R v Lavery

[2013] SASCFC 46

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LAVERY

[2013] SASCFC 46

Judgment of The Court of Criminal Appeal

(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.

Criminal Law Consolidation Act 1935 s49, s353, s354; Controlled Substances Act 1984 s33, referred to.
R v Calides (1983) 34 SASR 355; Liberato v The Queen (1985) 159 CLR 507; Azarian v The State of Western Australia [2007] WASCA 249; R v Smith [2008] SASC 135; R v Molloy (2008) 102 SASR 452; Salmon v The Queen [2001] WASCA 270; Leyshon v The State of Western Australia [2006] WASCA 132; Koushappis v The State of Western Australia [2007] WASCA 26; Police v HM [2007] NTMC 60; Balchin v Bowman [2010] NTMC 3; O’Brien v AK [2006] NTMC 96; R v Wark [2003] ACTSC 30; Calenzuela v Bretherton [2001] ACTSC 9; Maher v Trenerry [1997] NTSC 145; Lewis v John Holland Pty Ltd [2003] NTSC 118; R v Dwyer [1999] NSWCCA 47; TPC v The Vales Wine Co Pty Ltd and Ors [1996] FCA 1463; R v Daniel [2010] SASCFC 62; Murray v R (2002) 211 CLR 193; R v Woods (2009) 102 SASR 422; R v Baslis [2011] SASCFC 160; R v Smith [2008] SASC 135; R v Molloy (2008) 102 SASR 452, considered.

R v LAVERY
[2013] SASCFC 46

Court of Criminal Appeal:  Kelly, Peek, Nicholson JJ

KELLY J.

1. I agree that the appeal should be dismissed.  I agree with the reasons of Nicholson J.

   PEEK J.

2. I have read the draft judgment of Nicholson J.  I entirely agree with his Honour’s reasons and I would dismiss the appeal.  I wish only to add a further comment concerning the so called “Calides[1] direction”.

   [1]    R v Calides (1983) 34 SASR 355.

   The fundamental question for the jury

3. In any criminal case, the primary focus should always remain squarely on the prosecution evidence.  The fundamental question for the jury is: “Has the prosecution proven the guilt of the accused of the particular charge beyond reasonable doubt?”.

4. The summing up must clearly convey to the jury that their verdict should not be based upon the relative persuasiveness of the complainant and the accused but rather should be based upon a consideration of all of the evidence in the case; and that[2] a verdict of guilty requires both the acceptance of the complainant’s evidence, and the rejection of the accused’s evidence, beyond reasonable doubt.

   The three limb Calides direction

   [2]    In a case where the accused gives evidence.

5. In my view, although there is some value in the third limb of the directions taken by itself, a real question arises as to the utility of the first two limbs in any type of case.  I will explain why I say that by reference to the Calides direction which appears in the present summing up at paragraph [90][3] and, for ease of reference, I number the three limbs one to three in bold as follows:

   At the end of your deliberations on any particular count, you might be left in any one of three situations, I suggest: 1. you may be satisfied beyond reasonable doubt of the prosecution evidence, in which case your verdict would be guilty; 2. alternatively, you might be persuaded by Ms Lavery’s evidence, in which case your verdict would be not guilty; 3. a further possibility is that after full and careful consideration, you will be unable to decide where the truth lies or who is telling the truth, and in that case, the prosecution will have fallen short of proving its case beyond reasonable doubt and again, your verdict would be not guilty.   (Numbers in emphasis added)

   [3]    Summing up AB160.

6. The rationale of the three limb Calides direction appears to be that in cases where the prosecution is solely reliant upon the evidence of a complainant, and the accused is solely reliant upon his evidence of denial, and the respective versions are starkly different, the jury might assume that it is appropriate to make a simple “choice” between the two versions.

7. However, as Nicholson J explains, there has developed a practice amongst some Judges of giving a Calides direction in a much broader range of cases than that.  Indeed, while cases of “oath against oath” with no witness present at the scene are often encountered, it is rather unusual for such cases to be determined by reference only to the bare conflicting accounts of a complainant and the accused.   There will usually be some other material for the jury to consider when assessing those conflicting accounts.  One obvious example would be where the making of prior inconsistent statements by the complainant is established in cross-examination.  Such evidence does not affect the persuasiveness of the evidence of the accused but it may be very important when addressing the fundamental question referred to above.

8. Take another obvious example, a little different from the facts of the present case.  Say a complainant gives evidence of six counts of sexual assault having taken place a number of years before; her evidence as to times, dates and places is very definite, her evidence is plausible and her appearance and demeanour is persuasive.  However, say the accused then denies on oath all six incidents and gives evidence that in relation to one count, the house in which the assault is alleged to have occurred had not yet been built by the relevant date, and in relation to another count, he was overseas at the relevant time; and say that although his appearance and demeanour is not as persuasive as that of the complainant, he does produce unassailable documentation and witnesses to prove both of those two matters (but has no evidence apart from his denial in relation to the other four counts).

9. 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

10. 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).

11. 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?”.

12. 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)

13. I would conclude that if it is thought that a case does have the potential of presenting a stark choice between two opposing bodies of evidence such that a Calides type direction might be thought useful, it would be far better to repeat at the end of the summing up a standard direction along the lines above together with the bold addition (being the third Calides alternative only).  Naturally, all directions should be specifically tailored to the particular facts and circumstances of the case under consideration.

    NICHOLSON J.

    Introduction    

14. The appellant appeals against her convictions 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.

15. The appellant was the complainant’s softball coach.  The sexual activity particularised for the charges upon which guilty verdicts were returned comprised two acts of the appellant inserting a finger into the vagina of the complainant, two acts of the appellant performing cunnilingus upon the complainant, one act of the complainant inserting a finger into the vagina of the appellant and one act of the complainant performing cunnilingus on the appellant.

16. Sub-section 49(3) at the time of the alleged offending was in the following terms:[4]

    A person who has sexual intercourse with a person under the age of 17 years is guilty of an offence. 

    Maximum penalty:  imprisonment for 10 years.

    The appellant was charged with nine counts of unlawful sexual intercourse said to have arisen out of four separate incidents and to have been committed against a background of uncharged acts.  The complainant did not give evidence in support of count 4 (an alleged act of digital penetration by the complainant said to have occurred at the appellant’s home) and, as directed, the jury acquitted the appellant of that count.  Notwithstanding that the complainant gave some evidence in support of count 1 (an allegation of digital penetration by the appellant said to have occurred in the bed of the appellant) and count 5 (an allegation of cunnilingus said to have been performed by the complainant at the appellant’s home) the jury returned not guilty verdicts with respect to counts 1 and 5.  It is of note, in this respect, that count 5 was said to have taken place on the same occasion and as part of the same “transaction” as count 4 as to which there was a directed acquittal on the basis that there was no evidence given that could support this charge.

    [4]    The terms of the sub-section have not been amended since and remain in the same form today.

17. The complainant gave evidence describing the background to and the nature of her relationship with the appellant and, in particular, describing the nature of the sexual conduct which she said took place between them.  The appellant also gave evidence.  She acknowledged that there had been a relationship between the two, initially confined to the appellant’s role as softball coach of the team of which the complainant was a member but which developed to the extent that the appellant assumed a role as friend and confidant.  According to the appellant, the complainant was experiencing significant relationship difficulties with her parents and her siblings as to which she confided in the appellant and sought the appellant’s advice.  The appellant maintained throughout her evidence that at no time did the relationship rise above one of friendship and support and at no time was there any sexual conduct of any nature.  Whilst the case was essentially one involving evidence on oath pitched against evidence on oath, there was some other evidence of a limited nature that is not the subject of any complaint by the appellant and from which the existence of a sexual relationship between the appellant and the complainant might have been inferred or which might have been taken to have corroborated the complainant’s evidence that a sexual relationship had existed.[5]

    [5]    This evidence related to various text messages said to have been observed on the complainant’s phone purportedly sent by the appellant which might be seen as sexually explicit and might be interpreted as describing sexual conduct which had occurred in the past or in which the appellant wished to engage in the future. 

18. In the document headed “Perfected grounds of appeal” and filed following the granting of leave to appeal on 13 February 2013, the appellant raised three grounds of appeal.[6]  By ground 1 the appellant asserted that the various verdicts of guilty were unsafe and unsatisfactory and against the weight of the evidence; by ground 2, the appellant complained that the trial Judge failed to adequately direct the jury as to the manner in which it ought to assess the complainant’s evidence; and by ground 3, the appellant complained that the trial Judge erred in her directions to the jury as to the burden of proof in that the directions on this topic were not in accordance with the law.  In the appellant’s outline of argument for and at the hearing of the appeal, the Court was advised that the appellant had abandoned the first two grounds and sought to press only ground 3. 

    [6]    Appeal Book p13.

    The appellant’s argument

19. The ground of appeal relied on by the appellant is in the following terms.

    The learned trial Judge erred by directing the jury as to the burden of proof rather than in accordance with the law. 

    Particulars

    (i)Her Honour failed to direct the Jury that a rejection of the accused [sic] evidence did not equate to proof beyond reasonable doubt of the Crown case (Summing Up, paragraph 90).

    (ii)Her Honour failed to direct the Jury that even if they did reject the accused [sic] evidence they nonetheless had to consider whether the complainant’s evidence was sufficient to satisfy them beyond reasonable doubt of the appellant’s guilt (Summing Up, paragraph 90).

    (iii)By directing the Jury that the verdict would be not guilty in the event that the Jury were “persuaded by [the appellant’s] evidence” implied that the appellant had an onus to prove that her evidence was true (Summing Up, paragraph 90).

20. The appellant argues that, in the circumstances of this case, the Judge erred by directing the jury in the terms of a conventional “Calides” direction but without either modifying this direction by reference to or in the alternative giving an additional direction in the terms of what is often described as a “Liberato” direction.  In due course, I will identify what is typically understood by the shorthand terms “Calides” direction and “Liberato” direction. 

21. The appellant’s criticisms focus on paragraph 90 of the summing up.[7]  Paragraph 90 should be read in the context of the summing up as a whole but, in particular, in conjunction with paragraphs 88 and 89.  Paragraphs 88 to 90 occurred at the end of the summing up.  They comprised a re-visitation by the Judge of the question of onus and standard of proof after her Honour had engaged in a detailed summary of the evidence and the final addresses of counsel.  Paragraphs 88 to 90 were the last substantive directions received by the jury before it retired. 

    As I have said, matters of fact are always for you.  You may think in this case there is no particular difficulty about any of the legal elements or ingredients of the charged offence of unlawful sexual intercourse.  Rather, you might think that the central issue in this case is whether the conduct that is said to make up each offence occurred at all.  It seems to me, although it is a matter for you, that the question for you will be: has the prosecution proved beyond reasonable doubt that the conduct alleged in relation to each charge occurred at all.

    In relation to each charge, you have before you two opposing bodies of evidence.  [The complainant] on the one hand alleges that [the appellant] committed certain sexual acts, and [the appellant] on the other hand saying that she did not.  They are in direct opposition to each other and they cannot stand together.  It is your task to consider all of the evidence and the arguments made to you on each side bearing on your evaluation of that evidence.

    At the end of your deliberations on any particular count, you might be left in any one of three situations, I suggest:  you may be satisfied beyond reasonable doubt of the prosecution evidence, in which case your verdict would be guilty; alternatively, you might be persuaded by [the appellant’s] evidence, in which case your verdict would be not guilty; a further possibility is that after full and careful consideration, you will be unable to decide where the truth lies or who is telling the truth, and in that case, the prosecution will have fallen short of proving its case beyond reasonable doubt and again, your verdict would be not guilty.

    [7]    AB at p160.

1. Paragraph 90 is a common form of direction often provided to juries in this State in cases of “oath against oath”.  Its terms are very close to, although do not completely replicate, the language used by Wells J when suggesting an appropriate form of direction in R v Calides.[8]  I will return to the decision in R v Calides in due course. 

   [8] (1983) 34 SASR 355 at 358-9.

2. Whilst the appellant’s complaint focussed on paragraph 90 there was no complaint about the terms of paragraph 90 per se,[9] nor with the more general and standard form directions of law provided earlier and prior to her Honour’s lengthy treatment of the evidence.  Counsel described the Judge’s treatment of the evidence in respect of each count as “very obviously a careful analysis of the evidence”.  However, counsel drew the Court’s attention to a particular feature of the analysis.

   Her Honour dealt with it by compartmentalising the issues with the complainant on the one hand and the … appellant on the other, so that each count is looked at by virtue of firstly what the complainant and other Crown witnesses may have said about the particular count and secondly, what the appellant said as part of her case.

   .  .  .  .

   The evidence in respect of each count was dealt with by her Honour, not quite like a comparison but by, … a bullet pointing of the prosecution case and then straight after, a bullet point presentation of how [the appellant] dealt with that particular count. …  It’s with that structure in mind – and I don’t say there is anything wrong with the structure,[10] the problem is it highlights what I say is the main difficulty with the very end of the summing up in para 90 and it’s the structure that her Honour adopted that makes the summing up flawed.

   [9]    Apart from the use of the word “persuaded”, see below.

   [10]   I interpolate here that the appellate authorities are replete with observations to the effect that trial judges should strive to deal with the evidence in a way that relates it to the issues before the jury rather than as one undifferentiated summary of the evidence.

3. The appellant’s central point is that whilst the structure of the summing up was “on its own perfectly okay”, it invited the jury to compare the respective accounts and to ask the improper question “who is to be believed?”  Further, the summing up fell short of adequately addressing the risk that this would give rise to a serious miscarriage of justice.  Counsel for the appellant also complained of the use, in paragraph 90, of the word “persuaded” with reference to the appellant’s evidence.

   The Summing Up

4. Having identified the impugned direction(s) it will be helpful to summarise the summing up itself, being the context in which those impugned directions were given and were to be understood by the jury.

5. The summing up was split over two days.  Late in the afternoon of the first day the Judge commenced her summing up and provided the jury with relatively common form directions of law including: as to respective roles, onus and standard of proof, the elements of the offence of unlawful sexual intercourse, and the required approach to evidence of uncharged acts.  Upon resuming the next morning, the Judge turned almost immediately to a lengthy summary of the evidence, a summary of counsels’ addresses, and the directions in accordance with paragraphs 88 to 90, following which her Honour asked the jury to retire to consider its verdicts. 

6. In addition to paragraphs 88 to 90, the jury was referred to the prosecution’s onus of proof as requiring satisfaction beyond reasonable doubt on three further occasions during the second part of the summing up.[11] 

   [11]   Paragraphs 40 at AB p150, 62 at AB 153 and 86 at AB 159; the latter being as part of her Honour’s summary of defence counsel’s address..

7. The structure of the summing up was as follows: 

   (i)conventional directions concerning the role of the Judge, the role of counsel and the duty and role of jurors;

   (ii)directions concerning the burden of proof;

   (iii)directions designed to assist the jury in its task of assessing the witnesses and the evidence in general;

   (iv)directions concerning the elements of the offence of unlawful sexual intercourse, the nature and relevance of the pleaded particulars for each count and a brief review of the allegations in the complainant’s evidence relevant to each count;

   (v)a direction as to the expanded definition given, at law, to the term “sexual intercourse”;

   (vi)a direction as to the irrelevance of any question of consent;

   (vii)a direction as to the importance of considering each count separately and on its own merits;

   (viii)an extended direction concerning the approach to be taken with respect to the evidence of uncharged acts and the use to which that evidence might be put if satisfied beyond reasonable doubt that any alleged uncharged act occurred;

   (ix)an order for the overnight adjournment;

   (x)a lengthy summary of the evidence both in general and specifically directed at each count (extending for some 70 or more paragraphs of the summing up);

   (xi)a direction concerning the initial or first complaint made by the complainant (given as part of the evidence discussion);

   (xii)a summary of counsels’ addresses; and, finally,

   (xiii)paragraphs 88 to 90.

8. During the first part of the summing up the Judge made the following direct references to the onus and standard of proof.

   (i)The accused … is presumed innocent until her guilt has been proven to your satisfaction, and as you have heard,[12] the burden of proving the case against her lies wholly on the prosecution.[13]

   [12]   This can only have been a reference to a time earlier in the trial, probably during defence counsel’s address.

   [13]   Paragraph 11, AB at p135.

   (ii)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, [the appellant] 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 [the appellant] is probably guilty.  She is not to be convicted unless her guilt has been proven beyond reasonable doubt.[14]

   [14]   Paragraph 12, AB at p136.

   (iii)[The appellant] 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.[15]

   [15]   Paragraph 13, AB at p136.

   (iv)The words “beyond reasonable doubt” are three plain English words and they mean exactly what they say.  A reasonable doubt is a doubt that reasonably arises after consideration by you of all of the evidence that you have heard and it is a doubt which you, as reasonable members of the community, are prepared to entertain.[16]

   [16]   Paragraph 14, AB at p136.

   (v)If at the end of the day, you are left with a reasonable doubt as to [the appellant’s] guilt then you must give her the benefit of that doubt and find her not guilty of the charge that you are then considering.[17]

   [17]   Paragraph 15, AB at p136.

   (vi)At all times the prosecution bears the onus of proof beyond reasonable doubt.  The prosecution must satisfy you beyond reasonable doubt that [the complainant] is telling you the truth in respect of each alleged offence.[18] [This was given in the context of and after providing a direction in unexceptional terms concerning the lack of any evidence of motive in the complainant to make a false allegation].

   [18]   Paragraph 23, AB at p137.

   (vii)I should also say something about [the appellant] giving evidence in the court before you.  She was not obliged to do so.  She could have remained silent in answer to the charges, leaving the prosecution to discharge its onus of satisfying you of all of the elements of the offences.  She did not do that.  She gave evidence.  She took to the witness box, like any other witness, and she subjected herself to cross-examination.  Her evidence should be assessed in the same way, scrutinised and evaluated by you in the same way as any other witness in this case, and you should bring a fair and impartial judgment to that.[19]

   [19]   Paragraph 24, AB at p137.

   I interpolate here that, whilst this direction also was in conventional terms insofar as it went, it did not include what often is included; a further injunction to the effect that the jury is to understand that by going into the witness box and giving evidence an accused does not assume any onus of proof which at all times rests with the prosecution.

   (viii)You have heard evidence about [the complainant’s] date of birth… she also gave evidence about her approximate age at the time of each charged offence.  You must be satisfied of that evidence beyond reasonable doubt.[20]

   (ix)[In the context of a direction concerning the need to consider each count separately] but the important thing is that you look at each individual charge and whether or not the prosecution has proven the elements of each offence separately considered beyond reasonable doubt.[21]

   (x)[In the context of a direction concerning uncharged acts] you can only use evidence of uncharged acts if you are satisfied that they occurred and you have to be satisfied of that beyond reasonable doubt.[22]

   (xi)It is for you ladies and gentlemen to decide whether you accept beyond reasonable doubt that any or all of these uncharged acts took place and if you do, then you must use the evidence in the way that I have described.[23]

   During the second part of the summing up the trial Judge made the following direct references to the onus and standard of proof.

   (xii)[In the context of a discussion of the evidence concerning count 1] they are matters for you to consider in the context of whether the prosecution has proved this count beyond reasonable doubt.[24]

   (xiii)[In the context of the conflicting evidence given by the appellant and the complainant concerning exhibit P1, a text message] it is for you to decide whether you are satisfied beyond reasonable doubt that this message is a sexual message bearing the meaning that [the complainant] suggests.[25]

   (xiv)Finally, [defence counsel] invited you to carefully scrutinise the prosecution evidence on each charge, bearing in mind that it is for the prosecution to prove its case.  Speculation about the nature of [the complainant’s] relationship with [the appellant] is not enough; you must be satisfied beyond reasonable doubt that the prosecution has proven its case against [the appellant].[26]

   (xv)Paragraphs 88 to 90 of the second part of the summing up, set out earlier in these reasons.[27]

   [20]   Paragraph 31, AB at p139.

   [21]   Paragraph 43, AB at p140.

   [22]   Paragraph 44, AB at p140.

   [23]   Paragraph 49, AB at p141.

   [24]   Paragraph 40, AB at p150.  It should be noted that the paragraph numbering for the summing up in the Appeal Book starts again where the second part of the summing up is reproduced.  Part one of the summing up is at pages 134-142 and consists of paragraphs 1-58 and part two of the summing up is at page 143-162 and consists of paragraphs 1-110.

   [25]   Paragraph 62, AB at p153.

   [26]   Paragraph 86, AB at p159.

   [27]   AB at p159-160.

9. During the summing up the Judge provided the jury with other directions which, whilst not directly bearing on the onus of proof resting at all times with the prosecution, can be seen as underscoring the heavy burden assumed by the prosecution.

   (i)A person who has been charged with very serious offences such as these is not to be convicted on insufficient or doubtful evidence and so it is important as jurors that you consider the evidence very carefully.[28]

   (ii)In this case you have to assess the reliability and credibility of a number of witnesses, but especially, I suggest, [the complainant].[29]

   (iii)The prosecution case rests almost entirely, you might think, on the evidence of [the complainant].  In effect, it is her word against that of [the appellant].  So you need to subject her evidence to some very careful scrutiny.  You must be satisfied that she is both truthful and reliable before you could convict [the appellant] of the charged offences.[30]

   I interpolate here that three paragraphs earlier in the summing up the Judge told the jury that if during the course of her remarks she said that the jury should be “satisfied” of something they should understand that this would always mean beyond reasonable doubt.[31]

   (iv)There is no evidence to enable you to consider whether [the complainant] had a particular reason for making false allegations against [the appellant].  However, the absence of a motive to lie does not strengthen the prosecution case; it is neutral.  That being so, it would be wrong to conclude that because there is no apparent reason for her to lie, [the complainant] must be telling the truth.  Lies, I am sure you have all experienced in daily life can be told for no apparent reason.  Crucially, it is not for [the appellant] to provide a motive for [the complainant] to lie.[32] 

   (v)The element that will require your serious consideration is whether the sexual intercourse took place as the prosecution alleges, on each of the eight remaining counts.[33]

   (vi)In a sense the more evidence you have about the interaction between [the complainant] and [the appellant] the better the opportunity you have to evaluate [the complainant’s] evidence and to determine to what extent, if any, you are prepared to rely upon it.  In that way, the whole of the sequence of events throws light on the nature of the relationship that [the complainant] claims existed between her and [the appellant].[34]  [This was given in the context of the direction concerning uncharged acts].

   (vii)Evidence of the uncharged sexual acts or incidents are available to you as material that might assist you in concluding that her [the complainant’s] evidence is reliable.  Alternatively, it may assist the defence in showing inconsistency, or unreliability, or inherent improbability in her [the complainant’s] evidence, thereby raising doubts about the charges.[35]

   (viii)The complainant denied that she made the allegation up.  She told you that she was confused with another time.  What you make of this, particularly as to [the complainant’s] reliability, is a matter for you, bearing in mind what I have said to you about prior inconsistent statements.[36]

   (ix)So you may wish to consider whether this failure to give evidence about a charged allegation and the giving of evidence about uncharged allegations, effects your view of [the complainant’s] reliability and honesty.[37]

   [28]   Paragraph 6, AB at p135.

   [29]   Paragraph 18, AB at p136.

   [30]   Paragraph 19, AB at p137.

   [31]   Paragraph 16, AB at p136.

   [32]   Paragraphs 22 and 23, AB at p137.

   [33]   Paragraph 32, AB at p139.

   [34]   Paragraph 45, AB at p140.

   [35]   Paragraph 47, AB at p141.

   [36]   Paragraph 42, AB at p150.

   [37]   Paragraph 51, AB at p151-152.

   The appellant’s complaint further explained

10. In essence, the appellant complains of the failure by the Judge to observe the following injunction of Brennan J (with whom Deane J agreed) in Liberato v The Queen.[38]

    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. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is "a gross simplification”.

    [38] [1985] HCA 66; (1985) 159 CLR 507 at 515.

11. Liberato concerned an application for special leave to appeal to the High Court by various applicants following their convictions in this Court for rape.  The majority[39] refused leave whereas a minority[40] would have granted leave and would have allowed the appeal and ordered a re-trial.

    [39]   Mason ACJ, Wilson and Dawson JJ.

    [40]   Brennan and Deane JJ.

12. This dictum of Brennan J, and notwithstanding that his Honour was in dissent, has been repeatedly applied by trial judges and endorsed by intermediate courts of appeal.

13. Nevertheless, it would seem that an omission to direct in the way advocated by Brennan J (and Deane J) as just set out did not sufficiently trouble the majority on the facts of the case before it. The majority was not prepared to review the Court of Criminal Appeal’s decision to dismiss the appeals following its application of the proviso in s353(1) of the Criminal Law Consolidation Act 1935 and notwithstanding the presence of various identified defects in the summing up.  It cannot be, and notwithstanding the strong language used by Brennan J (“must”), that in every case of oath against oath the failure to give a Liberato type direction, that is, in the terms stated by Brennan J, will result in a successful appeal.[41]

    [41]   Various authorities have made the point that or have been decided on the basis that a so called Liberato direction is not required as a matter of law in every case of oath against oath, see, for example, R v Smith [2008] SASC 135 at [11]-[12]; R v Molloy (2008) 102 SASR 452 at [4]-[5]; Azarian v The State of Western Australia [2007] WASCA 249 at [110]; Salmon v The Queen [2001] WASCA 270; Leyshon v The State of Western Australia [2006] WASCA 132; Koushappis v The State of Western Australia [2007] WASCA 26.

14. In this respect, it is necessary to appreciate the purpose behind a Liberato type direction.  Its purpose has been encapsulated by Pullin JA in Azarian v The State of Western Australia.[42]

    The Liberato direction is designed to prevent the jury falling into error by jumping to the conclusion that the charge has been proved if they do not believe an accused when there is a contest between an accused an a prosecution witness.  The direction informs the jury that the task of deciding which witness they will believe is separate from the task of deciding whether or not all of the elements of the charge have been proved beyond reasonable doubt.[43]

    Ultimately, the question in the present case is whether or not the Judge, by the directions she did give, satisfied the requirements of and achieved the effect of the Liberato injunction.

    [42] [2007] WASCA 249 at [11].

    [43]   See also Leyshon v The State of Western Australia [2006] WASCA 132 at [13]-[14] (Steytler P).

15. The appellant submits that not only was the failure by the Judge to give a Liberato direction an error which, in the circumstances, had the potential to be productive of a substantial miscarriage of justice, it was exacerbated by her Honour leaving the jury with a Calides type direction (paragraph 90) at the end of the summing up.

16. Paragraph 90 of the summing up is in terms materially indistinguishable from those advocated by Wells J in R v Calides.[44]  The appellant has raised no criticism about the terms of paragraph 90 itself.  Rather, the appellant’s complaint is that the Judge, at a crucial time in the summing up, failed to clearly state the Liberato injunction that mere positive rejection of the appellant’s evidence would not be sufficient to establish guilt.  The jury should have been directed that even if it were to positively reject the appellant’s evidence it still had to specifically satisfy itself that the prosecution evidence which it were to accept served to prove the elements of the offence under consideration beyond reasonable doubt. 

    Some general observations concerning the Calides direction 

    [44] (1983) 34 SASR 355 at 358-9.

1. The Calides direction, in the terms advocated by Wells J, is as follows.[45] 

   As the former Chief Justice, Sir Mellis Napier, used to say many times in this Criminal Court, [in cases where there are two versions of events] there are really , for all practical purposes, three possibilities:  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 a third possibility, which must never be overlooked, and that is that the jury, after 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.

   A direction in this form appears to be a creature almost peculiar to the jurisprudence of this State.  I have been unable to locate any reported decision interstate that has either used this direction or affirmed its use by a trial Judge apart from in the Northern Territory Magistrates Court.[46]  Nevertheless, it has, perhaps somewhat routinely, been used by trial judges in this State for many years.  A form of the direction is in the benchbook available to trial judges in this State.  As I have said, paragraph 90 of the summing up does not precisely replicate, but it does contain all of the elements of the direction suggested by Wells J and as provided for in the benchbook.[47]

   [45] (1983) 34 SASR 355 at 358.

   [46]   An search of all Australian case law databases for reference to “Calides” produced 110 results.  Only a handful of non-South Australian authorities referred to the Calides decision with reference to burden of proof issues.  R v Calides is regularly cited interstate on the question of the relevance at appeal of counsel’s failure to object at trial to what is later asserted to be an error in the summing up.  Of those authorities that referred to Calides in the burden of proof context nearly all merely cited it with approval as a proper statement of general principle.  Only on occasion in the Northern Territory Magistrate’s Court has the so called Calides direction itself been employed.  See generally, Police v HM [2007] NTMC 60; Balchin v Bowman [2010] NTMC 3; O’Brien v AK [2006] NTMC 96; R v Wark [2003] ACTSC 30; Calenzuela v Bretherton [2001] ACTSC 9; Maher v Trenerry [1997] NTSC 145; Lewis v John Holland Pty Ltd [2003] NTSC 118; R v Dwyer [1999] NSWCCA 47; TPC v The Vales Wine Co Pty Ltd and Ors [1996] FCA 1463.

   [47]   The benchbook direction is in the following terms and comes with an important “Note” of clarification.

   Here you have before you two opposing bodies of evidence.  They are in direct opposition to each other.  They cannot stand together.  It is your task to consider all the arguments made to you on each side bearing on the evaluation of the evidence.  At the end of your deliberations you might be left in any one of three situations.  You may be satisfied beyond reasonable doubt of the prosecution evidence, in which case your verdict will be guilty.  Alternatively, you might be persuaded by the accused’s evidence, in which case your verdict will be not guilty.  A further possibility is that after full and careful consideration you will be unable to decide where the truth lies, or who is telling the truth.  In that event the prosecution will have fallen short of proving its case beyond reasonable doubt and again, your verdict would be not guilty.

   NOTE:

   Such a direction is only required where, because of the nature of the case, the jury has been instructed that its role is to “decide where the truth lies” or to “decide who is telling the truth” (R v Calides (11983) 34 SASR 355) or, where the summing up is otherwise framed in terms which invite the jury to make a choice between the two opposing bodies of evidence (Whittingham (1988) 49 SASR 67) AND the balance of the directions fail to make it clear that the answer to any of those questions, if adverse to the accused, are not to be taken as concluding the ultimate issue beyond reasonable doubt: Liberato v The Queen (1985) 159 CLR 507 at 515. That is, as long as the directions as a whole do not convey to the jury that the mere preference for one version over another is sufficient to discharge the onus of proof, then the Calides direction will not be needed.  The Calides direction is only another way of expressing the application of the onus and standard of proof to a particular factual contest.

2. Paragraph 90 when read carefully (or in the case of a jury carefully listened to and remembered) does logically and correctly cover the field of possible approaches to the evidence.  It is not an incorrect description of the jury’s task.  However, I am troubled as to the extent to which such a formulation will positively assist a jury and I am concerned that, if used uncritically, it might on occasion be productive of confusion in the minds of some jury members.

   (i)The Calides direction, as used in this State, often comes near the very end of the summing up and often as the last substantive direction heard by the jury.  As such, it presents as a summary of or a final “take home message” about the onus and standard of proof.

   (ii)It is often separated by numerous other directions of law and the judge’s discussion of the evidence and the addresses of counsel, from the earlier given more specific directions about onus and standard of proof.  This can have the effect of emphasising the “take home message” nature of the Calides direction.

   (iii)To the extent that it presents as a summary of earlier directions or poses as an alternative, but similarly correct, approach to the onus and standard of proof, it uses language that often will be different and unfamiliar.  To this point a jury ordinarily will (or should) have been directed in terms of the prosecution’s obligation to prove each element of an offence beyond reasonable doubt; the jury may have been introduced to the issue of whether a defence contention might be seen as being a reasonable possibility, by way of the antonym to proof beyond reasonable doubt.  By the end of the summing up, a jury should have in mind two mutually exclusive alternatives; has the prosecution proved guilt beyond reasonable doubt or has it failed to prove guilt beyond reasonable doubt.  However, where the Calides  formulation is employed at the end of the summing up, the jury is introduced to and left with three possibilities in language that often will not mirror earlier directions.

   (iv)One of the three possibilities or “situations” introduces what often will be a new notion of being “persuaded[48] by [the appellant’s] evidence”.  Taken in isolation this risks a juror asking themselves an entirely inappropriate question along the lines – given the two diametrically opposed versions in the evidence, of whose version am I persuaded?  Of course, this second “situation” is not to be taken in isolation and when understood in its full context (for example, certainly paragraph 90 but also paragraphs 88 and 89 of the summing up in this case) it ought not provoke such a question.  However, this masks an assumption that each juror will be able to understand and retain an understanding of the complex interrelationship between the three “situations” orally described.  The appellant, here, submits that this risk, inherent in the use of the word “persuade” with reference to the appellant’s evidence, is exacerbated by the lack of a Liberato type direction in clear terms and given the structure of the Judge’s analysis of the evidence (as earlier discussed).

   (v)Of course an accused never has to go so far as causing the jury to be “persuaded” or “perfectly satisfied” of their account.  Ordinarily,[49] a reasonable possibility that the accused’s account is correct will be sufficient to defeat the charge.  If this second Calides “possibility” or “situation” were to be couched in terms of “reasonable possibility” there would be no need to proceed with the third possibility or situation.  It would become otiose.  Whilst the Calides tri-partite classification is literally or logically apposite, the question arises whether its purpose can be better or more safely achieved in other ways.

   (vi)The third possibility or “situation” also may involve new and unfamiliar language in this context of onus and standard of proof.  Often it will be the first time in the summing up that the jury will have been introduced, expressly, to the question of deciding “where the truth lies” or “who is telling the truth”.  Again, this might be seen as having the potential to provoke a similar question as in (iv) above.  Again, the appellant argues that this risk is exacerbated by the lack of a Liberato type direction, given the structure of the Judge’s analysis of the evidence.

   [48]   Wells J in Calides itself used the phrase “perfectly satisfied” in this context.  The benchbook formulation from which the Judge’s paragraph 90 appears to have been formulated uses the term “persuaded”.

   [49] Leaving aside, for example, statutory offences which raise a presumption and cast on the accused an onus to rebut the presumption, see for example s33 of the Controlled Substances Act 1984.

3. In my view, the giving of a Calides direction should be cautiously entered upon and only after carefully crafting it to fit with the summing up as a whole including, in particular, other directions given concerning onus and standard of proof.  The note in the benchbook version,[50] if attended to will operate to confine its use significantly.  It should not, as sometimes occurs, simply be uncritically tacked on at the end of a summing up as some sort of final “fail safe” explanation of the jury’s task.

   [50]   See fn 47 above.

   Disposition of the Appeal

4. The powers of this Court when hearing an appeal against conviction essentially derive from s353 and s354 of the Criminal Law Consolidation Act 1935. Only s353(1) is of relevance to the present case. It provides as follows.

   The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

5. There is no challenge to the jury’s verdict on the basis of the first limb of s353(1). Neither can it be said that the second limb – a wrong decision on any question of law – has been engaged. The appellant’s case is that the Judge by misdirecting the jury as to the burden of proof caused a miscarriage of justice. The first question to arise is whether or not there was a misdirection of the jury.

6. In R v Daniel,[51] a case upon which the appellant relied, Sulan J (with whom David J agreed), reviewed a number of recent authorities which have had to consider trial judge directions concerning the burden of proof in cases of oath against oath.  In Daniel, as in Liberato, the evidentiary contest raised a more complex environment than was before the jury in the present case.  Both arose out of a situation involving social interaction where alcohol in significant quantities was consumed.  In both, the jury was faced with competing accounts which raised the issues of the nature of the conduct engaged in, whether or not there had been consent and whether or not the accused had believed that the complainant was consenting.

   [51] [2010] SASCFC 62.

7. In the present case, no alcohol was involved and the only issue before the jury was whether it could be satisfied beyond reasonable doubt that each sexual act, the subject of the complainant’s evidence, in fact, occurred.  For each count, the complainant asserted that a particular act occurred and the accused denied that the act occurred.  Each act complained of was, with all respect, of a simple or basic nature that one would expect a 14 or 15 year old girl, in the circumstances of this complainant, to recognise as occurring, if it did.  Whilst reliability was not to be ignored, the primary concern before the jury would have been truthfulness.

8. The particular directions given in Daniel, Liberato and in the present case were to be understood by each of the respective juries and their adequacy or otherwise falls to be addressed within these respective factual contexts.

9. In Daniel, Sulan J quoted at length from Wells J in Calides and reviewed in some detail the purpose behind the Calides formulation.[52]   

   [52]   See, in particular, at [20]-[25], [30].

10. After referring to various passages in the reasons provided in Murray v R[53] and R v Woods,[54] Sulan J concluded this part of his judgment with the following.[55]

    I consider that the Judge’s direction failed clearly to direct the jury of the three alternative ways in which they must consider the evidence.  Although the Judge reminded the jury on a number of occasions that the onus of proof was on the prosecution, when he gave the critical direction relating to the accused’s evidence and the defence case, he failed to make it clear that, if they rejected the defence case, they must still be satisfied beyond reasonable doubt of the accused’s guilt.  In my view, the failure of the Judge to direct the jury of the three alternative approaches when considering the appellant’s evidence creates a significant risk that the jury may have failed to understand the correct process of reasoning required before finding the appellant guilty.

    [53] (2002) 211 CLR 193.

    [54] (2009) 102 SASR 422.

    [55] At [37].

11. Liberato was mentioned in his Honour’s reasons but only in the footnote to the first reference to the Calides passage and as if by way of a comparator.  It is apparent from his Honour’s reasoning that the problem before the jury in Daniel, of oath against oath, leading to the question “who is to be believed”, required a clear direction from the trial judge including to the effect that, even if it rejected the accused’s account, it still had to go on and consider whether the case against the accused had been proved beyond reasonable doubt.[56]  However, it is also apparent from his Honour’s reasons that, there will be occasions such as in Daniel itself, where a Calides direction given within an appropriate context will achieve this; the specific Liberato formulation will not always be required.

    [56]   See in particular at [22]-[23].

12. Notwithstanding its potential to confuse in the ways I have earlier suggested, the Calides formulation, properly employed, is a time-honoured method in this State of satisfying the concern re-stated by Brennan J in Liberato, bearing in mind its underlying purpose.[57]  As Vanstone J (with whose reasons Anderson and Stanley JJ agreed) said in R v Baslis:[58]

    Plainly the evidence of an accused person must be taken into account by the jury, along with that of any other defence witnesses.  However, general directions as to the onus and standard of proof and as to the elements of the relevant offence will generally ensure that the jury understands the task which confronts it …  The well-known decision in R v Calides … flowed from the way the trial judge had expressed himself, which invited the jury to choose between two competing versions and therefore undermined the directions on the burden of proof.

    [57]   See Pullin JA in Azarian and Sulan J in Daniel.

    [58] [2011] SASCFC 160 at [16].

13. Ultimately, the Judge must make it clear that nothing short of proof beyond reasonable doubt will do.[59]  This calls for a judgment to be arrived at by looking at the summing up as a whole and counsels’ addresses.[60]  In my view, the Judge did not err in providing the directions that she gave.  It is true that her Honour did not expressly tell the jury that even if it was to reject the appellant’s account, it still must go on to consider separately whether or not it accepted the prosecution proofs beyond reasonable doubt.  It is true that her Honour did not expressly tell the jury that by going into the witness box and giving evidence on oath the appellant did not thereby assume any onus of proof which still, as always, remained with the prosecution.  Nevertheless, in my view, the jury, following its consideration of the directions as a whole, should have retired with a proper appreciation of its task. 

    [59]   R v Smith [2008] SASC 135 at [13]; R v Molloy (2008) 102 SASR 452 at [4].

    [60]   Murray v R (2002) 211 CLR 193 at [72]; R v Molloy at [13], [58].

14. At no time throughout the summing up was the jury invited to choose between the two competing versions; the burden of the summing up was always to the contrary.  To the extent that there was a risk that the jury or some of its members might nevertheless ask themselves the question “who is to be believed?” paragraphs 88 to 90 at the end of the summing up were sufficient to emphasise, again, that the jury had to be satisfied of the prosecution proofs, irrespective of its attitude to the appellant’s evidence.  The last sentence in paragraph 88 together with the three alternatives in paragraph 90 (identified as covering the field) in my view, made this sufficiently clear – and particularly so when considered in the context of the limited nature of the factual enquiry before the jury and the nature and quantity of the directions concerning onus and standard of proof earlier given. 

15. In this latter respect, the jury had been repeatedly told,[61]

    (i)that the prosecution always bore the onus of proving its case with respect to each count beyond reasonable doubt;

    (ii)that the prosecution case was dependant on the jury accepting the complainant’s evidence as truthful and reliable with respect to the occurrence of each sexual act under consideration; and

    (iii)that the appellant bore no onus to prove anything.

    [61]   Paragraphs 29 and 30 above.

16. I am satisfied that the jury ought not have retired with the misapprehension that a positive rejection of the appellant’s evidence, on its own, would be sufficient to establish guilt.  Neither paragraph 3(i) nor 3(ii) of the grounds of appeal is made out.  The use of the word “persuade” in connection with the appellant’s evidence in paragraph 90 of the summing up, when considered in the context of paragraph 90 and the summing up as a whole, ought not have caused the jury to think that the appellant had an onus to prove that her evidence was true.  There is no doubt that the use of the word “persuade” in the context of the consideration of an accused’s evidence can be reflective of error,[62] but that was not the case here.  Paragraph 3(iii) of the grounds of appeal is not made out.

    [62]   See, for example, Prater v Rowbottom unreported SASC 12/3/1991 (White J) BC9100501.

17. Since writing these reasons I have read the judgment of Peek J.  I agree with his Honour’s additional observations.

18. The Judge did not err and there has been no miscarriage of justice.  I would dismiss the appeal.