SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v G, GT
[2007] SASC 104
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice David)
28 March 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP
Appeal against conviction - appellant convicted of one count of indecent assault and one count of unlawful sexual intercourse - evidence that after police approached appellant, he phoned victim's father and claimed that victim was "out to get him", and that he had never been in cars with children - prosecutor presented as evidence that accused feared that victim had told police about misconduct and was trying to get in early to establish a defence - trial judge directed jury that evidence was lie capable of providing evidence of consciousness of guilt - whether trial judge erred in giving lies direction - held, appeal allowed, matter remitted for retrial - lies direction should only be given in clear and limited circumstances - evidence of "lie" was confused and unclear making it dangerous to leave to jury as consciousness of guilt.
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE - PARTICULAR CASES
Evidence of uncharged criminal conduct subsequent to charged offences - evidence that appellant purchased alcohol for victim subsequent to charged offences - whether trial judge erred in not excluding this evidence - held, evidence of uncharged criminal conduct was relevant to explain lack of complaint and appellant's continuing sexual interest in victim - evidence of appellant purchasing alcohol had probative use that outweighed prejudicial effect.
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - MISDIRECTION AND NON-DIRECTION
Whether trial judge properly directed jury regarding delay in complaint, inconsistencies in victim’s evidence, and use of evidence of uncharged acts – held, trial judge gave proper directions in relation to these matters.
Criminal Law Consolidation Act 1935 (SA), referred to.
R v Loader [2004] SASC 234; (2004) 89 SASR 204; Harris v The Queen (1990) 55 SASR 321, applied.
R v G, GT
[2007] SASC 104Court of Criminal Appeal: Doyle CJ, Gray and David JJ
DOYLE CJ. I agree that the appeal against conviction should be allowed, and that there should be a retrial, for the reasons given by David J.
I add some observations limited to the aspect of the Judge’s directions which contain a misdirection giving rise to a miscarriage of justice.
David J has summarised the relevant facts.
The prosecutor put to the jury that the jury might conclude from the fact that the appellant telephoned V’s father when he…
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- R v G, GT [2007] SASC 104
- Case
- [2007] SASC 104
- Decision Date
CaseChat Overview and Summary
The primary legal issues addressed in this appeal were whether the trial judge erred in giving a direction to the jury that evidence of a lie told by the appellant was indicative of consciousness of guilt, whether the trial judge properly admitted evidence of uncharged criminal conduct, and whether the trial judge gave appropriate directions to the jury regarding the delay in complaint, inconsistencies in V’s evidence, and the use of evidence of uncharged acts. The court found that the trial judge erred in directing the jury that the evidence of the appellant’s lie was indicative of consciousness of guilt, as the evidence was confused and unclear. The court also found that the trial judge properly admitted evidence of uncharged criminal conduct as it was relevant to explain the lack of complaint and the appellant’s continuing sexual interest in V. Finally, the court found that the trial judge gave appropriate directions to the jury regarding the delay in complaint, inconsistencies in V’s evidence, and the use of evidence of uncharged acts.
The court held that the appeal should be allowed and the matter remitted for retrial due to the trial judge’s error in directing the jury regarding the evidence of the appellant’s lie. The court dismissed the other grounds of appeal and found that the trial judge properly admitted evidence of uncharged criminal conduct and gave appropriate directions to the jury. The court concluded that the appellant was entitled to a retrial as the error in the direction regarding the lie was significant enough to potentially affect the outcome of the trial.
The final orders of the court were to allow the appeal, dismiss the other grounds of appeal, and remit the matter for retrial. The court emphasized that directions regarding lies should only be given in clear and limited circumstances, and that the evidence of the appellant’s lie in this case was not sufficiently clear or limited to warrant such a direction. The court also found that the evidence of uncharged criminal conduct was properly admitted and that the trial judge gave appropriate directions to the jury regarding the delay in complaint, inconsistencies in V’s evidence, and the use of evidence of uncharged acts.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: DOYLE CJ, GRAY J, DAVID J
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