R v Brady

[2014] SASCFC 7

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…