R v Gray

Case [2004] SASC 218 29 July 2004

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SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v GRAY
Reasons for Ruling of The Honourable Justice Nyland
29 July 2004
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Application for extension of time within which to appeal against sentence - delay due to difficulty in obtaining opinion identifying grounds of appeal and delay in obtaining legal aid - whether appropriate to extend time and grant leave - applicable test for leave where there is a long delay in filing of application - arguable test no longer applies - extension of time granted.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION AND NON-DIRECTION
Application for leave to appeal against conviction - whether the trial judge's directions to the jury provide grounds for apprehending that a miscarriage of justice has occurred - leave to appeal granted.
Criminal Law Consolidation Act 1935 ss 352, 357(1) and 357(2); Supreme Court Criminal Appeal Rules s 4A(1), referred to.
Longman v The Queen (1999) 168 CLR; R v BFB [2003] SASC 411 (18 December 2003); R v RWB [2003] SASC 420 (18 December 2003); R v Foster (1996) 187 LSJS 135; Bartle (1991) 57 A Crim R 51; R v Brown [1963] SASR 190; R v Balchin (1974) 9 SASR 64; R v Armstrong (1963) 35 SASR 356; R v Trotter [1979] 22 SASR 64; Jackamarra v Krakouer [1998] 195 CLR 516; Crampton v The Queen (2000) 206 CLR 181; R v Nieterink (1999) 76 SASR 56, applied.
Gikas v Police (1999) 202 LSJS 301, discussed.
R v Butler (1989) 44 A Crim R 215, considered.

R v GRAY
[2004] SASC 218
Application for leave to appeal:

NYLAND J: This is an application for an extension of time within which to appeal against conviction. The application for extension of time was heard at the same time as the application for leave to appeal.
The applicant was charged on information with one count of rape and five counts of unlawful sexual intercourse. On 2 July 2003, the applicant was found guilty by verdict of the jury of five of the charges against him. He was found guilty of the alternative offence of indecent assault on the remaining charge. On 14 August 2003, the applicant was sentenced to 13 years imprisonment with a non-parole period of eight years. On 23 December 2003, the applicant signed a notice to appeal against conviction which was filed on 6 January 2004.
The application for leave was instituted pursuant to s 352 of the Criminal Law Consolidation Act 1935 (CLCA). Pursuant to that provision, a convicted person has an appeal of right on any question of law but must apply for leave to appeal on any other question.
Section 357(1) provides that an application for leave made under the Act must be in accordance with…

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 Gray

Details

AGLC: R v Gray [2004] SASC 218
Case: [2004] SASC 218
Decision Date: 29 July 2004

CaseChat Overview and Summary

In the matter of R v Gray, the applicant sought an extension of time within which to appeal against his conviction and sentence. The applicant was found guilty of multiple counts of unlawful sexual intercourse and rape involving a child, as well as an alternative offence of indecent assault. The application for an extension of time was necessitated by delays in obtaining legal advice and securing legal aid. The court was required to determine whether the delay was sufficient to warrant an extension of time and whether the proposed grounds of appeal were arguable, which would justify the apprehension of a miscarriage of justice. The test for leave to appeal where there has been a long delay in filing the application was considered, with the court noting that the traditional arguable test no longer applied in such circumstances.

The legal issues before the court included whether the proposed grounds of appeal were arguable and whether the delay in filing the application was justified. The court noted that the arguable test was not applicable due to the length of the delay in filing the application. Instead, the court considered whether there were exceptional circumstances that warranted an extension of time. The court also examined the directions given by the trial judge to the jury to determine if they provided grounds for apprehending a miscarriage of justice, which would warrant leave to appeal. The applicant argued that the trial judge's directions to the jury were misdirections and non-directions that led to a miscarriage of justice.

The court granted the extension of time and leave to appeal. The court found that the applicant had demonstrated exceptional circumstances for the delay, including difficulties in obtaining legal advice and securing legal aid. The court also determined that the proposed grounds of appeal, which included alleged misdirections and non-directions by the trial judge, were arguable and warranted leave to appeal. The court concluded that the directions given to the jury by the trial judge provided grounds for apprehending a miscarriage of justice. Consequently, the applicant was granted leave to appeal against both his conviction and sentence.

The court ordered that the applicant be granted leave to appeal against his conviction and sentence. The extension of time for filing the appeal was also granted. The applicant was permitted to proceed with the appeal on the grounds as outlined in the amended grounds of appeal. The appeal was to be heard on its merits, with the court considering the arguments regarding the alleged misdirections and non-directions by the trial judge.

Orders

Orders of the court

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Background

Background to the litigation

Accordingly, in deciding whether an extension of time should be granted to the applicant within which to appeal, it is necessary to consider the proposed grounds and determine whether they disclose a reason for apprehending that a miscarriage of justice has occurred.Background: Before considering the matters set out in the amended grounds of appeal, it is necessary to have some regard to the history of the matter. The applicant was charged with five counts of unlawful sexual intercourse and one count of rape. He was found not guilty of one count of unlawful sexual intercourse but convicted of the alternative offence of indecent assault. He was found guilty with respect to the remaining charges. The dates on the information relating to those charges cover the period between about 1 February 1999 and 21 June 2002. In addition to the charged counts there were a number of uncharged acts alleged but not particularised. The complainant L was born in March 1992. The applicant commenced a de facto relationship with L’s mother in about May 1998. On 12 June 2002 the applicant moved out of the house occupied by L and thereafter there was no further opportunity for contact between the applicant and L. On 7 July 2002, L went to live with her father in Adelaide. On an unspecified date after she moved into her father’s home, L made the first complaint to her stepmother. In August 2002, L was interviewed by the police. On 10 September 2002, L was examined by Dr Woodard-Knight. On 26 September, the applicant was arrested. The first count related to an offence alleged to have occurred between 1 February 1999 and 30 April 1999 when L was about seven. It was alleged to have occurred at Whyalla and consisted of digital penetration of the vagina one morning while she was watching television in the lounge. It was said to have happened before the applicant and L’s mother were married in November of that year. There was no specificity concerning the date or the day of the week, but L said in evidence that both her mother and her older sister M, who was 16 at the time of the trial were in the house when this was said to have occurred. Both were still in bed in the morning. Count 2 on the information is a charge of rape. This is out of chronological order as it is alleged to have occurred after Count 3. It alleges an act of fellatio which was said to have occurred in the month of December 2000 at Kimba. It related to an occasion when L said the applicant tied her hands with rope and covered her eyes with a teatowel. It was said to have occurred when the applicant was making rope things for his trailer and it happened in the lounge room of the premises at Kimba not long after tea time. Count 3 was alleged to have occurred between 1 June and 9 August 1999, the latter date being that on which the applicant had rented premises at Kimba for the first time. It was said to have occurred at the rear of a mobile roadhouse at Kimba before they moved in the Railway Terrace residence. It was L’s recollection that when her mother came into the bedroom the applicant pretended he was reading a book, although both the applicant and his wife said that the applicant never read to L. L said that he rubbed her private part with his “willy”. Her mother was asleep on the lounge and the whole thing was interrupted when her mother knocked on the door.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Gray [2004] SASC 218

Most Recent Citation

R v Fyfe [2004] SASC 321

Cases citing this decision · 4 of 4 shown

BRADY v POLICE
[2022] SASC 114 Para 9

…or a question that justifies serious consideration, irrespective of the length of the delay. [1] R v Valesic (2018) 132 SASR 250, 257. [2] R v Gray [2004] SASC 218, [20]. The explanation for the delay…
R v Valesic
[2018] SASCFC 136 Para 5

…In 2004 in R v Gray , Nyland J held that the test postulated by Lander J was insufficiently stringent in one respect. Her Honour stated:[8] [8] [2004] SASC 218, [16]-[20]. Mr Hinton, who appeared for the respondent on the hearing of the present application, submitted however that to the extent that Lander J’s appr…
R v Jones
[2017] SASCFC 163 Para 24

…In 2004 in R v Gray , Nyland J held that the test postulated by Lander J was insufficiently stringent in one respect. Her Honour stated:[30] [30] [2004] SASC 218, [16]-[20]. Mr Hinton, who appeared for the respondent on the hearing of the present application, submitted however that to the extent that Lander J’s ap…
R v Fyfe
[2004] SASC 321 Para 15

…In R v Gray [2004] SASC 218 Nyland J dealt with the question of the merits of the proposed grounds of appeal, amongst other things, in considering whether to grant leave to appeal out of time. Her Honour said that something more than a reasonably arguable point is required when the application is out of time.…

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Cases cited in this decision · 17 of 17 shown

R v Armstrong
[2014] NSWSC 700 Para 12

…ppeal, or if the delay was otherwise caused, that on the merits the appeal would be likely to succeed ( R v Balchin (1974) 9 SASR 64 at 65; Reg v Armstrong (1963) 35 SASR 356 at 367). To put it another way, the court will ordinarily need to be persuaded, where the delay is significant, that there exists, by refusing to e…
R v Butler
[2012] HCATrans 196 Para 13

…matter, Lander J said (at 140): “In this application, it is said that the delay was due, at least in part, to the delay in obtaining legal aid. In R v Butler (1989) 44 A Crim R 215, the applicant for leave to appeal had been sentenced to three years imprisonment for a drug offence and twelve months imprisonment for…
Nudd v The Queen
[2006] HCA 9 Para 16

…upra at 65-6); R v Trotter[9] at 65; R v Armstrong[10] . [7] R v Balchin (1974) 9 SASR 64 [8] [1963] SASR 190 [9] (1979) 22 SASR 64 [10] [1983] 35 SASR 356…
R v Tanner
[2004] SADC 149 Para 19

…proof beyond reasonable doubt. Next, the jury had to be told how they could use the evidence and how they could not use the evidence: R v Dolan (1992) 58 SASR 501 at 503 King CJ. The jury had to be told the particular manner in which the evidence could be used. That could be done briefly, and along the lines indicate…
R v RWB
[2003] SASC 420 Para 9

…rimarily due to the failure to give an adequate Longman warning. [1] Longman v The Queen (1999) 168 CLR 79 [2] [2003] SASC 411 (18 December 2003) [3] [2003] SASC 420 (18 December 2003)…
R v BFB
[2003] SASC 411 Para 9

…ases, orders were made for a re-trial primarily due to the failure to give an adequate Longman warning. [1] Longman v The Queen (1999) 168 CLR 79 [2] [2003] SASC 411 (18 December 2003) [3] [2003] SASC 420 (18 December 2003)…
Doggett v the Queen
[2001] HCA 46 Para 11

…ence I will refer to this simply as a warning. The main cases are Crampton v The Queen [2000] HCA 60; (2001)206 CLR 161 and Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343. These decisions in turn have received extensive consideration in decisions of intermediate appellate courts in Australia. It appears t…
Ryan v The Queen
[2000] HCA 60 Para 11

…ed of the truth and accuracy of the evidence. For convenience I will refer to this simply as a warning. The main cases are Crampton v The Queen [2000] HCA 60; (2001)206 CLR 161 and Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343. These decisions in turn have received extensive consideration in decisions of…
Re Ruddock; Ex parte Reyes
[2000] HCA 66 Para 11

…ccuracy of the evidence. For convenience I will refer to this simply as a warning. The main cases are Crampton v The Queen [2000] HCA 60; (2001)206 CLR 161 and Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343. These decisions in turn have received extensive consideration in decisions of intermediate appel…
R v Trotter
[1999] NSWCCA 90 Para 16

…court at 191); R v Balchin ( supra at 65-6); R v Trotter[9] at 65; R v Armstrong[10] . [7] R v Balchin (1974) 9 SASR 64 [8] [1963] SASR 190 [9] (1979) 22 SASR 64 [10] [1983] 35 SASR 356…
Gikas v Police
[1999] SASC 139

…otter [1979] 22 SASR 64; Jackamarra v Krakouer [1998] 195 CLR 516; Crampton v The Queen (2000) 206 CLR 181; R v Nieterink (1999) 76 SASR 56, applied. Gikas v Police (1999) 202 LSJS 301, discussed. R v Butler (1989) 44 A Crim R 215, considered.…
Jackamarra v Krakouer
[1998] HCA 27 Para 17

…uld insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success.” [11] [1998] 195 CLR 516…
Longman v The Queen
[1989] HCA 60 Para 9

…cember 2003. In both cases, orders were made for a re-trial primarily due to the failure to give an adequate Longman warning. [1] Longman v The Queen (1999) 168 CLR 79 [2] [2003] SASC 411 (18 December 2003) [3] [2003] SASC 420 (18 December 2003)…
R v Nieterink
[1999] SASC 560 Para 19

…e of the potential for prejudicial misuse of evidence of other uncharged acts: see G (1996) 88 A Crim R 489 at 493-495 Callaway JA.” [15] (1999) 76 SASR 56…
Crampton v The Queen
[2000] HCA 6023

…3] SASR 190; R v Balchin (1974) 9 SASR 64; R v Armstrong (1963) 35 SASR 356; R v Trotter [1979] 22 SASR 64; Jackamarra v Krakouer [1998] 195 CLR 516; Crampton v The Queen (2000) 206 CLR 181; R v Nieterink (1999) 76 SASR 56, applied. Gikas v Police (1999) 202 LSJS 301, discussed. R v Butler (1989) 44 A Crim R 215, considered.…
[1911] AC 47
[1911] AC 47 Para 19

…ht have formed an indispensable link in reasoning to guilt, and for that reason would have to be established beyond reasonable doubt: cf R v Ball [1911] AC 47 and Gipp at 133-134 McHugh and Hayne JJ. My view is that to avoid confusing the jury, by referring to different standards of proof, the jury should have…
[1985] 1 WLR 942
[1985] 1 WLR 942 Para 17

…rakouer[11] in which Brennan CJ and McHugh J in a joint judgment (at 521) said: “Cases such as Palata (Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946) are therefore concerned with applications that seek to put at risk the substantive rights of the respondent. It is understandable that, where t…

Legislation cited in this decision · 2

Criminal Law Consolidation Act 1935 (SA)
352, 357(1), 357(2) 4 mentions (from Para 3)
Evidence Act 1929 (SA)
1 mention (from Para 11)