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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Briske

Details

AGLC: R v Briske [2007] SASC 314
Case: [2007] SASC 314
Decision Date: 24 August 2007

CaseChat Overview and Summary

The case of R v Briske involved the appellant appealing against his conviction for the offence of rape. The victim in this case could not identify the appellant as her attacker, but DNA evidence found on the victim linked the appellant to the crime scene. The appellant provided an explanation for the presence of his DNA that was consistent with his innocence. The trial judge directed the jury on the effect of the appellant's explanation, leading to a dispute over whether the judge had reversed the burden of proof in his summing up to the jury. The court was required to determine whether the trial judge's direction on the burden of proof was incorrect.

The legal issues before the court included whether the trial judge had inadvertently reversed the onus of proof in his summing up to the jury. The appellant argued that although the trial judge had correctly summarised the onus of proof on numerous occasions, there were parts of the summing up that had an impact that outweighed the earlier correct directions. The appellant submitted that the only contingencies allowed for by the trial judge in the paragraphs in question were 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.

The court found that the trial judge had unwittingly reversed the onus of proof, despite the many instances throughout his summing up where he correctly summarised the onus of proof. The impact of the parts of the summing up mentioned by the appellant outweighed the earlier correct directions given by the trial judge. The court held that the trial judge's direction on burden of proof was incorrect, and thus allowed the appeal on ground 1, setting aside the conviction and ordering a re-trial. The appeal was dismissed on grounds 2 and 3.

The final orders of the court were to allow the appeal on ground 1, setting aside the conviction and ordering a re-trial. The appeal was dismissed on grounds 2 and 3.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J KELLY J

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. I agree with the reasons of Anderson J for allowing this appeal.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J, KELLY J

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