(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Nicholson)
3 June 2013
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - OTHER CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
The appellant appealed against her conviction for six counts of unlawful sexual intercourse contrary to s49(3) of the Criminal Law Consolidation Act 1935 following a trial by jury. On the prosecution case, the conduct giving rise to the charges occurred in the context of a sexual relationship between the appellant and the complainant who was either 14 or 15 years of age at the time the offences were committed. The appellant contends that the trial Judge, by misdirecting the jury as to burden of proof, caused a substantial miscarriage of justice. In particular it is contended that the judge erred by giving the jury a conventional Calides direction but without either modifying it by reference to, or in the alternative, giving an additional direction in the nature of a Liberato direction.
Held: appeal dismissed.
Per Nicholson J, Kelly and Peek JJ agreeing: (1) The trial judge did not err in the directions as to burden of proof in the manner complained of; (2) The giving of any Calides direction should be cautiously entered upon.
Per Peek J, Nicholson J agreeing: (3) In any criminal case, the primary focus must remain on the fundamental question: "Has the prosecution proven the guilt of the accused of the particular charge beyond reasonable doubt?" - a full Calides direction may be counter-productive and a direction making use of the third limb only may be more in keeping with a modern summing up.
[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.
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Details
AGLC
R v Lavery [2013] SASCFC 46
Case
[2013] SASCFC 46
Decision Date
CaseChat Overview and Summary
The appeal concerned the criminal conviction of Susan Lavery. The dispute arose from directions given by the trial judge regarding the burden of proof in a sexual offences trial. The appeal was heard by Kelly, Peek, and Nicholson JJ.
The legal issues before the court were whether the trial judge had erred in their directions concerning the burden of proof, specifically in relation to the use of a "Calides" direction. The court was also required to consider the appropriate form and placement of such directions in modern summing up.
The court held that the trial judge had not erred in their directions as to the burden of proof. However, Peek J, with whom Nicholson J agreed, suggested that the primary focus in any criminal case must remain on whether the prosecution has proven guilt beyond reasonable doubt. They noted that a full "Calides" direction could be counter-productive and that a direction utilising only the third limb of the "Calides" direction might be more appropriate in contemporary summing up. Nicholson J, agreeing with Kelly J, also cautioned that the giving of any "Calides" direction should be approached cautiously. The court's reasoning indicated that while the second limb of the "Calides" direction might be a needless distraction or even risk implying an accused must "persuade" the jury of innocence, the third limb, when presented in isolation and alongside standard directions on onus of proof, could offer comfort to a juror uncertain about the truth.
The appeal was dismissed.
Orders
Orders of the court
Held: appeal dismissed.
Per Nicholson J, Kelly and Peek JJ agreeing: (1) The trial judge did not err in the directions as to burden of proof in the manner complained of; (2) The giving of any Calides direction should be cautiously entered upon.
Per Peek J, Nicholson J agreeing: (3) In any criminal case, the primary focus must remain on the fundamental question: "Has the prosecution proven the guilt of the accused of the particular charge beyond reasonable doubt?" - a full Calides direction may be counter-productive and a direction making use of the third limb only may be more in keeping with a modern summing up.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
KELLY J
(dissent)
NICHOLSON J
I consider that a Calides direction may be counter-productive in such a case. It is not a question of the jurors being persuaded by the defendant’s evidence that he did not commit the six offences; indeed, in relation to four of the occasions, he has nothing but his denial which might of itself carry little persuasion. Rather, it is a matter of engaging in a more sophisticated analysis of the complainant’s evidence (along the lines, inter alia, that if the complainant is untruthful or unreliable on two of the counts, one may not be able to be satisfied beyond reasonable doubt that any of the counts are proven since all depend on her word alone).Conclusion With respect, Nicholson J’s point that a Calides direction is usually to be found at, or very near, the end of the summing up and that its “take home message” may be discordant with the rest of a modern summing up is well taken. I consider that the second limb direction of the Calides direction is, at best, a needless distraction to a careful consideration of the fundamental question above. At worst, it may create a risk of appearing to approve of a notion of an accused attempting to “persuade” the jury of his innocence, the reward for doing so being a verdict of not guilty (although, as Nicholson J correctly concludes, that risk did not materialise in the present case because of the overall content of the summing up). However, I do consider that a direction along the lines of the third limb (“unable to decide where the truth lies or who is telling the truth”) may usefully be retained, thus giving a degree of comfort to staunch Calides supporters. By taking the third limb away from the context of the first two limbs and placing it in close juxtaposition with correct modern directions, it has something to offer in that it explicitly conveys the correct answer to the juror who is asking himself or herself the question: “I just do not know who to believe – what do I do now?”. Thus, one may advantageously insert into the main directions as to onus of proof (which her Honour gave in standard form here) a further direction such as that in bold below; the directions given in the present case would appear thus:The accused, Susan Lavery, is presumed innocent until her guilt has been proven to your satisfaction, and as you have heard, the burden of proving the case against her lies wholly on the prosecution.In respect of each ingredient of each charge the prosecution bears the onus of proving that ingredient to you beyond reasonable doubt. Unless it does so, Ms Lavery is entitled to a verdict of not guilty on the charge you are considering. It is not enough that the prosecution shows a suspicion of guilt or even shows that Ms Lavery is probably guilty. She is not to be convicted unless her guilt has been proven beyond reasonable doubt.Ms Lavery does not have to prove anything. If she puts forward a defence she does not have to prove it. The prosecution must disprove it. The theme to bear in mind at all times is that the burden always lies on the prosecution.It follows that if after full and careful consideration, you are unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving its case beyond reasonable doubt and your verdict would be not guilty.(Emphasis added)