R v Brady
[2014] SASCFC 7
•11 February 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRADY
[2014] SASCFC 7
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice David and The Honourable Justice Stanley)
11 February 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION
The defendant and appellant, Bruce Dale Brady, was convicted by verdicts of a jury of six counts of the offence of Rape upon a female complainant. The appellant appeals against the convictions. The prosecution case depended solely upon the evidence of the complainant. The appellant gave evidence at trial and said that the complainant had engaged in the conduct that gave rise to the charges consensually. The issue before the jury was a question of consent in a situation where both parties gave diametrically opposite testimony on that issue.
The appellant originally advanced multiple grounds of appeal, some of which were not pursued. At the hearing, the appellant argued three grounds upon which permission had been granted and four fresh grounds upon which permission was sought.
Ground 20 - Whether a miscarriage of justice occurred as a result of the prosecutor’s unfair conduct during the trial and, more particularly, her cross-examination of the defendant.
Held per David J (Sulan and Stanley JJ concurring): Permission to appeal granted and ground of appeal dismissed. The prosecution’s cross-examination of the defendant was, in the circumstances, inappropriate because it has the potential, in some cases, to focus the jury’s attention not on whether the charge(s) have been proved beyond reasonable doubt, but whether the defence have established that a prosecution witness was lying. However, in the circumstances of this case, there was no such danger that the conduct of the prosecutor could have caused the jury to reason in the impugned way and, accordingly, it did not amount to any unfairness or miscarriage of justice.
Ground 21 - Whether a miscarriage of justice occurred as a result of the trial Judge’s failure to direct the jury as to circumstances in which it was, and was not, permissible for them to infer that the defendant was lying from his counsel’s failure to cross-examine the complainant about certain matters.
Held per David J (Sulan and Stanley JJ concurring): Permission to appeal granted and ground of appeal dismissed. In circumstances where the ‘certain matters’ referred to by the appellant in the ground of appeal were peripheral and no objection was taken at trial to the prosecutor’s cross-examination of the appellant in respect of those matters, there was no unfairness.
Ground 22 - Whether a miscarriage of justice occurred as a result of the trial Judge’s direction that any implication the jury drew from their finding on one count could be used to decide their verdicts on the other counts.
Held per David J (Stanley J concurring): Permission to appeal refused. In a series of events that take place over a number of hours between the same two people, which give rise to multiple counts of an offence, evidence relating to one count will be clearly matters that the jury could take into account in considering another. The difference between the evidence that leads to a finding on one count and the finding itself is, in the context of this case, academic.
Held per Sulan J: Permission to appeal granted and ground of appeal dismissed. The impugned direction was unhelpful and did not assist the jury in how to use the evidence in respect of each count when considering the other counts. However, the direction did not undermine the previous direction to give separate consideration to each count and did not invite the jury to engage in impermissible propensity reasoning.
Ground 19 – Whether the trial was unfair by virtue of the prosecution failing to put its case to the defendant on the issues of consent and recklessness.
Held per David J (Sulan and Stanley JJ concurring): No unfairness was occasioned by the prosecutor’s purported failure to cross-examine the appellant on the issues of consent and recklessness. All of the evidence and addresses make it clear that the issue was whether it had been proved beyond reasonable doubt that the complainant was telling the truth and that the appellant was not.
Ground 23 – Whether the trial Judge erred by leaving to the jury the prosecution alternative case that the appellant was guilty of rape because of his reckless indifference to consent and, having left that case to the jury, further erred by failing to direct the jury as to how the legal test of reckless indifference applied to the evidence.
Held per David J (Sulan and Stanley JJ concurring): Permission to appeal refused and ground of appeal dismissed. It was not necessary for the trial Judge to direct the jury as to reckless indifference because that was not how the case was either presented or defended.
Ground 1 – Whether the trial Judge’s directions to the jury about distress were wrong in law and contrary to section 34M(4) of the Evidence Act 1929, because they conflated the use of the evidence of distress to assess the ‘reliability’ of the complainant’s evidence.
Held per David J (Sulan and Stanley JJ concurring): Ground of appeal dismissed. The trial Judge’s erroneous use of the word ‘reliability’ in his directions to the jury about distress could not have made any material difference to the sense of the direction the trial Judge was giving and would have been taken by the jury to relate only to an assessment of the complainant’s truthfulness.
Ground 2 – Whether the trial Judge erred in directing the jury that where a victim complains at the first reasonable opportunity, ‘it may afford some ground for accepting that [he/she] is speaking the truth.’
Held per David J (Sulan and Stanley JJ concurring): Ground of appeal dismissed. If one looks at the whole of the direction on the recent complaint, it is clear that the direction is unimpeachable. The jury were told that the complaint was not to be used as evidence of the truth of what was said but rather that it was evidence of consistency, which goes to the question of whether the complainant was telling the truth when giving evidence in Court.
Evidence Act 1929 (SA) 34M(4), 34M(5), referred to.
R v Leak SASR 172; R v Manunta (1990) 54 SASR 17; R v J, JA 105 SASR 563; R v PMT (2003) 8 VR 50; R v B, P [2006] SASC 229; R v Markuleski (2001) 52 NSWLR 82; Jones v The Queen (1997) 191 CLR 439; R v KWG [2000] SASC 398; R v Liddy [2002] SASC 19; Longman v The Queen (1989) 168 CLR 79, considered.
R v BRADY
[2014] SASCFC 7Court of Criminal Appeal: Sulan, David and Stanley JJ
SULAN J: I have had the advantage of reading the reasons of David J. The relevant facts and contentions are set out in his reasons. I agree that the appeal should be dismissed and permission to appeal on ground 23 refused. I would grant permission on ground 22 but dismiss that ground of appeal. There are some further observations I wish to make.
Ground 22
The trial Judge directed the jury on the need to consider each count separately in the following terms:
In considering your verdicts you must consider each of the charged acts separately, charged offences separately. You must consider them by reference to the evidence which relates to each count. Both the accused and the prosecution are entitled to a separate consideration by you of each of the crimes charged. It would be quite wrong for you to find that simply because the accused has been found guilty or not guilty of one count, that the same verdict would necessarily be appropriate for another count.
You must ask yourself, as to each count separately, ‘Am I satisfied beyond reasonable doubt by the evidence presented in relation to this charge that the accused is guilty of this crime?’ If the answer is ‘Yes’, you will find him guilty. If the answer is ‘No’, you will acquit him.
The prosecution, of course, puts to you that the accused is guilty of all six counts, and the defence puts to you that he is not guilty of any. Although you must give separate consideration to each count, that does not prevent you from considering what implication the finding on one count has in relation to another count. For example, if you were to find the accused guilty or to find him not guilty of count 1, what implications does that have for the other counts?
[Emphasis is mine.]
Counsel for the defendant submits that a miscarriage of justice occurred as a result of the emboldened direction contained in the above passage. It is submitted that the direction placed no limit on the use the jury could make of a conviction on one count in deciding guilt on the other five counts. Three bases are put forward in support of the contention that a miscarriage of justice resulted. It is submitted that the direction: diluted the separate consideration direction and blurred the distinction between the individual counts; created the danger of the jury improperly convicting on the basis that having found the complainant credible and reliable on one count, it followed that they should also do so in deciding the other counts; and invited the jury to engage in propensity reasoning to the unfair prejudice of the defendant.[1]
[1] It is to be noted that these proceedings were commenced before the introduction of s 34P of the Evidence Act 1929 (SA).
In support of these contentions, the appellant relies on observations of the Victorian Court of Appeal in R v PMT[2] which were endorsed by this Court in R v B, P.[3] The decisions declined to follow the NSW Court of Appeal in R v Markuleski,[4] which held that in cases where multiple counts of sexual offences are alleged to have been committed against one complainant, the jury should be directed that any doubt they may have with respect to one or more aspects of the complainant's evidence ought to be considered when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence in respect of all counts.
[2] (2003) 8 VR 50.
[3] [2006] SASC 229.
[4] R v Markuleski (2001) 52 NSWLR 82. See also, Jones v The Queen (1997) 191 CLR 439; R v KWG [2000] SASC 398.
The appellant contends that the direction given by the Judge in the present case was analogous to a Markuleski direction. Accordingly, the dangers of giving the direction, as identified in R v PMT and R v B, P, operated to create a miscarriage of justice in the present case.
In R v PMT,[5] it was argued that the circumstances of the case required the trial judge to give a Markuleski direction. The Court held that it was unlikely that a jury given a separate consideration direction would be entirely uninfluenced by the impressions they derived from the evidence of a witness taken as a whole. The Court held that it was doubtful that such a natural tendency needs judicial encouragement in the form of a Markuleski direction. Further, the proposed direction was likely to promote propensity reasoning and produce confusion rather than assist a jury to properly evaluate the evidence. Buchanan JA observed: [6]
The direction given in the New South Wales cases may be thought to undermine the separate consideration direction and swing a delicate balance towards propensity reasoning. The area in which the proposed direction is to operate is complex. As the Crown is obliged to establish guilt on each count beyond reasonable doubt, acquittal on particular counts among a number of counts all dependent on the evidence of the complainant may be due to doubt produced by factors affecting not simply the credibility of the complainant but rather the reliability of his or her evidence. If a warning of the kind required by R. v. Markuleski is to be given, presumably it should be qualified by directing the jury that a reasonable doubt as to the veracity of a complainant’s evidence on one count caused by the manner in which the complainant has given evidence should be taken into account in assessing his or her evidence on another count, but a reasonable doubt on one count produced by signs of possibly faulty or inaccurate recollection or by the existence of a circumstance rendering the commission of the offence less likely does not affect the complainant’s truthfulness in respect of other counts. As a matter of logic, the proposed direction should not be limited to potentially casting doubt upon the evidence of a complainant. The rationale for the direction would require a jury to take into account their view that the complainant was truthful in his or her evidence as to one count in evaluating his or her evidence on other counts. Further, it would seem to follow that a jury should also be directed that, if they form a view as to the truthfulness of the evidence of the accused in relation to one or more counts, they are to take that into account in assessing the truthfulness of the accused’s evidence generally.
I think it unlikely that a jury given a separate consideration direction will be entirely uninfluenced by the impressions they derive from the evidence of a witness taken as a whole; I doubt that such a natural tendency needs judicial encouragement in the form of a Markuleski direction. Further, I am of the opinion that the proposed direction is likely to promote propensity reasoning and produce confusion rather than assist a jury to properly evaluate the evidence.
[5] (2003) 8 VR 50.
[6] R v PMT (2003) 8 VR 50, [29]-[32].
Similarly, Charles JA said:[7]
If a jury has been left with a reasonable doubt as to one count, either on the ground that the complainant may be lying or has exaggerated, I doubt very much that they would, as Buchanan, J.A. has put it, need judicial encouragement to bear that factor in mind in considering a second count. On the other hand, the giving of the Markuleski direction may lead a jury to convict improperly on the basis that, having found the complainant inherently credible on one count, they may think it follows that they should also do so in considering another. The jury may well reason that if they are permitted to diminish the complainant’s credibility on this basis, why then cannot they also enhance it by similar reasoning? The potential for the proposed direction to promote propensity reasoning tends, in my view, against the giving of any such direction.
[7] R v PMT (2003) 8 VR 50, [5].
In R v B, P,[8] the defendant was charged with two counts of unlawful sexual intercourse and two counts of indecent assault said to have been committed upon the same complainant. In respect of the first count, he was convicted of an alternative verdict of indecent assault. He was convicted of the other three charges, as presented. It was contended that the jury’s implicit rejection of at least part of the complainant's evidence on the first count should have led to a refusal to be satisfied of her evidence as to the other counts. Allied to that submission was a contention that the Judge should have warned the jury that a failure to achieve a state of satisfaction in respect of any one count should be carried into their consideration of other counts. In concluding that such a direction was not required, Doyle CJ observed:[9]
The Judge had told the jury, in the usual terms, to consider the evidence on each count separately. He told the jury that they could accept part of what a witness said, and reject another part. I would expect the jury to realise that a doubt about the reliability of the complainant's evidence on a particular count could be taken into account when considering other counts. In the circumstances of the case, the Judge was not required to direct the jury to that effect, let alone direct the jury that a doubt about reliability on one count must give rise to a doubt about reliability on another count. The present case was not one of those cases that required the trial Judge, in order to give appropriate directions to assist the jury, to give such a direction. On that point it suffices to refer again to what Mullighan J said in Liddy in particular at [190]-[193]. There is good reason not to direct the jury unnecessarily along these lines, because there is a danger of suggesting to the jury that a finding of not guilty on one count should or must lead to the same result on other counts.
[8] [2006] SASC 229.
[9] R v B, P [2006] SASC 229, [6].
In R v Liddy,[10] the Court observed that there was no authority for the proposition that a jury should be instructed that if they are not satisfied beyond reasonable doubt that a complainant has been truthful in relation to one count, they must acquit the accused on all counts. The Court emphasised that the only applicable general principle is that the trial judge is obliged to give the jury directions appropriate to the circumstances of the case. Mullighan J cited the following passages from Longman v The Queen:[11]
“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.”
Reference could also be made to Brennan, Dawson & Toohey JJ in Longman at 86:
“Apart from the special rule, the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case: Bromley v The Queen (1986) 161 CLR 315 at 319, 323-325; Carr v The Queen (1988) 165 CLR 314 at 330.”
[10] [2002] SASC 19.
[11] (1989) 168 CLR 79, 95.
In my view, the direction given in the present case is unhelpful. It does not assist the jury in how to use evidence in respect of each count when considering other counts. If such a direction was to be given (although not required in every case), the jury should have been directed that if they concluded that the complainant gave honest evidence in respect of one count that may assist them when considering her honesty generally in respect of other counts. However, if they concluded that she was dishonest in respect of one count it does not follow that she was dishonest in respect of other counts, but it is relevant. If the jury considered her evidence was unreliable in respect of one count then that is a matter to which they can have regard when considering the reliability of her evidence in respect of the other counts.
Nonetheless, I am of the view that the impugned direction given by the Judge did not cause a miscarriage of justice. The potential dangers of giving a Markuleski direction discussed in R v PMT and by this Court in R v B, P, are of no moment in the present case. The evidence of the complainant and that of the defendant were diametrically opposed. There was no issue at trial as to the reliability or inaccuracy of the complainant’s evidence. A finding by the jury that the complainant was truthful on one count could carry through into its consideration of her truthfulness in respect of the other counts. This reasoning process is undoubtedly permissible. I consider that in the present case no specific direction was required, however, the direction that was given did not undermine the earlier separate counts direction and did not invite the jury to reason impermissibly that because they found the defendant guilty on one count, that he was the type of person likely to have committed the other counts.
DAVID J: This is an appeal against conviction. The appellant, Bruce Dale Brady, was charged with six counts of rape upon a female complainant (“C”). The appellant was convicted by verdicts of a jury of all six charges following a trial in the District Court. The events which were the subject of the charges took place over a period of some hours at the home of C. At trial, the issue was not whether the acts of intercourse which were the subject of the charges took place, but whether it had been proved that C did not consent.
The appellant appeals against his convictions on all counts. The grounds of appeal are varied and deal basically with certain directions given by the trial Judge in his summing up to the jury and also the nature of the cross-examination of the appellant at trial.
The appellant now argues that there was a miscarriage of justice.
Trial
The prosecution case depended solely upon the evidence of C. She told the Court that in December 2007 she read an advertisement in a local newspaper which was placed there by the appellant and in which he sought to meet someone to establish a friendship and romance. C responded to that advertisement and, following a telephone conversation, agreed to meet the appellant the following day at Glenelg. The appellant brought C chocolates and a card. They walked along the marina and ate dinner together. At some stage, they decided to return to C’s unit where they engaged in sexual intercourse. Between December 2007 and April 2008, they met on several occasions, some of which were pleasant and three of which involved further sexual intercourse. There were other occasions on which they communicated and met which were attended by episodes of unpleasantness for various reasons.
C’s evidence then moved to the evening of 26 April and morning of 27 April 2008, which was the Anzac Day long weekend. She said that on Saturday 26 April 2008, she and the appellant spent the day visiting friends and taking part in various joint activities. She was uncertain as to the future of their relationship at that time as a result of the appellant having earlier admitted to her that he had sexual relations with another woman during the time they were dating. At around 11:30 pm that evening, the appellant attended at C’s home. Upon his arrival, he went to the back room of the house where he had a coffee and a cigarette. She occupied herself with other duties. The appellant brought a number of pornographic DVDs with him to C’s house. They were contained in a duffle bag. After some time, C acquiesced to watching one of the videos with the appellant. C sat on the floor in the lounge room with her back up against the sofa. The appellant came into the room and sat directly behind her, with his legs either side of her. He asked to see her hands. When she showed him, he tied them together using the cord from a dressing gown. She was unhappy with having her hands bound and asked him to untie her. She told him that she needed to use the bathroom. The appellant forcibly dragged her to the bathroom and pushed her onto the toilet, holding her there with his arm on her shoulder. When C started urinating, the appellant spread her legs apart and cupped his hands beneath her urine stream and drank the urine from his hands.
The appellant dragged C back into the lounge room and pushed her head into the corner of the sofa. Her hands were still bound. He then wrapped the tie from C’s pink dressing-gown around her torso and stuffed a scarf into her mouth. She said that he was rambling, making derogatory comments and telling C that he was going to give her a near death experience and test her strength as a woman. While she was on her knees with her head pushed in the corner of the sofa, the appellant took a pair of scissors and cut the crutch out of her tracksuit pants and underwear. He proceeded to engage in a series of acts penetrating her vagina and anus with his penis and a number of different sexual implements that he brought with him to the house. The sexual acts were punctuated by short breaks during which the appellant would smoke a cigarette.
Subsequently, the appellant untied C and removed the scarf from her mouth. All of C’s clothes had been removed and were lying on the floor of the lounge room, cut and torn. There was a discussion about replacing her damaged clothing. When he left the lounge room, C took a pair of scissors and removed the labels from the clothing that was dumped on the floor. She wrote down the details of the clothing on a piece of paper and put the labels and the paper in a filing cabinet. She said that she did this believing that if she was killed, her parents would discover the items and realise what had happened to her. A further act of sexual penetration with a vibrator occurred on the sofa and the appellant forced C to perform fellatio on him. She described feeling the prickle of his shaved pubic hair.
Later that evening and into the early hours of the following morning, C went about tidying the house and putting the washing machine on. The appellant followed her around the house and spoke to her about love and how a woman should act towards a man. At one point, the appellant invited C to telephone the police but she was too scared, fearing he had already cut the phone line. He made her wash the sexual implements he used on her. There was a second occasion on which he followed her into the toilet and drank her urine. The final act of rape occurred on the morning of Sunday 27 April. The appellant shaved C’s pubic hair and then inserted his fingers into her vagina. He then left C’s house. He took with him her torn clothing and the sexual implements that he had brought to the house. C then called a friend, GB, who came to the house and took C to the police station and then to the hospital.
The six counts reflected by her evidence were:
1Penile vaginal sexual intercourse.
2Insertion of an object into C’s vagina.
3Insertion of an object in C’s anus.
4Causing C to perform an act of fellatio.
5Penile vaginal sexual intercourse.
6Insertion of fingers into C’s vagina which occurred on the morning of 27 April after the appellant had shaved her pubic hair.
GB was called and gave evidence of the complaint made by C and also evidence of C’s distressed condition. The evidence of what was said was by way of complaint pursuant to s 34M(5) of the Evidence Act 1929 (SA).
The appellant gave evidence at trial. He said that C had engaged in most of the activities which she described as happening on the Anzac Day weekend consensually. He said in evidence that when they first had sexual intercourse they both engaged in the same types of activities as they had on the Anzac Day weekend. He said further in evidence that prior to the Anzac Day weekend there were discussions between them about being tied up during sexual intercourse and that C expressed an interest in that activity and they sent text messages to each other to that effect.
The appellant’s evidence was that the events of a sexual nature on the Anzac Day weekend were all consensual. He said that C consented to being tied up, that there was no pressure on her to do so, and that the two were laughing at the time. He said that he tied her hands in a loose bow. He tried to place a scarf in her mouth but she refused and he did not persist. According to the appellant’s evidence, C only became upset when he began cutting and tearing her clothes which he said she initially consented to, but later became upset about. He apologised to her several times and they spoke for a couple of hours. They then engaged in further consensual sexual acts and he said that, at one point, he stroked her vagina while she was urinating but did not drink her urine as alleged by C.
The appellant’s clear evidence was that all of the acts that took place were consensual. On one occasion, on the morning of 27 April 2008, C said “we are going to F all day”.[12]
[12] T362.
The issue before the jury was a question of consent in a situation where both parties gave diametrically opposite testimony on that issue.
Appeal
There were originally a number of grounds of appeal, some of which have not been pursued. The appellant now argues three grounds upon which permission has been granted, and four fresh grounds upon which permission is sought. I will deal with each ground in the order argued by counsel on appeal and I will refer to their original numbering.
Grounds 20 and 21
Permission is sought on both grounds 20 and 21 and it is convenient to deal with them together. They are:
Ground 20
A miscarriage of justice occurred as a result of the prosecutor’s unfair conduct during the trial:
20.1Repeatedly cross-examining the appellant about whether the complainant was lying.
20.2Unfairly cross-examining the appellant on the basis that he had invented his evidence about certain matters because his counsel had failed to cross-examine the complainant about those matters.
20.3Unfairly putting to the appellant in cross-examination that he did not have pubic hair at the time of the offences and that he had now invented his evidence to the contrary.
Ground 21
A miscarriage of justice occurred as a result of the learned trial Judge’s failure to give any directions to the jury about the circumstances in which it was, and was not, permissible for them to draw the inference that the appellant was lying and had invented his evidence from his counsel’s failure to cross-examine the complainant about certain matters.
Mr Henchliffe, counsel for the appellant, argues that the appellant was unfairly cross-examined by the prosecutor on the topic of whether C was lying in her evidence. Mr Henchliffe argues that such cross-examination is unfair and led to a miscarriage of justice. I set out the relevant passage of the impugned cross‑examination:[13]
[13] T572.26-32; 573.5-20; 574.12-28.
Q.So you say that [C] was lying when she says that up until 26 April, you had only had sexual intercourse in the missionary position on her bed.
A.Yes, she is lying. Absolutely.
Q.And is she lying when she came to court and described that intercourse as brief but loving.
A.Yes, she is lying about that. Absolutely lying.
…
Q.Is [C] lying when she said that you stroked her hair and looked into her eyes while you had intercourse with her.
A.That may have happened. I am a bit of a romantic.
Q.Was she lying when she says there was never any foreplay other than kissing.
A.There was bits and pieces of foreplay along the lines.
Q.That you, in fact, never touched her on her genitals prior to having intercourse with her.
A.No that's not true. No. Absolutely not.
Q.That prior to 26 April, she had never performed oral sex on you.
A.That's a lie too. We'd had oral sex on previous occasions.
Q.And that you had never done that to her.
A.That's a lie.
…
Q.There's no photos of that kind at all in her drawer; is that right.
A. That's not true.
Q.She's lying about that.
A.No, that's not true.
Q.She's lying about that.
A.Yes, she is lying. Absolutely.
Q.And she lied in this court when she said she never had sex outdoors with you.
A.Yes, she is lying. She was almost caught out under examination by my lawyer. She originally said she's never sat outside with me and, in the end, she was sitting outside with me. She admitted that. I heard a lot of lies come from [C] in this courtroom, lots.
Q.She is lying when she says that there was no sex in the top room prior to the 26 April; is that what you say.
A.Yes, she is lying, yes.
Mr Henchliffe argues that cross-examination of this nature is unfair because it forces an accused person in cross-examination to conjecture improperly as to why a prosecution witness is telling a particular story. He further argues that it would have the effect of focusing the jury’s attention on not whether the charge had been proved beyond reasonable doubt, but whether the defence had established that a prosecution witness was lying. In support of his argument he referred to the decision of R v Leak,[14] where the Court (Bray CJ, Hogarth and Walters JJ) said:[15]
In our view a witness ought not to be asked whether another witness is telling lies or has invented something. Any witness, of course, can be asked if what another witness has said is true. He can be asked if he knows of any reason why the other witness should be hostile to him or should tell a false story about him. But if he says that what the other witness has said is not true, he should not be asked to enter into that witness’s mind and say whether he thinks the inaccuracy is due to invention, malice, mistake or any other cause. To do so is to ask him for opinion evidence and in our view the normal objections to that type of evidence apply. It is for the jury to decide which witness is telling the truth and how far what they think to be an inaccuracy on the part of any witness is deliberate or otherwise and what effect such inaccuracy has on the rest of the witness’s testimony. No attempt should be made by the cross-examiner to drive any witness, least of all the accused, into saying that any other witness, least of all a detective, is a liar.
[14] [1969] SASR 172.
[15] [1969] SASR 173, 173-174.
In the present case, the prosecutor should not have cross-examined in the way in which she did. It is perfectly proper that the prosecutor clearly clarified in cross-examination what the defence case was, and clearly clarified the areas of disagreement. The questions should have been couched in terms of whether C’s evidence was untrue or plainly wrong. In some cases, to cross-examine in the way the prosecutor did may lead a jury to reason in the impugned way and lead to a miscarriage of justice.
However, in the present case, I am of the view that there was no such danger that this could have occurred. The dispute between the parties was clearly drawn and the issue was clearly that one party on the salient facts was telling the truth and the other was not. There is no suggestion that the trial Judge did not clearly direct the jury on the onus of proof so that they could be lured into thinking that the appellant was required to give an explanation as to why C was lying, or that the onus of proof was in any way reversed. It is also to be noted that there was no objection to that part of the cross-examination at trial and there was no application to the trial Judge to address the jury on that topic. In my view, it did nothing more than emphasise clearly the main issue at trial. Having said that, it is not a course which should be followed. However, it did not amount to any unfairness or miscarriage of justice.
There are further aspects of the appellant’s argument in relation to this ground of appeal. In part of the cross-examination of the appellant, the prosecutor put that on certain topics the appellant had made up evidence because his counsel had failed to cross-examine C on those matters. An example of that was in relation to count 6. The appellant gave evidence that he had pubic hair on the occasion in question. C had given evidence that he was shaved in that area. In cross-examination, the appellant was criticised by the prosecutor because it was not put to C when she was cross-examined that in fact the appellant had pubic hair. This was put to the appellant on that topic:[16]
[16] T580.4-30.
Q.[C’s] evidence was that when she was forced to perform fellatio upon you, your body pushed up against her face, and her lips were in contact with your shaved pubic area. Do you remember that evidence given.
A.That's all not true.
Q.But do you remember that that evidence was given.
A.Not quite, no. But that's not true because I had pubic hair then.
Q. Do you disagree with me that that evidence was given in this courtroom.
A.I don't remember, I can't recall at the moment that evidence being given. I didn't - I can't quite remember her saying, I can't quite remember her saying that in evidence.
Q.You now say that you did have pubic hair at that time, do you.
A.That's right.
Q.Well, it wasn't suggested to [C] that she was wrong about that when she said that you had shaved pubic hair at the time.
A.I'm denying all - everything you're saying as being untrue. She was never forced to give me oral sex in the first place in the beginning anyway. I'm also saying at that part of my body, I had pubic hair. There was forensic evidence taken from me at that point of time before I was taken into remand. I'm sure they would have documentation of what state my body was in.
There are further examples of that about which Mr Henchliffe complains. I set them out:
1The failure of the appellant’s counsel to put to C that the nude pictures of C and another man that C had shown to the appellant had been on a single page:[17]
[17] T408.28 – 409.18.
Q. You said that those photos were on a single printed off page, did you.
A. Yes, a single sheet, and there was numerous ones on one sheet.
Q. Numerous; I thought you said there were two photos.
A. No, there was more than two photos. There probably would have been, I don't know, probably about eight on one sheet. I'm not sure how they did it.
Q. Eight photos of who.
A. [C] and another male.
Q. Did she go through each one of them and say who was who.
A. No, she just gave me a look.
Q. You say they are all on one sheet, do you.
A. Yes, that's right.
Q. You saw the exhibit in this courtroom that was Exhibit P6 that had these photographs on it.
A. Yes.
Q. And it was on one sheet.
A. Yes, there was more than that on one sheet, though.
Q. That was more than just two photos on the one sheet.
A. That's right. The photos were much smaller.
Q. You're just making that up, aren't you.
A. Absolutely not. I swear to God those photos exist.
Q. You saw that exhibit in court and thought 'I'm going to match my evidence to the prosecution case', didn't you.
A. No, absolutely not. Absolutely not. I told my solicitor, I told my lawyers about this a long time ago and had put it in my statement a long time ago before we got into court here.
2The failure of the appellant’s counsel to put in cross-examination that C suggested to the appellant that he had brought a friend called Rod around to her house to rape her two weeks before the offences were allegedly committed. In relation to that suggestion by C, the appellant was cross-examined thus:[18]
[18] T569.4 – 569.16.
Q. She never said anything like that to you.
A. She did so. We can make a phone call or we can bring the person in that I'd taken around there. I had told this to him. He was completely sober when this was mentioned to him. He couldn't believe it himself.
Q. That wasn't put to [C] when she gave her evidence, was it.
A. No, I don't believe so.
Q. And she was cross-examined. It wasn't asked of her that she had a conversation with you, after 29 March, in which she alleged you had -
A. No, I'd said something to my solicitors and it had been put down in my statement, been mentioned ages ago.
3The failure of the appellant’s counsel to put to C in cross-examination a description of the two sex toys the appellant said she had shown him:[19]
[19] T573.21 – 574.1.
Q. And that prior to 26 April, you had never used sex toys in the course of your sexual activities.
A. [C] also said that sex toys disgusted her and she thought they were disgusting, but even [C] admitted in the court she owns at least one vibrator. How disgusting does she think they are?
Q. You claim that you saw two of them.
A. That's right.
Q. Yes. You've not described those.
A. They were - I can't quite remember.
Q. I'm not asking you to, I'm saying you have not described those, isn't that right.
A. No, that's right. Because I haven't been asked to.
Q. When it was put to [C] that she owned two sex toys it wasn't put to her specifically what they looked like, was it.
A. No.
Q. No. And that's because you've never seen sex toys.
A. I have seen her sex toys.
The Judge gave no directions to the jury on any of that cross‑examination. That fact is also a matter of complaint by the appellant.
Mr Henchliffe argues that cross-examination of that nature was unfair because, on matters as peripheral as those mentioned above, there was no duty for defence counsel to put that to C in cross-examination as distinct from topics of difference which were salient to the charge. Mr Henchliffe argues that a combination of that cross-examination and the lack of direction by the trial Judge about it inferentially invites the jury to draw an inference that the appellant was lying and had invented his evidence because of that lack of cross-examination. In support of his argument, Mr Henchliffe cited the case of R v Manunta,[20] where King CJ said:[21]
It is legitimate, of course, to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial.
His Honour went onto say that the subject matter of the impugned cross-examination did not possess much weight and there was no error.
[20] (1990) 54 SASR 17.
[21] (1990) 54 SASR 17, 23-24.
In the present case, the matters were peripheral. It is also to be noted that there was no objection taken at trial to that questioning and that there was further cross-examination of the appellant in which he said that he told his solicitors about the matters upon which he was cross-examined. The matter was left there and no further attention was paid to the topic from that point onwards. In those circumstances, there was no unfairness.
Nevertheless, it is important for prosecuting counsel to remember the warning given by King CJ in Manunta’s case that the process of reasoning resulting from a breach of the duty required in Browne v Dunn is fraught with peril and should only be resorted to in obvious matters and not on peripheral issues.
Both aspects of this ground of appeal were worth arguing and I therefore grant permission. However, I would dismiss both grounds.
Ground 22
Permission to appeal is sought on ground 22 which provides:
A miscarriage of justice occurred as a result of the learned trial Judge’s direction to the jury that any implication they drew from their finding on one count could be used to decide their verdicts on the other counts.
The trial Judge in summing up said the following:
In considering your verdicts you must consider each of the charged acts separately, charged offences separately. You must consider them by reference to the evidence which relates to each count. Both the accused and the prosecution are entitled to a separate consideration by you of each of the crimes charged. It would be quite wrong for you to find that simply because the accused has been found guilty or not guilty of one count, that the same verdict would necessarily be appropriate for another count.
You must ask yourself, as to each count separately, ‘Am I satisfied beyond reasonable doubt by the evidence presented in relation to this charge that the accused is guilty of this crime?’ If the answer is ‘Yes’, you will find him guilty. If the answer is ‘No’, you will acquit him.
The prosecution, of course, puts to you that the accused is guilty of all six counts, and the defence puts to you that he is not guilty of any. Although you must give separate consideration to each count, that does not prevent you from considering what implication the finding on one count has in relation to another count. For example, if you were to find the accused guilty or to find him not guilty of count 1, what implications does that have for the other counts?
(Emphasis added)
Mr Henchliffe argues that although the first two of the paragraphs cited are undoubtedly correct, the direction in the third paragraph contradicts the directions that the jury should look at each count separately. Mr Henchliffe emphasises that the words “what implication the finding on one count has in relation to another count” could amount to a propensity warning, that once the appellant is found guilty of one count the jury might impermissibly regard him as the type of person who would commit one of the other counts.
If the trial Judge had said that the evidence on one count could be used on other counts, there could be no argument about the correctness of the direction. In the context of this case, I cannot see that it makes any difference that the trial Judge referred to the finding on one count as distinct from the evidence that led to that finding. It is purely a matter of commonsense that in a series of events that took place over a number of hours between the same two people, evidence relating to one count will be clearly a matter that the jury could take into account in considering another. In the context of this case, the difference between the evidence that leads to a finding on one count and the finding itself is academic. There was clearly no confusion.
I would refuse permission to appeal on that ground.
The next two grounds have been argued together and I will deal with them in the same way.
Grounds 19 and 23
Permission has been granted on ground 19 which provides:
That the trial was unfair by virtue of the prosecution failing to put its case to the defendant on the issues of consent and recklessness.
Permission is sought on ground 23 which provides:
The learned trial Judge erred by leaving to the jury the prosecution alternative case that the appellant was guilty of rape because of his reckless indifference to consent, and having left that that case [sic], further erred by failing to direct the jury how the legal test of reckless indifference applied to the evidence.
Mr Henchliffe argues that there was inadequate direction given to that element of the offence of rape which deals with reckless indifference as to whether C was consenting. The trial Judge, in his directions on the elements of the offence, said the following when talking about the appellant’s state of mind:
I turn then to the third element of the offence, which goes to the accused’s state of mind. That is, that the accused knew that the complainant was not consenting or was recklessly indifferent as to whether she was consenting. The accused will be recklessly indifferent if, realising that the complainant might not be consenting, he proceeded to have sexual intercourse with her anyway. Well, in this case, ladies and gentlemen, the prosecution says that on the basis of the evidence you have heard from [C] and the other evidence in the case, the accused must have known full well that she was not consenting to the sexual act performed on her.
Mr Henchliffe argues that as reckless indifference was alluded to, it needed further analysis by the trial Judge and should have been dealt with in cross‑examination by the prosecutor. Mr Henchliffe points to the fact that count 6, on both the prosecution and the accused’s versions, appeared to have happened much later than the first five counts and an issue of reckless indifference may have been relevant to that count.
I reject the argument. In my view, it was not necessary for the trial Judge to direct the jury in detail on the issue of reckless indifference because that was not how the case was either presented or defended. All of the evidence and addresses make it clear that the issue was whether it had been proved beyond reasonable doubt that C was telling the truth and that the appellant was not telling the truth. The difference between their versions was stark and it was appropriate that neither counsel nor the trial Judge referred further to it.
I would dismiss ground 19 and I would refuse permission on and dismiss ground 23.
Ground 1
Permission has been granted on ground 1 which provides:
The learned trial Judge erred in directing the jury:-
“However, if you find that there was genuine distress and that it was consistent only with the claim by [C] that the alleged offences took place, it can be an aid in assessing the credibility of [C]. Dependent on the view that you take, it may indicate to you that [C’s] behaviour at the time was consistent with the events now related to you by her and thus assist you in assessing the reliability of [C’s] evidence.”
That direction was wrong in law and contrary to section 34M(4) of the Evidence Act 1929.
Mr Henchliffe argues that the trial Judge’s directions about distress were wrong because they conflated the use of the evidence of distress to assess the reliability of C’s evidence when it should have been used to assess the credibility of her evidence.
It is apparent that the trial Judge erroneously used the word “reliability” when referring to distress. Accordingly, there is some merit to Mr Henchliffe’s argument. However, the trial Judge’s erroneous use of the word “reliability” could not have made any material difference to the sense of the direction the trial Judge was giving. The use of the evidence of distress to assess the ‘reliability’ of C’s evidence was never an issue at the trial and the reference to “reliability” clearly would have been taken by the jury to relate only to an assessment of C’s truthfulness.
I would dismiss this ground of appeal.
Ground 2
Ground 2 provides:
The learned trial Judge erred in directing the jury:-
“Common experience suggests that one would naturally expect the victim of such conduct to complain at the first reasonable opportunity. If the alleged victim does so, it may afford some ground for accepting that she is speaking the truth.”
That direction was wrong in law and contrary to section 34M(4) of the Evidence Act.
Mr Henchliffe argues that the requirement in s 34M(4) of the Evidence Act provides that a trial Judge must direct the jury that the evidence of complaint is not admitted and cannot be used as evidence of the truth of what C alleges occurred. Mr Henchliffe argues that that passage could somehow lead to an ambiguity whereby a jury might think that, when the trial Judge refers in the paragraph “if the alleged victim does so, it may afford some ground for accepting that she is speaking the truth”, he was talking about the truth of what she said in the complaint rather than truth of what she said in evidence. If one looks at the whole of the direction on the recent complaint, it is clear that no such ambiguity exists and the direction is unimpeachable. I set it out in full:
I need to give you a direction about the circumstances of the complaint and the way in which that evidence can be used. There are a number of reasons why that evidence has been given in the trial. First, to inform you as to how the allegation first came to light. That gives you a more complete picture of the account of the alleged victim. Second, so that you may judge whether the making of the complaint demonstrates consistency of conduct on the part of the complainant. Do the circumstances of the making of the complaint appear consistent with the occurrence of the events which are the subject of the complaint? That is, does the making of a complaint demonstrate a consistency of behaviour on the part of the complainant? When I use the term ‘complainant’, I am referring to [C]. It may indicate to you that her behaviour at the time of making the complaint was consistent with the occurrence of the events. It also tends to negative any notion that the allegation was a later invention or concoction by her.
The evidence of the initial complaint is not before you to demonstrate, of itself, the truth of what was reported. You will have regard to [C’s] evidence given in court for that purpose. Rather, the evidence is before you for the purpose I have just mentioned, that is to demonstrate consistency of conduct on the part of the complainant.
Common experience suggests that one would naturally expect the victim of such conduct to complain at the first reasonable opportunity. If the alleged victim does so, it may afford some ground for accepting that she is speaking the truth.
Bearing in mind those directions, it is a matter for you to determine the significance, if any, of the evidence of complaint.
Mr Henchliffe further argues that by reference to the use of the complaint to negate concoction, the trial Judge has fallen into error. He seeks support from the decision of R v J, JA.[22] In that case, the Court held that it was inappropriate to direct a jury that evidence of complaint tended to negative any suggestion of recent invention when the issue of recent invention was not raised. In my view, such a direction could not have caused a miscarriage of justice in this case. The jury were properly and thoroughly told that the complaint was not to be used as evidence of the truth of what was said but rather that it was evidence of consistency.
[22] (2009) 105 SASR 563.
Evidence of consistency, of course, goes to the question of whether C was telling the truth when giving evidence. A direction about concoction takes the matter no further.
I would dismiss this ground of appeal.
Conclusion
I would dismiss the appeal.
STANLEY J: I would dismiss the appeal and I would refuse permission to appeal on grounds 22 and 23. I agree with the reasons of David J and the further reasons of Sulan J.
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