R v Fennell No. Sccrm-99-20 Judgment No. S179

[1999] SASC 179

R  v  FENNELL
[1999] SASC 179

Court of Criminal Appeal:  Doyle CJ, Prior and Mullighan JJ

1. DOYLE CJ.       In my opinion the appeal should be dismissed.  I agree with the reasons given by Mullighan J for so concluding.

2. PRIOR J    I agree with the reasons given by Mullighan J.  The appeal should be dismissed.

3. MULLIGHAN J:        The appellant was found guilty by verdicts of a jury of three counts of rape and appeals against the convictions of those charges.

4. The charges arose out of an incident at the home of the appellant at Mount Gambier when he had anal sexual intercourse on two occasions with a young man whom I shall refer to as “A” and performed an act of fellatio upon him on 4th May 1998.  At that time A was aged 19 years and apparently he has an intellectual disability.  It was alleged that on this day he was selling raffle tickets door to door in Mount Gambier for what may be described as a charity.  He went to the home of the appellant.  He was invited inside and the incidents of sexual intercourse occurred.  A maintained at the trial that he did not consent and that he was raped.  The appellant gave evidence on oath and admitted having sexual intercourse with A but asserted that, at all times, A was a consenting and willing participant.

5. On this issue of consent, the case against the appellant rested entirely upon the uncorroborated evidence of A, and there was no other evidence to support the case of the appellant.  There was evidence from three independent witnesses that A was in a distressed condition shortly after leaving the house of the appellant but, essentially, it was a case of the word of A against the word of the appellant as the jury could have concluded that it was reasonably possible that the distressed condition was consistent with consensual sexual intercourse in the circumstances.

6. In view of the issue on this appeal, it is unnecessary to mention the evidence given by A or the appellant.  The grounds of the appeal raise, in effect, one matter.  It is contended that the learned Trial Judge misdirected the jury as to the burden of proof.  At an early stage in the summing up, he said:

   “Because it is your decision, and it is your responsibility to decide where the truth lies in this matter, bearing in mind the onus of proof as I will describe it to you.  It is not my job, it is yours, therefore, as far as matters of fact are concerned, what you think is accurate or inaccurate evidence, who you think is telling the truth or is not telling the truth, are matters for you, and not for me.  That is your function and not mine. ........In the course of your consideration of the evidence, you will have to assess the reliability and the credibility, that means the truthfulness, of the witnesses who have given evidence before you.  That is obvious in this case, especially in relation to the two main witnesses, the defendant and [A].  The assessment of a witness involves a consideration, first of all, as to whether that witness is telling the truth, and that is most important in this case.”

In support of that contention, the appellant seeks support from the decision in The Queen v Calides (1983) 34 SASR 355. In that case there were two opposing bodies of evidence and after adverting to that evidence, the learned Trial Judge directed the jury as follows:

“Well, that’s all for you to say but it probably doesn’t take me to tell you, ladies and gentlemen, that both versions in this case cannot be true.  Either [and then he names the four witnesses that I have alluded to who gave evidence for the Crown] have told you things on oath that are not true, or the accused has.  The two versions cannot be explained by any misunderstanding.  It is for you to decide where the truth lies.”

A little later in the summing up, after referring to the opposing bodies of evidence about the interview of the accused by the police, the learned Judge again said, “You must decide where the truth lies”.  Wells J, with whom Legoe and Matheson JJ agreed, made the following observation at p358:

“It seems to me that where a case has so shaped itself that the outcome is likely to depend upon the view taken by a jury of two opposing bodies of evidence, it is a very natural and easy thing for a jury, indeed for anyone, including a judge, to begin by saying to themselves or himself:

‘Here are two opposing bodies of evidence; they can’t both be true.  I suppose we have to decide who’s telling the truth.’

That, I repeat, is a perfectly natural and almost inevitable approach to begin with, at least for the man in the street.  That may be a perfectly practical start, but, unfortunately, in my opinion, it suffers badly from a lack of proper guidance from the principles relating to onus and standard of proof.  It has been said again and again in this Court, and in the cases to which I invited counsel’s attention, which I do not propose to repeat, that where you have two opposing bodies of evidence on matters central to the case which will almost certainly lead, if properly considered and weighed, to a resolution of the case, it is wrong to treat them with the comment, ‘It is for you to decide where the truth lies’.

The onus of proof and the standard of proof must be correctly applied.  It is not just for the jury to decide where the truth lies if that means, and it could well mean to a jury, that it is for them to say whether there is some material which could give them an inclination of opinion in favour of one side or the other.  It would be even worse if the jury were left with the impression that it was their task to decide, and to find, whether there is some material for providing a basis for an inclination of opinion one way or the other.”

Wells J went on to mention that there were three possibilities at pp358-359:

“... the jury may be completely satisfied with the evidence led from the Crown, in which case, assuming all other matters to be properly established, the verdict will be guilty; the jury may be perfectly satisfied with the version presented by the accused, in which case there will inevitably be a verdict of not guilty; and there is the third possibility, which must never be overlooked, and that is that the jury, after a full and careful consideration, may arrive at the result that they are unable to say where the truth lies, or that they are unable to say who is telling the truth.  If that is the situation, then, of course, the verdict must also be not guilty.”

1. In the present case, it is also argued that the learned Trial Judge misdirected the jury because he did not direct them as to the third possibility.

2. It is not the mere use of words which invites a choice between the evidence for the prosecution and the evidence for the defence which may amount to a misdirection even without the mention of the third possibility.  It depends upon consideration of the summing up as a whole and the context in which the impugned direction is given.  In Calides it was given in the context of essential factual issues and as Wells J observed at p359:

   “... and when considering those factual issues an allusion was made - it may not have been an intended reference, but an allusion was made - to something that directly concerns onus and standard of proof, and as the matters then discussed by the learned trial Judge were so central to the case, it was more than possible that the jury could have been misled, that they could have believed that they were doing their duty, notwithstanding the directions on onus of proof, by finding some reason for accepting one side or the other, and that that could well lead to a miscarriage of justice.”

3. In R v Whittingham (1988) 49 SASR 67, the Court was again concerned with a direction that the jury were “to decide where the truth lies from using your experience” but in the context of directions to the jury as to the burden of proof in impeccable terms which included that if they were left in doubt and the charge was not proved, there should be a verdict of not guilty. King CJ, with whom Legoe and Prior JJ agreed, held that no more was required. He went on to say at p71:

   “It is true that where a charge to a jury is framed in terms which invite them to make a choice between evidence for the prosecution on the one side and evidence for the defence on the other, it is incumbent upon the trial judge then to direct them that if they are in doubt as to where the truth lies as between those two bodies of evidence the benefit of that doubt must be given to an accused person, but that does not mean that whenever a jury is told that they are to decide where the truth lies or that it is part of their function to ascertain the truth, more is necessarily required than the usual direction as to onus of proof.  The necessity for the sort of special direction which was referred to in R v Calides (1983) 34 SASR 355 depends upon the way in which the summing up is framed. In the present case I think that the summing up quite adequately explained to the jury the appropriate fact-finding process and the legal burden of proof.”

Much the same issue was raised in Liberato v The Queen (1985) 159 CLR 507 and, in particular, by Brennan and Deane JJ who both dissented from the decision to refuse leave to appeal. Brennan J, with whom Deane J agreed on this topic, said at p515:

“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question:  who is to be believed?  But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving.  The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence.  The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.”

Deane J, at p519, accepted the context in which the direction was given was significant.  He said:

“Provided that they are accompanied by clear and unequivocal directions about the criminal onus and standard of proof, express or implied references in a summing up to a ‘choice’ between particular witnesses are, no doubt, sometimes unavoidable and commonly unobjectionable.  The main significance of the directions about having to make a ‘choice’ lies, in the present cases, in their clear suggestion that the ‘real question’ in the cases turned upon a mere ‘choice’ between the evidence of the complainant and that of the accused and in the possible contribution of that suggestion to the overall effect of the misdirections about onus of proof.”

1. As may be seen from the passage which has been mentioned, in the present case the learned Judge was directing the jury that it was their role to decide the facts and to assess the witnesses when he mentioned the impugned passage.  He was not discussing opposing bodies of evidence as was the case in Calides.

2. The structure of the summing up is important.  This passage occurred almost at the beginning.  The learned trial Judge then went on to give further directions to the jury about the assessment of witnesses in usual and impeccable terms.  He then directed them about other important matters, namely deciding the case only on the evidence, the putting aside of sympathy and prejudice and the presumption of innocence.  He then turned to the burden and degree of proof and again directed the jury in impeccable terms which may be summarised briefly.  He told the jury that the onus of proof was borne by the prosecution from beginning to end and that the appellant did not have to prove anything.  He directed them that the degree of proof is proof required beyond reasonable doubt.

3. The learned Trial Judge then went on to give directions about the significance of the appellant having given evidence and did so in conventional terms.  In this context he again directed the jury that the burden of proof was on the prosecution and as to the degree of proof.  He then gave directions about the charges and the law relating to the charges.  He gave correct directions about the elements of the charges and mentioned that they all have to be proved by the prosecution beyond reasonable doubt.  The learned Trial Judge then gave correct directions about the need for a separate approach to each of these charges.  Immediately thereafter he repeated his direction that the elements of each charge had to be proved beyond reasonable doubt.

4. In his summing up the learned Trial Judge then told the jury that the prosecution case really depended upon the evidence of A.

5. He then gave the following direction about A and his evidence:

   “The prosecution case relied almost entirely upon the evidence of [A].  Because it was so dependent upon his evidence, and because you might think, on his own evidence, [A] is a person who had certain intellectual problems, he gave evidence of not being able to understand things terribly well and being slow to pick things up, because of those two factors, I ask you to scrutinise his evidence with great care and bear in mind very carefully the criticisms that are made of his evidence before accepting it, if you do so accept it, beyond reasonable doubt.”

It may be seen that once again he mentioned that to accept the Crown case the jury had to accept the evidence of A beyond reasonable doubt.

1. He proceeded to summarise A’s evidence and read parts of it to the jury and mentioned the criticisms which defence counsel had made of it.  Having done so, he then reminded the jury of the warning which he had given for them to scrutinise his evidence very carefully.

2. The other evidence in the prosecution case was then summarised.  An appropriate direction was given about evidence of distress.  The learned Trial Judge completed his summary of the prosecution evidence by saying that the assessment by the jury of A, after close scrutiny, was vital to the prosecution case.

3. The learned Trial Judge then summarised the defence case.  He mentioned again that the accused had given evidence on oath and then said:

   “The fact that he has given evidence on oath does not relieve the prosecution of the responsibility of proving their case beyond reasonable doubt.  There is no onus on the accused to prove anything.  His evidence is to be treated like any other witness in the case and to be assessed like any other witness in the case, bearing in mind, of course, the onus of proof.”

The evidence of the accused was then summarised and then the learned Trial Judge gave this direction:

“Ladies and gentlemen, that is a summary of what the accused told you in giving evidence.  You will assess his evidence.  As I say, he is a witness like any other witness in the case.  If you think what he said is the truth, if you think it is reasonably possible that it is the truth, bearing in mind the onus of proof, bearing in mind the Crown have to prove beyond reasonable doubt that it is not the truth, then he must be acquitted.”

1. Towards the end of the summing up, there was further mention of the need for the elements of the charges to be proved beyond reasonable doubt and at the conclusion the learned Trial Judge reminded the jury that they had to assess the evidence of A with great care because of his “admitted difficulties”, no doubt a reference to his intellectual disability, and also because the prosecution case rose or fell on the evidence of A alone although there was some supporting evidence of which he had reminded them.

2. Despite the contention to the contrary, there was no misdirection to the jury.  The learned Trial Judge made the burden and degree of proof clear to the jury at all times.  As has been mentioned, the reference to the responsibility to decide where the truth lies in the matter was made in the context of it being the role of the jury to decide the facts and to assess the witnesses.  Unlike in Calides, it was not mentioned in the context of opposing bodies of evidence and could not have deflected the jury from the application of the directions as to the burden and degree of proof.  The learned Trial Judge made it perfectly clear that the burden of proof was always on the prosecution, a matter to which he adverted at all appropriate stages during the summing up.  I have mentioned the observations of King CJ in Whittingham and of Brennan J in Liberato.  In my view the directions of the learned Trial Judge were entirely in accordance with those observations.  The jury was clearly directed that if they were in any doubt, the benefit of that doubt had to be given to the appellant.  The problem in Calides, as Wells J pointed out at p359, was the context in which the impugned direction was given.  That problem does not exist in the present case.

3. I would dismiss the appeal.