R v G, GT - [2007] SASC 104

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 104
Court 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…

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 G, GT

Details

AGLC: R v G, GT [2007] SASC 104
Case: [2007] SASC 104
Decision Date: 28 March 2007

CaseChat Overview and Summary

The appeal against conviction concerns the appellant who was found guilty of one count of indecent assault and one count of unlawful sexual intercourse. The appellant, who was a taxi driver, had taken a 14-year-old girl, referred to as V, to Adelaide under the pretext of photographing taxis for the South Australian Taxi Association. V alleged that during this trip, the appellant sexually assaulted her. The court of appeal reviewed several complaints about the trial, including the trial judge’s direction to the jury on lies allegedly told by the appellant, the trial judge’s decision not to exclude evidence of uncharged criminal behaviour, and the trial judge’s directions regarding the delay in complaint, inconsistencies in V’s evidence, and the use of evidence of uncharged acts.

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

The appeal against conviction involves complaints about:·the trial judge’s direction to the jury on lies allegedly told by the appellant out of court;·the trial judge’s decision not to exclude evidence of uncharged criminal behaviour, and alternatively, his direction to the jury on that evidence;·the trial judge’s direction to the jury in relation to V’s delay in making a complaint;·the trial judge’s direction to the jury in relation to inconsistencies between the evidence of V and prior statements she made; and·the trial judge’s decision not to exclude evidence about the appellant purchasing alcoholic drinks for V and her friend after the alleged offences.Background Facts V gave evidence that the offences took place in January 2003, when she was 14 years of age. She had known the appellant for about a year prior to the relevant dates. Both of them lived in the same country town, and she knew him from catching taxis, as he was a taxi driver. V had received a photography award, and her evidence was that when she told the appellant about that award, he suggested that he pay her to take photographs of taxis in Adelaide. V said that the appellant told her that he had been asked to do this by the South Australian Taxi Association in order to photograph taxis doing things incorrectly. V’s evidence was that she spoke to her parents about the trip, and although they were reluctant for her to go, she insisted on going to Adelaide with the appellant for that purpose. It was during this trip that V alleged the offences took place. V drove to Adelaide with the appellant, and they went to a motel. V’s evidence was that on the first night, after they had eaten dinner and consumed a certain amount of alcohol, the appellant manipulated her breasts with his hands, and a little later he asked her into his bedroom and performed an act of cunnilingus upon her. V said that the appellant also “fingered” her. After the sexual activity finished, V’s phone rang and during a conversation with a female friend (whom I will refer to as “S”) she was asked what was wrong because V appeared to be speaking in a confused and angry manner. V gave evidence that she then went into the bedroom where the appellant was and asked him to suggest an explanation she could tell her friend on the phone. According to V, the appellant suggested not to tell her anything. V then explained to S that she was in Adelaide for the purpose of taking photographs on behalf of the appellant and that she did not know if she was allowed to tell anyone the reason why. She then made arrangements to meet S the next night. V did not tell S that anything of a sexual nature had occurred between she and the appellant. On the second day, V took photographs of taxis and drove around with the appellant. V met S at the cinema but they did not go to a movie. Later, the appellant picked both of them up, and they went back to the motel and had dinner, and the appellant also purchased alcohol for them. Later that evening, S’s mother picked her up, and when V was alone with the appellant, she reluctantly gave him a massage after being asked to do so.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ GRAY J DAVID J

It would have been appropriate for the trial judge to leave the lie to V’s father as material going to the credibility of the appellant. It would also have been appropriate to charge the jury in the way that the prosecutor addressed them, namely that the very conversation with V’s father was a piece of circumstantial evidence suggesting that the appellant was involved in a pre‑emptive strike to put forward his slant on the allegations, and indeed, showed a certain amount of esoteric knowledge (although it could have been argued that this may have been negated by reference to the wife’s evidence about rumours). In my view it was incorrect in those circumstances to leave the lie arising from that conversation as evidence going to consciousness of guilt.Conclusion I would allow ground 1. I would dismiss grounds 2, 3, 4 and 5. I would allow the appeal, and I would remit the matter for retrial.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ, GRAY J, DAVID J

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