellant “no” half a dozen times and “just kept saying ‘I can’t, I can’t, please stop’”. She said she tried to push the appellant away from her, to no avail. The complainant said she struggled to turn around as she had a spinal fusion.
The appellant ejaculated and the complainant went to the bathroom. The complainant said to the appellant “I asked you to stop … Why didn’t you stop? Why didn’t you care?”. The appellant responded “…sorry, I’ll be gentle next time” and told her to relax.
The appellant gave evidence. He agreed that he had anal intercourse with the complainant in September 2017 but denied that there was ever an incident of anal intercourse as described by her (i.e. in which she asked him to stop or told him that it hurt). He denied there ever being anal intercourse without lubrication, stating that it was impossible.
Discreditable Conduct Evidence
The complainant also described many incidents in which she alleged that the appellant had been abusive. This evidence was admitted as discreditable conduct evidence, pursuant to s 34P of the Evidence Act 1929 (SA) (‘Evidence Act'). The prosecution relied on the evidence to inform the jury about the nature of the relationship between the complainant and the appellant, the attitude the appellant held towards the complainant, why the complainant behaved the way she did during the alleged rape and why she didn’t complain. The complainant alleged that:
·the appellant threw coleslaw in her face at a family dinner, pushed her with both his hands and punched her arm;
·the appellant smashed the bedside table, broke the bed and threw a steel cap boot at the complainant’s head;
·the appellant punched her in the arm when she was seven months pregnant;
·the appellant pinned the complainant against a wall with his hand on her throat and had sexual intercourse with her;
·the appellant would slap her across the face when she cried;
·the appellant would, on a semi-regular basis, hide cigarettes from the complainant in exchange for her performing sexual acts (including anal intercourse);
·when the appellant and the complainant lived at Barmera, the appellant would push the complainant and become physically violent when he was angry;
·the appellant would be emotionally abusive towards her; the appellant told the complainant that she should “Die in hell”, that their children would be better off without her and that she should kill herself;
·the appellant lifted the complainant from the ground and slapped her on her face;
·the appellant told the complainant to “go and do it then” in response to her saying that she felt like she should go and die;
·the appellant used two hands to push the complainant to the ground as he walked past her;
·the appellant sent abusive text messages to the complainant, which were said to be verbal abuse (Exhibit P1); and
·the appellant used abusive and demeaning language towards the complainant.
Where evidence is admitted under s 34P of the Evidence Act, the Trial Judge must identify and explain the permissible and impermissible uses of the evidence.[1]
[1] Evidence Act 1929 (SA) s 34R.
The appellant gave evidence denying aspects of the complainant’s account of their relationship.
The Summing Up
It is not necessary to set out the summing up in full. The Trial Judge gave standard directions to assist the jury in its task of assessing witnesses.
It is appropriate and necessary for a trial judge to give assistance to the jury in relation to the assessment of an accused’s evidence. The jury, if nothing is said, might discount the evidence of the accused simply because he is the accused. It is generally appropriate to direct the jury that it should treat the accused’s evidence like they would any other witness.[2] Initially the Trial Judge approached the issue in the traditional manner and instructed the jury to “approach the task in exactly the same way as with any other witness”.
[2] Robinson v The Queen (1991) 180 CLR 531; R v Copeland (1997) 194 LSJS 1.
The Trial Judge reminded the jury of the burden of proof. He then gave the following direction (‘the impugned direction’):
Now, in this context I need to remind you to put emotional responses such as sympathy and prejudice to one side in a trial like this. It is essential that you consider all of the evidence given, including that of the accused, in a dispassionate and objective fashion. To do otherwise would run a risk of promoting injustice. You know from your own experience of life that honest persons of prior good character can tell lies and dishonest persons of prior bad character can tell the truth. Nevertheless, you will take all these matters into account when assessing the credibility of the accused as a witness and in deciding whether his evidence given relevant to the charge was truthful and reliable. You are entitled to take the view that what you heard about the character of the accused requires caution to be exercised in deciding whether or not to accept him as a truthful and credible witness.
(Emphasis added)
The Trial Judge’s remark that “… what you heard about the character of the accused requires caution to be exercised in deciding whether or not to accept him as a truthful and credible witness” was, I assume, a reference to the discreditable conduct matters. It is important to note that the Trial Judge did not refer to the evidence as discreditable conduct evidence; he referred to it as “character” evidence. Further, the Trial Judge did not refer to the evidence in terms of permissible or impermissible use. In effect, the Trial Judge directed the jury that it could use the discreditable conduct evidence when considering whether to accept the evidence of the appellant. The evidence could not be used for that purpose. This was a significant misdirection in the context of the issues at trial.
Later in his summing up, the Trial Judge summarised the discreditable conduct evidence led by the prosecution and set out, correctly, the “limited permissible uses” of that evidence. The Trial Judge referred to this as “conduct” evidence, not “character” evidence. The Trial Judge then proceeded to direct the jury on the issue of the impermissible uses of the evidence.
No complaint is made about those directions. The directions on the permissible and impermissible uses of the discreditable conduct evidence were thorough and appropriate. However, it is important to note that the Trial Judge used different expressions for the same evidence; he described it initially as “character” evidence and later as “conduct” evidence. At the conclusion of the summing up, both counsel complained that the initial direction was erroneous and that a redirection was required. The Trial Judge redirected as follows (‘the redirection’):
… I referred in the course of the summing up to the character of the accused. One of the permissible uses of character does not include impacting on the truthfulness or the credibility of a witness. The only permissible uses of his conduct is as I have directed you and they are the only circumstances in which conduct can be used.
Appellant’s submissions
Counsel for the appellant, Mr Kimber SC, submitted that the Trial Judge’s direction was erroneous, in that he instructed the jury that it could use evidence of discreditable conduct in assessing the appellant’s credibility and reliability as well as the truthfulness of his evidence. In redirecting, the Trial Judge failed to identify the misdirection and instruct the jury that it must be disregarded. A failure to do so was apt to confuse the jury.
Mr Kimber SC further submitted that it was not appropriate to direct that the evidence of the appellant might “require caution to be exercised” as an accused is not a suspect witness, regardless of what may be revealed by discreditable conduct evidence. The redirection made no reference to that aspect of the misdirection. He submitted that these errors were particularly problematic in the appellant’s case as a guilty verdict necessarily involved a rejection of the appellant’s account.
Respondent’s submissions
Mr Petraccaro SC, counsel for the respondent, submitted that an appellate court is entitled to act on the basis that juries follow a trial judge’s directions. He submitted that the redirections should be read in the context of the entire summing up. The redirection properly distilled the permissible and impermissible uses of the discreditable conduct evidence and obviated the risk the jury would use the evidence in its assessment of the appellant’s truthfulness and reliability. Further, he submitted that the absence of a second application for a redirection by trial counsel afforded some practical indication that the Trial Judge had succeeded in his task.
Discussion
There is no one rule that governs the content of a redirection. The starting point of any analysis of a redirection’s content must be to determine the nature of the error and the issue to which it relates. Identification of those matters will determine the error’s significance in the context of the issues at trial and therefore inform what is required by way of redirection. While minor factual errors may be corrected quickly and easily, significant errors of fact or law may require more detailed explanation. I acknowledge that, after the summing up has been completed and counsel are seeking redirection, the temptation is to complete submissions quickly and not keep the jury waiting. However, that temptation should be resisted where significant issues require redirection.
The main issue at trial was the contest between the evidence of the complainant and that of the appellant. Thus, the outcome of the trial turned upon the preference for the complainant’s evidence against that of the appellant. How the jury assessed the evidence of the complainant and the appellant was the most important issue at trial.
It was common ground on appeal that the Trial Judge, during the summing up, misdirected the jury. The impugned direction gave rise to two significant errors, namely:
·that the jury could use evidence of the appellant’s discreditable conduct in assessing the truthfulness, reliability and credibility of the appellant’s evidence; and
·that the jury were entitled to approach the appellant’s evidence with caution, as though he was a suspect witness.
Given the importance of the issue, what was required by way of redirection was a clear instruction that the impugned direction was incorrect and that the jury could not and must not use the evidence in the way the impugned direction suggested. Further the redirection needed to make it clear to the jury that it should not approach the appellant’s evidence with caution. That is, the jury needed to be redirected, as it had been instructed earlier, that it should approach the evidence of the appellant in the same way as every other witness.
The problems with the redirection
As mentioned the Trial Judge redirected as follows:
… I referred in the course of the summing up to the character of the accused. One of the permissible uses of character does not include impacting on the truthfulness or the credibility of a witness. The only permissible uses of his conduct is as I have directed you and they are the only circumstances in which conduct can be used.
(Emphasis added)
The Trial Judge did not inform the jury that the impugned direction about the use of the character evidence was wrong. In the circumstances, such a direction was a necessary step. Mr Petraccaro SC submitted that the Trial Judge had “impliedly” told the jury that his earlier direction was wrong. Perhaps that is so, although whether that inference can be drawn is far from clear. In any event the issue involved was so important that a redirection by implication was not sufficient. The Trial Judge needed to clearly instruct the jury that his earlier direction was simply wrong, and as the prosecutor at trial submitted, that they must not “reason in that way”.
Further, while the impugned direction concerned evidence admitted pursuant to s 34P of the Evidence Act, the Trial Judge did not adopt the language of the section when giving the impugned direction. The Trial Judge referred to the discreditable conduct evidence as relevant to the appellant’s “character”; he did not use the expression “conduct”. Later in the summing up, when dealing with the required directions pursuant to s 34R of the Evidence Act, the Trial Judge referred to the same evidence as “conduct” evidence. To use different labels for the same evidence was unfortunate. “Character” and “conduct” are not synonymous. The mixing of the terms “character” and “conduct” when describing the same evidence was apt to confuse the jury. The Trial Judge should have described the evidence consistently. Whether the jurors understood that the reference to “character” and “conduct” were references to the same evidence is unknown. The risk of confusion remained after the redirection.
The redirection also refers to the “permissible uses of character”. However, as mentioned, the impugned direction was not couched in terms of the “permissible uses” of the evidence. The phrase “permissible use” was used only in relation to the direction on “conduct” evidence. The use of this phrase in the redirection may have led the jury to understand the redirection to be a qualification on the “conduct” direction of the summing up, rather than a correction of the impugned “character” direction.
Finally, the redirection made no reference to the Trial Judge’s instruction that the jury were entitled to approach the appellant’s evidence “with caution”. Thus, the jury may have been left with the impression that the appellant was inherently untrustworthy and belonged in a category of suspect witnesses. Further, by the impugned direction, the Trial Judge instructed the jury that it was entitled to use the appellant’s prior “character” in its assessment of the appellant’s truthfulness, reliability and credibility. However, the redirection referred only to the appellant’s “truthfulness” and “credibility”. The absence of a reference to reliability was an unfortunate omission.

There is an inherent risk that the jury may discount an accused’s evidence because of his or her position as the accused. The judge must take care to direct the jury in a way which does not erode the accused’s presumption of innocence.[3] This is particularly important when the accused gives evidence and the outcome of the trial depends upon the jury accepting beyond reasonable doubt the evidence of a complainant over the evidence of the accused. In Robinson v The Queen, the High Court considered a direction to the jury that the appellant had the “greatest interest of all the witnesses in the outcome of the case”.[4] The Court stated:[5]
If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a "suspect witness" in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as "suspect witnesses", that is, as witnesses whose evidence is to be accepted only after the most careful scrutiny.
(Footnotes omitted)
Where an error is made in the summing up, the judge must redirect in a clear way to remove the risk of a miscarriage of justice.
[3]    See R v Copeland (1997) 194 LSJS 1.
[4]    Robinson v The Queen (1991) 180 CLR 531.
[5]    Robinson v The Queen (1991) 180 CLR 531 at 535.
Conclusion
Unfortunately, the Trial Judge’s directions, in relation to the use that could be made of the discreditable conduct evidence, were wrong and confusing. Further the impugned direction was inconsistent with the earlier direction to treat the evidence of the appellant in the same way as any other witness. The issue to which those matters related was the most important issue at trial.
The redirection needed to inform the jury of the error and that the impugned direction was to be totally disregarded. It was necessary for the Trial Judge to explain how the mistake affected the other aspects of the summing up. This needed to be done in clear and unambiguous terms. The Trial Judge failed to do so.
In my view, the redirection failed to remove the risk of a miscarriage of justice.
I would allow the appeal. The matter should be remitted for trial in the District Court.