R v MAS

Case [2013] SASCFC 122

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MAS

[2013] SASCFC 122

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Blue)

14 November 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - PROCEDURE

CRIMINAL LAW - PROCEDURE - SUMMING UP

CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY - ADEQUACY OF WARNING - SEXUAL OFFENCES

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

The appellant was charged with three counts of indecent assault against his younger daughter, D.  It was alleged that the appellant committed many other very similar indecent assaults against D between the ages of five and fifteen.  The prosecution case depended entirely upon the evidence of D, whose evidence was uncorroborated.  The appellant's case was one of simple denial.  He gave no evidence.

D's evidence at trial differed significantly from the prosecution opening and two statements she had made to the police.  D gave no evidence on count 3 at all, stating that count 2 was the final indecent assault she endured.

The jury returned a directed verdict of not guilty on count 3.  The jury was unable to reach a verdict on count 1 but returned a verdict of guilty on count 2.  The appellant appeals on the grounds that:

(1) the Judge erred in refusing to direct the jury that it would be unsafe to convict the appellant on the uncorroborated evidence of D;

(2) the verdict was unreasonable; and

(3) the effect of the Judge's directions was to suggest that the jury was restricted in the extent to which the jury could take into account a doubt as to D's credibility or reliability arising in the context of counts 1 or 3 when considering their verdict on count 2.

Held (The Court, allowing the appeal):

(1) Although ground 1 of appeal was not made out in relation to the giving of a warning that it would be unsafe to convict the appellant on the uncorroborated evidence of D, the Judge's directions failed to put adequately the defence case to the jury.  The inconsistencies in D's evidence were an important part of the defence case, the prosecution case depending entirely on the uncorroborated evidence of D.  The Judge's very brief treatment of the topic of inconsistencies was inadequate in the particular circumstances. [71]-[72]

(2) The Judge's directions might have given the jury the impression that the jury could not take into account a reasonable doubt concerning the credibility or reliability of D's evidence arising in the immediate context of one count when assessing the credibility or reliability of her evidence on a different count.  The jury was not adequately directed that, notwithstanding the jury's entitlement to…

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R v MAS [2013] SASCFC 122
Case
[2013] SASCFC 122
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by the appellant, R v MAS, against his conviction for sexual offences. The complainant, referred to as D, gave evidence alleging that the appellant had sexually assaulted her on multiple occasions over several years, commencing when she was a child. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Peek and Blue JJ.

The central legal issues before the court were whether the trial judge had erred in failing to adequately direct the jury regarding inconsistencies in the complainant's evidence, and whether it would be unsafe to convict on the uncorroborated evidence of the complainant. Specifically, the appellant argued that the trial judge should have provided substantive directions drawing the jury's attention to particular inconsistencies in D's testimony, rather than simply stating that it would be unsafe to convict on uncorroborated evidence.

The Full Court held that while a judge is not required to warn a jury that it is unsafe to convict on the uncorroborated evidence of a complainant in a sexual offence trial, something more than the mere absence of corroboration is generally required to establish an appealable error in refusing such a warning. However, the court found that the trial judge's directions on the specific matters relied upon as particulars of the appeal were inadequate. The court emphasised the importance of a trial judge bringing significant evidential issues to the jury's attention. In this case, the numerous and significant inconsistencies in the complainant's evidence raised a real question about the reliability of her testimony as a whole. The judge's brief observation about a single inconsistency was insufficient, and the jury should have been directed that they were entitled to reject her evidence or find it an unreliable foundation for a guilty verdict, particularly given the entirely uncorroborated nature of the evidence and the significant passage of time since the alleged events.

The Court concluded that the trial judge's inadequate directions denied the appellant a real chance of acquittal on one of the counts. The appeal was allowed, the conviction on count 2 was quashed, and a retrial was ordered for counts 1 and 3.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Particular portions of the prosecution opening are referred to in more detail below in conjunction with an examination of the individual counts.The evidence-in-chief of D D gave evidence that she was born in Victoria, the youngest of five children. Her only sister was the eldest child. Her early recollections were of living in a beachside town in Victoria and later in Caulfield and Ballarat in that State. She gave evidence that she remembered going on a holiday in a caravan park whilst the family was living in Ballarat. She testified that, on that holiday, her father touched her indecently between her legs whilst giving her piggy-back rides and when dressing her. The sexual offending continued after the family returned home after the holiday. D gave evidence that the family moved from Ballarat to the Glenelg house where they resided for about two to three years. She testified that she attended St Leonards Primary School at Glenelg for the first three years of her schooling. She explained that she commenced school in South Australia later than other children because she had come from interstate. According to D, the sexual offending continued after the family moved to South Australia. It seemed to D that it occurred on most nights. D gave this description of the way in which the offending was frequently committed:[4]… I would lie there like a dead body, he would come into my room, he would remove the covers from the bottom so that I still had a bit on me, I would lie there like a dead body because I was stupid enough to think he would think I was asleep. He would run his hands over my body. When he used to touch me near my sides my skin would crawl and I would almost spasm with a tickle type horrible feeling of someone touching my body. …[4] T26. D continued by describing the way in which her father would then orally and digitally interfere with her. D testified that the family moved from Glenelg to live in the Prospect house, which was a boarding house and was managed by her mother from those premises. Her father worked as a salesman. D’s family occupied a part of the residence on the ground floor. At the Prospect house, D shared a room with her sister. After the move to Prospect, D attended Prospect Demonstration School starting at that school in grade 4. She testified that the family was still living in Prospect when she, at age 13, commenced her secondary education at Adelaide Girls High School. She gave evidence that she spent three years in high school, but repeated second year. She testified that the sexual abuse continued in much the same way at Prospect as it had at Glenelg. Whilst she was still attending Adelaide Girls High School, D’s family left the Prospect house and moved back to the Glenelg house. D testified that she initially shared a room with her sister but that in 1970, when she was 15, her sister travelled to the United States where she married. Inconsistently with the prosecutor’s opening, D gave evidence that she went to John Martin’s department store to hear The Valentines play in either 1969 or 1970 when she was 14. She testified that she was attending Adelaide Girls High School at that time but that the family had returned to live in Glenelg. According to D, she snuck out of Adelaide Girls High School at lunch time and returned to school in the afternoon. D gave evidence that that night, at the family home in Glenelg, her father digitally and orally sexually assaulted her.

Decision

Reasons for decision

As Keane JA emphasised in The Queen v LR, it is necessary to be sure that the credibility (or lack thereof) of a complainant be assessed in a global way:[73]66. … The importance of the direction lies in requiring the jury to consider, in a global sense, whether or not they find a complainant to be a witness whose evidence is reliable. What needs to be made clear is that the credibility of the complainant, whether good or bad, is a separate question from that of whether or not an accused should be convicted on each separate count. Finding that the complainant is a credible witness generally should only lead to conviction if the evidence given by that complainant is sufficient to allow the jury to find beyond reasonable doubt that each offence was committed. It may be, that while a witness is regarded as generally credible, there are features of the totality of the evidence on a particular count which could rationally lead to a rejection of the witness’ evidence on that count. It may also be that, while a witness is to be regarded as generally not credible, there are features of the evidence on a particular count which prove sufficient support for the jury to accept the witness’ evidence on that count only. It may also be possible, for example, for a jury to find that a complainant was a credible witness but also come to the view that the account given of a particular incident, while honest, did not amount to reliable evidence that the offence charged had actually been committed.[73] [2006] 1 Qd R 435, 455, 456.Conclusion as to grounds 1 and 3 of appeal It is the duty of a trial Judge to bring to the jury’s attention the significant evidential issues which they must decide. In this case, the Judge told the jury that they could accept a witness’s testimony in whole or in part, and that they might bring in different verdicts on different counts, but he made just a brief observation about a single inconsistency in D’s testimony about count 1. This was a case in which the inconsistencies in both quantity and quality raised as a real question the reliability of D’s testimony as a whole. A direction was required to the effect that, notwithstanding the entitlement of the jury to accept D’s evidence in part, and to bring in different verdicts, the jury was also entitled to take the view that her evidence should be rejected or that it was not a sufficiently reliable foundation on which to return a verdict of guilty on any of the counts. This appeal is being considered some 50 years after the date of the alleged events and does, unlike R v Liddy,[74] involve evidence of a complainant that is entirely uncorroborated. Despite the effluxion of so many years, the jury was left with a doubt on count 1 and is likely to have been in doubt about the evidence relating to count 3. The Judge’s directions denied the appellant a real chance of acquittal on count 2 by quarantining the effect of the doubts attending D’s evidence with respect to the other counts.[74] (2002) 81 SASR 22. The cross-admissibility of the evidence of the victims afforded very substantial corroboration in Liddy.

Ratio Decidendi

Legal Principle Established

However, all that his Honour said as to the matter of inconsistencies in the evidence of D was as follows:[8]… Mr Algie submits that the inconsistencies are of great significance and he explains why in some detail and he submits that the way [D’s] accounts seemed to expand should cause you concerns.He points to [D’s] evidence about the diary and the school books and he submits that it does not stack up. …[8] Summing up AB48.Consideration of ground 1 of appeal The primary focus of ground of appeal 1 is that the Judge erred in refusing to direct the jury that, in the particular circumstances, it would be unsafe to convict the appellant on the uncorroborated evidence of the complainant. Section 34L(5) of the Evidence Act 1929 provides that a Judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict on the uncorroborated evidence of an alleged victim of a sexual offence. The abrogation of the rule of practice means that, generally speaking, something more than the mere absence of corroboration is required to render a Judge’s refusal to warn the jury in a trial of a sexual offence that it is unsafe to convict on the complainant’s uncorroborated evidence an appellable error. It is important to understand that the evidence of child sexual abuse will often be uncorroborated. Trials of those offences are of great consequence to the complainants, the accused and the community, and the jury is the tribunal best placed to determine those factual controversies. A judicial warning that it is unsafe to convict to a large extent arrogates to the Judge the responsibility which the criminal trial assigns to the jury. In this case, the Judge made it very clear to the jury that the prosecution case was dependent on an acceptance of the complainant’s evidence and that for that reason it was important to evaluate closely her evidence. The appellant referred to a number of other matters in support of his submission that the Judge should have warned the jury that it was unsafe to convict on the complainant’s uncorroborated evidence. The appellant did not establish that the Judge erred in refusing to give this particular warning that it would be unsafe to convict the appellant on the uncorroborated evidence of the complainant. However, it does not follow from this conclusion that the directions which were given on the specific matters which were relied upon as particulars of ground 1 of appeal were adequate in the circumstances. Inadequate directions as to inconsistencies By far the most important of the matters upon which the appellant relied as particulars of his claim that the Judge should have warned the jury that it would be unsafe to convict the appellant on the uncorroborated evidence of the complainant was a series of inconsistencies in the evidence of D. As the argument developed, the appellant contended, and the respondent accepted, that ground 1 should not be restricted to an assertion that the Judge should simply have directed the jury baldly that “it would be unsafe to convict the appellant on the uncorroborated evidence of D”. Rather, the ground was to be interpreted as also contending that substantive directions should have been given which specifically called attention to the particular inconsistencies. It was to this alternative contention that most of the argument on the appeal was directed.