Manousakis v The King

[2024] SASCA 137

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

MANOUSAKIS v THE KING

[2024] SASCA 137

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

5 December 2024

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

The appellant appeals his convictions for two counts of unlawful sexual intercourse with a complainant of 13 years, contrary to s 49 of the Criminal Law Consolidation Act 1935 (SA), following a trial before a jury in the District Court.

The offending was alleged to have happened when the complainant and a friend came to the appellant’s home and spent the night with the appellant and his girlfriend.  They consumed alcohol and marijuana.

The prosecutor opened the case for the jury on the basis that, around a month later, the appellant’s now former girlfriend confronted him with the allegations and he responded by asking that, if police asked her, she should say that they were up all night having sex and watching “Family Guy” on television.  This was described by the prosecutor in his opening to the jury as a “false alibi”.

The appellant’s former girlfriend gave evidence to that effect, telling the jury that what she was asked to say was not true.  She did not mention the police in her evidence.

There was some confusion and disagreement about the proper use of this evidence.  The prosecution disclaimed using the evidence as evidence evincing a “consciousness of guilt”.  The prosecution submitted to the trial judge that it was evidence relevant to the appellant’s opportunity to commit the offending. However in his final address, the prosecutor invited the jury to adopt consciousness of guilt reasoning. 

In his summing-up, the trial judge did not address the prosecution closing and directed the jury that the evidence was only relevant to opportunity, and it could not be used as evidence probative of the appellant’s guilt.  Unorthodox directions of the kind discussed in Edwards v The Queen (1993) 178 CLR 193 were given regarding the use of the evidence as evidence of opportunity. The jury was directed that they could take the evidence into account as a circumstantial piece of evidence along with all of the other evidence in determining whether the Crown proved its case beyond reasonable doubt.

Defence counsel had earlier repeatedly requested a mistrial but took no objection to the prosecution closing and sought no further directions.

HELD (the Court) allowing the appeal, setting aside the convictions and ordering a retrial:

1.The evidence was not relevant to opportunity and was only relevant to whether the appellant had requested his former girlfriend to lie out of a consciousness of guilt.

2.Whilst the trial judge’s directions that the evidence about the false alibi conversation only went to opportunity, and could not be used as evidence of guilt, appeared favourable, the jury were put in a difficult position.

3.The evidence was stark and compelling and…