Gray v The Queen

Case [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

  1. KOURAKIS CJ:  I joined in the orders of the Court made on 13 February 2020 for the reasons given by Lovell J.

  2. 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

  3. 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.

  4. 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

  5. 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…

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Gray v The Queen [2020] SASCFC 46
Case
[2020] SASCFC 46
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CaseChat Overview and Summary

The appeal concerned a conviction for rape in the District Court of South Australia. The appellant, Gray, was found guilty by a jury. He appealed this verdict on multiple grounds, including an alleged error by the Trial Judge in directing the jury that discreditable conduct evidence could be used to assess the truthfulness of the appellant's evidence, and a failure to adequately correct this misdirection.

The central legal issue before the appellate court was whether the Trial Judge's directions to the jury regarding the use of discreditable conduct evidence in assessing the appellant's testimony constituted a misdirection that led to a miscarriage of justice. This involved considering the proper treatment of an accused person's evidence, particularly when it conflicts with that of a complainant, and the necessity for clear and effective redirection when an error in summing up occurs.

The Court reasoned that the Trial Judge's directions were both wrong and confusing, particularly in allowing the jury to use discreditable conduct evidence to assess the appellant's truthfulness. This was inconsistent with the fundamental principle that an accused is presumed innocent and their evidence should be treated like any other witness, unless specific circumstances warrant closer scrutiny, such as with accomplices or complainants in sexual cases. The Court relied on the High Court's decision in *Robinson v The Queen*, which held that directing a jury to scrutinise an accused's evidence more carefully simply because they are the accused is unfair and can lead to a miscarriage of justice. The appellate court found that the subsequent redirection by the Trial Judge was insufficient to remove the risk of prejudice, failing to clearly inform the jury of the error and its implications.

Consequently, the appeal was allowed, the conviction was quashed, and a new trial was ordered in the District Court of South Australia.

Orders

Orders of the court

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Background

Background to the litigation

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 EvidenceCharged 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.

Evidence

Evidence Before The Court

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 EvidenceCharged 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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