R v DRG

Case [2004] SASC 394

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v GRAY

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)

2 December 2004

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE

Appeal against conviction - Appellant found guilty by jury of four counts of unlawful sexual intercourse, one count of rape and one count of indecent assault - whether trial Judge should have warned the jury that it was unsafe or dangerous to convict on uncorroborated evidence of victim - whether comments made by trial Judge erred in comments made to the jury concerning medical evidence -  whether the trial Judge erred in directions to the jury concerning uncharged acts - whether directions were inadequate in the sense of a fair trial - appeal allowed - convictions set aside and retrial ordered.

R v BFB (2003) 87 SASR 278; R v RWB (2003) 87 SASR 256, discussed.
R v IK [2004] SASC 280; R v Neiterink (1999) 76 SASR 56, considered.

R v GRAY
[2004] SASC 394

Court of Criminal Appeal:       Doyle CJ, Bleby and Gray JJ

  1. DOYLE CJ:          Mr Gray, the appellant, was tried before a jury in the District Court on an Information charging six offences.  The jury found him guilty of four counts of unlawful sexual intercourse with a person under 12 years of age, one count of rape and one count of indecent assault.

  2. L, a young girl aged 11 at the time of the trial, was the victim in each case.  Mr Gray had formed a relationship with her mother, lived with her mother briefly and then married her.

  3. Mr Gray appeals by leave against the convictions that were recorded in the District Court.

  4. He complains that the Judge failed to warn the jury that it would be unsafe or dangerous to convict on the evidence of L.  He submits that in the circumstances such a warning was called for.

  5. He also complains about a possible explanation suggested by the Judge for L not complaining to her mother about the alleged offending.  He complains about two aspects of the direction that the Judge gave relating to findings when L was medically examined.  He complains about the failure of the Judge to explain how evidence of uncharged conduct could be used and could not be used.

    Chronology of events

  6. L was born on 19 March 1992.

  7. Her mother gave evidence for the defence.  She said that she and L’s father separated in 1994.  After that there was not much contact between L and her father.  The mother met…

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R v DRG [2004] SASC 394
Case
[2004] SASC 394
Decision Date

CaseChat Overview and Summary

The appellant, Mr Gray, appealed against his conviction by a jury of four counts of unlawful sexual intercourse, one count of rape, and one count of indecent assault. The appeal was based on the contention that the trial judge should have warned the jury that it was unsafe or dangerous to convict on uncorroborated evidence of the victim, that the trial judge made comments to the jury concerning medical evidence that constituted an error, and that the trial judge erred in directions to the jury concerning uncharged acts. The court was required to decide whether the trial judge's directions to the jury were adequate in the sense of ensuring a fair trial.

The court held that the trial judge's directions in relation to uncharged acts were deficient. The judge did not adequately bring home to the jury that in the circumstances there was likely to be little that Mr Gray could do other than simply deny that he had offended as alleged. The evidence of uncharged acts was important for the jury to understand the limited use to be made of such evidence. The deficiencies in the directions went to the heart of the case, notwithstanding the significance of the medical evidence. Therefore, there was a real risk of a miscarriage of justice as a result of the inadequacy in the directions. The appeal was allowed, the convictions were set aside, and a retrial was ordered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I do not agree. L’s evidence that she was afraid she “would be in trouble” is consistent with her fearing that her mother would not believe her and would side with Mr Gray. In the circumstances, the possibility that the Judge raised was one that the jury were entitled to take into account.Ground 4 - The Judge’s comment on the medical evidence I have summarised the medical evidence earlier in these reasons. The Judge referred to the evidence. He said the jury might think there was little doubt that L had suffered a significant injury to her hymen. He said:“The doctor said this could have been caused by an erect penis or a finger. If it was not an erect penis or a finger she thought the only other possibility was some accident which would have been traumatic. But there is no evidence of any other such accident which could wholly explain the injury to the hymen. Of course, there is always the possibility that it was caused by some event which we just don’t know about. But if it had been such an event, you might wonder whether [L] would not have complained to her mother about it and she would have known about it.” Mr Schapel submits that this comment is unfair. No evidence was led by the prosecutor that L had not suffered an accidental injury that might explain the injury to L’s hymen. There is some force in this point. The prosecutor did not ask L if she had ever had an accidental injury of a kind that might explain the doctor’s findings. But in cross examination L’s mother agreed that she was not aware of any incident that might explain the doctor’s finding. And, in the course of the above direction, the Judge reminded the jury that they should be mindful of the possibility of some event of which they had not been told. In all the circumstances, I do not consider that there is any risk of this aspect of the directions having given rise to a miscarriage of justice.Ground 5 - The Judge’s comment about the significance of the medical findings As I have already said, L’s mother gave evidence that she had been vigilant to protect her children from sexual abuse. Her vigilance extended to the men with whom she had had relationships, including Mr Gray. The Judge made the following comment:“I point out to you that if you are satisfied from the evidence of Dr Woodard-Knight that there had been some sexual penetration of [L’s] vagina by some person, the fact that [L] did not complain about it to her mother or apparently to anyone else and her mother’s vigilance about protecting her from sexual abuse was apparently not sufficient to prevent this occurring or to detect it when it had happened. This may cause you not to place any great weight on [L] not having confided in her mother and in her mother having been able to shield her from sexual molestation.” Mr Schapel complains that this comment overlooks the fact that if L had been interfered with sexually, that might have been by someone other than Mr Gray. L might have been reluctant to complain about that other person, who might well have been a family friend. Sexual interference with L by some other family friend might have occurred despite L not complaining to her mother, and despite her mother’s vigilance. But, he argued, the fact that L’s mother said she had been vigilant remained relevant as a factor in considering whether Mr Gray was the offender, and it might be that L was just as reluctant to identify some other offender as she would have been to identify Mr Gray as the offender.

Decision

Reasons for decision

It follows that the Judge’s directions in relation to the uncharged acts were deficient.Conclusion The Judge’s directions were deficient in the two respects identified. These directions dealt with significant aspects of the case. The fact that L gave detailed evidence of the conduct relied on by the prosecution, and that the opportunity to offend could not be denied, made it important for the jury to understand that in the circumstances there was likely to be little that Mr Gray could do other than simply deny that he had offended as alleged. This was not brought home adequately to the jury. The evidence of uncharged acts in the present case was not evidence that in any sense overwhelmed or overshadowed the evidence of acts the subject of a charge, but it remained important that the jury understand clearly the limited use to be made of such evidence. The directions given were not sufficient in that respect. Having regard to the importance of these matters in the trial of Mr Gray, I conclude that he has not had a fair trial, because on two matters of considerable significance the jury has not been given adequate directions. There is a real risk of a miscarriage of justice as a result of the inadequacy in the directions. While there was solid evidence on which the prosecution relied, and on which it was open to the jury to be satisfied beyond reasonable doubt, deficiencies in the directions cannot be put to one side on the basis that they were of no practical significance, nor can it be said that, properly directed, a jury would inevitably have convicted Mr Gray. The deficiencies in the directions, in my opinion, went to the heart of the case, notwithstanding the significance of the medical evidence. For those reasons I would allow the appeal, set aside the convictions and order that there be a retrial on the Information. BLEBY J: I agree with the orders proposed by the Chief Justice and with his reasons for those orders. GRAY J: I would allow this appeal. I agree with the orders proposed by the Chief Justice. There is nothing I wish to add to the reasons of the Chief Justice.

Ratio Decidendi

Legal Principle Established

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