R v Briske - [2007] SASC 314

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRISKE
[2007] SASC 314
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Kelly)
24 August 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF SUMMING UP AS A WHOLE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - PROOF AND EVIDENCE
Appellant convicted of rape - identification evidence important - victim could not identify the appellant - DNA evidence of appellant found on victim - appellant gave explanation of DNA presence consistent with innocence - trial judge gave direction to jury on effect of appellant's explanation - whether trial judge reversed burden of proof in summing up to jury.
Held: trial judge's direction on burden of proof incorrect - appeal allowed - conviction quashed - matter remitted for rehearing.
Murray v The Queen [2002] 211 CLR 93, applied.
R v Cerullo 141 A Crim R 114, distinguished.

R v BRISKE
[2007] SASC 314
Court of Criminal Appeal: Doyle CJ, Anderson and Kelly JJ

DOYLE CJ: These are my reasons for joining in the order, made on an earlier occasion, that the appeal against conviction be allowed, setting aside the conviction recorded in the District Court, and ordering a re-trial. I agree with the reasons of Anderson J for making that order.
I propose to comment briefly on the criticism of the summing up in relation to the burden of proof.
The finding of semen on a vaginal swab taken from the complainant, which semen contained DNA identical to that of Mr Briske, was a central part of the prosecution case. If the jury were satisfied that the semen was deposited during the rape described by the complainant, it followed that Mr Briske was the rapist.
Mr Briske’s answer to this aspect of the prosecution case was that the semen was deposited during an act of consensual intercourse in the early hours of the Saturday morning preceding the rape. The jury could convict him only if that answer or explanation was negatived as a reasonable possibility. Unless it was negatived as a reasonable possibility, the jury could not be satisfied beyond reasonable doubt that Mr Briske was the rapist. This issue was at the heart of the prosecution case.
The Judge’s directions on the point were as follows:
If you accept the evidence of Mr Briske you must acquit because that would involve an acceptance of his denial of the events. It could not be open to you to infer that he was the rapist.
If you accept the evidence of the accused as to the car park incident, then you need to consider the scientific evidence about the detectability of semen after what would be more than in the vicinity of 50 hours; that is, from midnight on Friday, say, until half past one on the following Monday. If you were to find that there was a possibility that semen deposited at around midnight on Friday, would have been detectable on the following Monday afternoon, there would be an explanation for the presence of the semen of the accused. In order to exclude the alternative of the semen having been deposited on a Friday night, the Crown would have to prove beyond reasonable doubt that the semen deposited on Friday night would not have been detectable on the Monday afternoon.
If you accept the evidence of Mr Briske as to the car park incident so that there would be another reasonable explanation for the presence of his DNA in [the complainant’s] vagina, it would not be open to you to draw the inference which would be necessary to make a finding of guilty.
If you accept the evidence of the accused as to the car park incident, but the Crown have not established beyond reasonable doubt that the semen would not be detectable on Monday afternoon, there would be a reasonable hypothesis consistent with innocence and that would prevent you from inferring that the presence of the DNA in [the complainant’s] vagina, by itself, means that the accused had raped [the complainant].
On the other hand, if you accept the evidence as to the car park incident but were satisfied beyond reasonable doubt on the scientific evidence that semen deposited about midnight on Friday night would not be detectable on the swab taken on the following Monday afternoon, then the inference that the accused was the rapist is an inference that you could consider, but if you come to consider that inference then I repeat what I said earlier about the need to be careful. Before you can draw any inference adverse to the accused you must be satisfied as to the existence of facts and circumstances from which you are asked to draw that inference. You must avoid any speculation in arriving at your conclusion.
In order to arrive at the inference that the prosecution seeks, you must exclude the possibility that the DNA of the accused came to be on [the complainant] as a result of the car park incident. Before you can draw an inference adverse to the accused and in favour of the Crown, it must be the only inference which, in your view, can be drawn beyond reasonable doubt. What I just said follows from the fact that the onus is on the Crown to establish all of the elements of the charges beyond reasonable doubt.
Throughout this passage the Judge posed the question of whether the jury would “accept the evidence” of Mr Briske about the act of consensual intercourse.
As Anderson J points out, the Judge began by referring to the possibility that the jury might affirmatively accept or believe the evidence of Mr Briske. The jury might well have thought that in the following paragraphs the Judge was using the word “accept” in the same sense. The context would suggest that he was.
But it was sufficient for an acquittal if the jury accepted as a reasonable possibility that the evidence given by Mr Briske was true or, as I have already said, the jury could not convict unless the prosecution had negatived that version of events as a reasonable possibility. That point had to be made firmly and clearly to the jury.
The jury should have been told that they could not convict Mr Briske unless satisfied beyond reasonable doubt that the semen found in the complainant did not result from a consensual act of intercourse on the Friday night.
When the relevant part of the Judge’s directions is read as a whole, there is a real risk that the jury would have thought that they could and should acquit only if they started from the factual premise of accepting the truth of Mr Briske’s evidence about the act of consensual intercourse.
I acknowledge that on a number of occasions the Judge told the jury that they could only convict if satisfied of Mr Briske’s guilt beyond reasonable doubt. The Judge told them that before and after the remarks set out above. But this aspect of the case was so important to the jury’s final conclusion that it was essential that the jury be clearly and correctly directed in relation to it.
The danger of a miscarriage of justice is illustrated by a further short extract from the Judge’s summing up, which follows almost immediately after the passage set out above. The Judge concluded his treatment of the topic by saying:
The evidence of the accused is that the car park incident, if accepted, would provide a reasonable explanation consistent with innocence. In order to convict you must reject the evidence of the accused as to the car park evidence or the car park incident. If you do not reject that evidence, there will be a reasonable explanation consistent with innocence and you should acquit. Whether you accept or reject the evidence of the accused as to the car park incident is entirely for you. In arriving at your decision you might have regard to my earlier comments about assessing witnesses.
In my respectful opinion this paragraph, while in the second sentence containing an accurate direction to the jury, continues to suggest that acceptance of Mr Briske’s evidence is a premise for a not guilty verdict. And this passage concluded by suggesting to the jury that the issue was whether they accepted or rejected his evidence.
It is always necessary to consider a summing up as a whole. But one cannot assume that general directions to the effect that the jury should convict only if satisfied of guilt beyond reasonable doubt, would displace the risk of error resulting from the jury understanding the Judge as telling them that acceptance of the evidence of Mr Briske was an essential preliminary to a not guilty verdict. The cumulative impact of the references to the jury accepting the evidence of Mr Briske is too great for me to be able to conclude that the general and accurate directions that the Judge gave removed the risk of error.
ANDERSON J.
Background
The appellant was found guilty by a jury of one count of burglary and one count of rape. The allegations against the appellant were that between 2 April 1995 and 3 April 1995 he broke and entered the dwelling house of the complainant with intent to commit an offence, namely, rape, and therein raped the complainant. The rape count alleges vaginal sexual intercourse with the complainant without her consent.
The issue in the trial was the identity of the person who broke into the complainant’s house and raped her. She was not able to identify the perpetrator of these crimes, either by an adequate description or from photographic identification. There was no doubt that the complainant was raped in the manner described by her.
The prosecution case was that the appellant was the burglar and rapist. The prosecution relied heavily on DNA found in semen from a swab taken from the complainant’s vagina. The appellant did not dispute that the DNA identified from the semen present on the vaginal swab was his. It was the appellant’s case that his semen was present as a result of an incident that occurred when he and the complainant had unprotected consensual intercourse in a car park at the Surrey Downs Hotel. The appellant’s case was that this incident took place on Friday night, 31 March 1995. The burglary and rape, as I have indicated, were alleged to have taken place between 2 April 1995 and the early hours of Monday 3 April 1995. The complainant denied having ever met the appellant and denied any incident with the appellant involving sexual intercourse at the Surrey Downs Hotel. She also denied having ever gone to the Surrey Downs Hotel, although it was near where she lived.
The issues
There was therefore an important question as to how long sperm could survive, given that the swab was taken approximately 62 hours after the suggested act of intercourse in the car park of the hotel. Expert evidence was called on this topic.
The question was therefore whether it was a reasonable possibility that the semen containing the identified DNA of the appellant could have been deposited by the appellant on the Friday night during the suggested consensual act of intercourse and still be present at the time the swab was taken.
Dr Black took the swab and said that in her experience investigators did actually look for evidence of semen after a period of three days. Mr Carroll, a scientist employed by the State Forensic Science Centre, also expressed an opinion. He said that as far as the literature went, the longest amount of time you could expect to find sperm within the vaginal area would be about 72 hours.
Therefore it seems that based on the evidence of both of the experts, it was open to the jury to accept as a reasonable possibility that the semen found on examination of the complainant resulted from intercourse during the suggested incident at the Surrey Downs hotel on the Friday night.
The arguments on appeal
The appellant proceeded with grounds 1, 2 and 3 of the substituted grounds of appeal. Those grounds are as follows:
1.The learned trial judge erred in that his directions reversed the onus of proof when he said:
“If you accept the evidence of the accused as to the car park incident …”
S.U. p11 para 2
S.U. p11 para 3
S.U. p11 para 4
S.U. p11 para 5
2.In his directions as to the presence of DNA, the learned trial judge failed to identify for the jury that the issue was whether sperm would be found on a high vaginal swab taken 3 days after the ejaculation.
3.The learned trial judge erred in failing to identify for the jury the conflict between the expert witnesses for Dr Black and Mr Carroll as to the length of time after ejaculation when sperm would be found upon swabbing.
I will deal with the second and third grounds first. They relate to the directions given by the learned trial judge regarding the life span of sperm after sexual intercourse and relating to the DNA profile obtained from the sperm.
Ms Powell QC, counsel for the appellant, submitted that the issue at trial was whether the jury was satisfied that the DNA of the accused taken from the vaginal swab was deposited during the course of the rape. Although the two experts agreed on the general 72-hour outer limit, Mr Carroll thought that in this case the probable time-frame was 24 to 30 hours because of the quantity of semen detected. Ms Powell argued that this represented a contradiction in the expert evidence and required a specific jury direction. She argued that the jury would have been confused about how to treat the issue of sperm detected in the vicinity of the 50-60 hour mark which was an issue raised by the appellant’s explanation for the presence of his DNA on the swab taken.
Mr Hinton QC, counsel for the respondent, argued that there was no real conflict between the experts as they generally agreed on the 72-hour time-frame, even though Mr Carroll said that the quantity of semen found indicated that it had been deposited within 24 to 30 hours of the examination. The real issue, the respondent argued, was whether the sperm could have been deposited on the Friday night. If this was not a reasonable possibility then the only other explanation was the rape. The respondent submitted that in the entire context of the summing up, the learned trial judge adequately canvassed the issue.
In his summing up the trial judge devoted the following paragraphs to these issues. His Honour said:
While I am on the subject of the evidence of Dr Black I remind you of her evidence that she used to take swabs looking for semen up to three days after an alleged sexual assault. She said that at the present time, after some study, they actually do look for semen after three days, for a longer period of time.
In order to be satisfied that the DNA of the accused was contained on the swab taken by Dr Black, you must accept the evidence of Mr Carroll, the scientist from the Forensic Science Centre.
If I can digress for a moment to tidy up the life of semen, if I can put it that way. Mr Carroll said the longest amount of time to find sperm within a vaginal area would be 72 hours, but in relation to the amount that he examined it would be substantially less than that and he was not able to give an accurate figure. He said that the broad range is probably more likely to be around the 24 to 30 hour mark.
In my view it was not necessary to go into the detail that the appellant suggested. That is because there was really no dispute between the two experts when it came to determining the outer limits of the time at which the deposit of semen could have been made consistent with it being present at the time the swab was taken. Both the experts agreed that you could legitimately look for semen deposited up to 72 hours earlier.
In his summing up the learned trial judge, following the passages referred to earlier, said:
If you accept the evidence of the accused as to the car park incident, then you need to consider the scientific evidence about the detectability of semen after what would be more than in the vicinity of 50 hours; that is, from midnight on Friday, say, until half past one on the following Monday. If you were to find that there was a possibility that semen deposited at around midnight on Friday, would have been detectable on the following Monday afternoon, there would be an explanation for the presence of the semen of the accused. In order to exclude the alternative of the semen having been deposited on a Friday night, the Crown would have to prove beyond reasonable doubt that the semen deposited on Friday night would not have been detectable on the Monday afternoon.
As Mr Hinton points out, when all the paragraphs of the summing up on this topic are looked at in conjunction with the hypothesis put by the defence, the jury knew what the issue was and clearly understood the defence case. I do not regard the summing up as defective in this area. I would therefore dismiss grounds 2 and 3.
Ground 1
This ground relates to an alleged reversal of the onus of proof in relation to the trial judge’s summing up when he said, several times, “If you accept the evidence of the accused as to the car park incident” as a preface to his comments on the issues which the jury had to consider.
I will set out each of the passages in the summing up where His Honour uses that expression. His Honour said:
If you accept the evidence of Mr Briske you must acquit because that would involve an acceptance of his denial of the events. It could not be open to you to infer that he was the rapist.
Here His Honour was instructing the jury that if it accepted the evidence of the accused as to his explanation consistent with his innocence he should be acquitted of the burglary and the rape.
His Honour then went on to say:
If you accept the evidence of the accused as to the car park incident, then you need to consider the scientific evidence about the detectability of semen after what would be more than in the vicinity of 50 hours; that is, from midnight on Friday, say, until half past one on the following Monday. If you were to find that there was a possibility that semen deposited at around midnight on Friday, would have been detectable on the following Monday afternoon, there would be an explanation for the presence of the semen of the accused. In order to exclude the alternative of the semen having been deposited on a Friday night, the Crown would have to prove beyond reasonable doubt that the semen deposited on Friday night would not have been detectable on the Monday afternoon.
In this passage the trial judge was linking the evidence of the accused in relation to the car park incident with the scientific evidence that I have referred to earlier in discussing grounds 2 and 3 of the appeal. That evidence related to the length of time that semen would remain detectable. Importantly, in my view the trial judge did not instruct the jury that it was not just a question of acceptance or rejection of the accused’s evidence of the car park incident but that the jury could also acquit if they found the evidence of the accused as to the incident to be a reasonable possibility.
The next direction given by the trial judge was:
If you accept the evidence of Mr Briske as to the car park incident so that there would be another reasonable explanation for the presence of his DNA in [the complainant’s] vagina, it would not be open to you to draw the inference which would be necessary to make a finding of guilty (sic).
That is again instructing the jury that an acceptance of the evidence of the accused in relation to the car park incident, may explain why the accused’s semen was found in the vagina of the complainant.

The summing up continued with the judge saying:
If you accept the evidence of the accused as to the car park incident, but the Crown have not established beyond reasonable doubt that the semen would not be detectable on Monday afternoon, there would be a reasonable hypothesis consistent with innocence and that would prevent you from inferring that the presence of the DNA in [the complainant’s] vagina, by itself, means that the accused had raped [the complainant].
This is similar to the earlier part of the summing up where His Honour linked the car park incident to the scientific evidence but did not, in respect of the incident, inform the jury that they could acquit if the found the evidence of the accused as to the incident to be a reasonable possibility.
His Honour went on to say:
On the other hand, if you accept the evidence as to the car park incident but were satisfied beyond reasonable doubt on the scientific evidence that semen deposited about midnight on Friday night would not be detectable on the swab taken on the following Monday afternoon, then the inference that the accused was the rapist is an inference that you could consider, but if you come to consider that inference then I repeat what I said earlier about the need to be careful. Before you can draw any inference adverse to the accused you must be satisfied as to the existence of facts and circumstances from which you are asked to draw that inference. You must avoid any speculation in arriving at your conclusion.
His Honour in this passage is directing the jury as to inferences that could be drawn that the accused was the rapist by reference to the scientific evidence which related to the presence of the accused’s semen in the complainant’s vagina. However the direction is once again prefaced in the same way, and not referring to the ability of the jury to acquit if it found the evidence of the accused as to the incident to be a reasonable possibility.
Finally His Honour went on to say:
In order to arrive at the inference that the prosecution seeks, you must exclude the possibility that the DNA of the accused came to be on [the complainant] as a result of the car park incident. Before you can draw an inference adverse to the accused and in favour of the Crown, it must be the only inference which, in your view, can be drawn beyond reasonable doubt. What I just said follows from the fact that the onus is on the Crown to establish all of the elements of the charges beyond reasonable doubt.
In my view this single paragraph in the summing up does not restore the balance which I believe was upset by the preceding five paragraphs. I am of the opinion that the jury could easily have been left with the impression that they were faced with either acceptance or rejection of the evidence of the accused as to the car park incident without qualification.
In each of those parts of the summing up where the trial judge has prefaced his remarks by use of the phrase “if you accept the evidence of the accused as to the car park incident”, it is my view that the jury could easily have been confused and even under the misapprehension that the issue for them was whether they accepted or rejected the evidence of the accused as to what happened in the car park. The trial judge did not make it clear that the jury should consider whether there was a reasonable possibility that the incident in the car park occurred. That would have placed the matter in the proper context rather than the possible conclusion by the jury that in some way the prosecution had been relieved of the burden of proving its case beyond reasonable doubt.
The onus of proof
Ms Powell relied on the decision in Murray v The Queen [2002] 211 CLR 193 to the effect that this was an error by His Honour in instructing the jury on the burden of proof. It was submitted that the choice given to the jury was to either accept or reject the accused’s version of the suggested car park incident rather than whether there was reasonable possibility that the event occurred, therefore raising a reasonable doubt in relation to the prosecution case. In Murray, the appellant was charged with murder. The victim died as a result of gunshot wounds discharged from a double-barrelled shotgun. The shotgun was faulty in the sense that the second barrel would discharge sympathetically with the first and could also discharge if struck in a particular way. There was evidence that the appellant had for a considerable time harboured animosity towards the deceased.
The appellant in that matter contended that he confronted the deceased in his living room with the shotgun, and pointed it at the deceased in order to scare him out of the house. The deceased rose from his chair and punched the appellant in the head thereby causing the shotgun to accidentally go off and inflict the fatal wounds. That was the defence hypothesis.
An issue arose relating to the directions given about the onus of proof and whether they were adequate. In her directions to the jury on the matter of the evidence surrounding these asserted facts, the learned trial judge made repeated reference to the jury “accepting” the appellant’s evidence. It was held that the direction was a reversal of the burden of proof adequate to confuse the jury and the appeal was allowed.
Ms Powell also referred to the decision of this Court in R v Cerullo [2003] 141 A Crim R 114. In Cerullo the appellant had been convicted of importing commercial quantities of cocaine into Australia. Large quantities of cocaine were found in the appellant’s garage, but he claimed it was there unbeknown to him and that someone else who had access to the premises put it there. The trial judge gave a direction to the jury and used the phrase “accept as a reasonable possibility” when referring to the jury’s options in dealing with the appellant’s explanation consistent with innocence. This was raised as a point on appeal, the appellant arguing that the onus or burden of proof had been reversed.
The decision in Murray was applied in Cerullo but it was held that the learned trial judge had adequately directed the jury on the issue of the burden of proof. It was held that the word “accept” was not used in the same way as in Murray, in that it was not left to the jury to accept one version of events over another. The trial judge had left it to the jury to consider whether the stated facts consistent with the innocence of the appellant were a reasonable possibility. Prior J said at [42] and [43]:
[42]In Murray v The Queen the High Court identified the risk of misleading juries when talking of accepting a version of events favourable to an accused in the course of directions on the burden of proof. There is no room for comparison of alternatives. Rather, juries must be clearly directed that the prosecution must prove all elements of an offence beyond reasonable doubt. This requires no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt. The issue for the jury is not whether it should accept the appellant’s version but whether the prosecution has negatived it as a reasonable possibility.
[43]In this case, I do not think that the trial judge used the word “accept” in the way that it was used in Murray. It was not left in the sense of accepting one version of events over another. Rather, the trial judge was leaving it to the jury to consider whether they accepted a version of the facts to be a reasonable possibility on the evidence. If that were so, the jury had to acquit. I do not think that the trial judge invited the jury to decide which of two competing versions they would accept. (Citations omitted).
Bleby and Sulan JJ reached the same conclusion and said at [84]:
[84]As we have said, the trial Judge in this case used the word “accept” on three occasions, but not in the sense of accepting one version of events over another. In each passage criticised by the appellant the Judge was inviting the jury to consider not whether they accepted the appellant’s version of the facts, as opposed to the prosecution’s version of the facts, but whether they accepted a version of the facts to be a reasonable possibility on the evidence. The direction effectively meant no more than that if they considered that version of the facts to be a reasonable possibility open on the evidence, they were to acquit. That does not amount to an invitation to decide which of two competing versions they will accept. It does not amount to a misdirection.
In this matter the complainant had described the man who raped her as about 19 years old. In fact the appellant was almost 40 years old at the time of the offending. As I have indicated, the complainant was unable to identify the appellant from photographs. The only evidence upon which the appellant could be linked to these crimes was the DNA evidence from the semen taken from the vaginal swab. This made the car park incident a focal point of the jury’s consideration.
It is my view that this matter is different from Cerullo but very much akin to the situation the High Court dealt with in Murray v The Queen. Gaudron J dealt with the issue arising in this matter when Her Honour said at [23]:
[23]Although the trial judge, in the early part of her directions, correctly instructed the jury with respect to the onus of proof, in the passages set out above her Honour posed the question for the jury’s determination with respect to murder as the question whether it accepted the prosecution’s or the appellant’s versions of events. That was the central or critical direction in Her Honour’s summing up.
In my view this case is on all fours with that statement.
As Gaudron J went on to say: [23]
[23]And as the issue for the jury was not whether it should accept the appellant’s version but whether the prosecution had negatived it as a reasonable possibility, that direction mis-stated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt.
Once again it is my view that this summary by Her Honour fits the present case.
In the circumstances of this case, it is my view that the cumulative effect of the trial judge conveying to the jury that their task involved either accepting or rejecting the evidence of the accused as to the incident in the car park means that there has been a misdirection in the terms stated by the High Court in Murray.
It is my view that the trial judge unwittingly reversed the onus of proof. I say this despite the many instances throughout his summing up where the trial judge quite correctly summarised the onus of proof. Despite those many references on which Mr Hinton relied, it is my view that the impact of the parts of the summing up that I have mentioned outweighs the earlier correct directions which the trial judge gave. The only contingencies allowed for by the trial judge in the paragraphs referred to was acceptance or rejection of the evidence of the accused as to whether the car park incident occurred and not whether there was a reasonable possibility that it did.
Conclusion
These are my reasons for dismissing the appeal on grounds 2 and 3, but allowing the appeal on ground 1, thereby setting aside the conviction and ordering a re-trial.
KELLY J. I agree with the reasons of Anderson J for allowing this appeal.