R v N - [2004] SASC 264

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v N
Reasons for Ruling of The Honourable Justice Vanstone
31 August 2004
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Application for leave to appeal against convictions recorded for two groups of sexual offences after separate trials - whether trial judge arguably misdirected jury on question of motive to lie - whether trial judge in second trial sitting without jury wrongly took into account lack of demonstrated motive to lie - whether delay in lodging notice of appeal adequately explained - all applications refused.

R v N
[2004] SASC 264
Criminal

VANSTONE J: This is an application for leave to appeal in relation to two groups of convictions for sexual offences recorded in the District Court together with an application for extension of time within which to appeal.
The first group of convictions were recorded after a trial by jury before His Honour Judge Bright, which concluded on 15 May 2003. They were for two counts of indecent assault and four counts of unlawful sexual intercourse. Subsequently, a further trial was conducted – the complainant being the sister of the first complainant – and that took place before Judge Lee sitting without a jury. On 27 October 2003 Judge Lee delivered his reasons for finding the applicant guilty on each of the four charges before him.
As is obvious, some little time has passed since the convictions were recorded in this matter. The appeal notice, referring to both trials, was filed in May 2004. I shall deal with the application for an extension of time after discussing the proposed grounds of appeal.
In relation to the jury trial, the applicant seeks leave in relation to four grounds. Grounds 1 and 3 raise similar considerations and were dealt with in combination by both Mr Edwardson for the applicant and Mr Pearce for the respondent. I shall do likewise. The grounds are based on a direction given by the learned trial judge in the course of his general directions to the jury as to evaluation of the evidence. The judge pointed out to the jury that the prosecution case stood or fell on the evidence of the complainant and that it could only succeed if the jury were satisfied beyond reasonable doubt that her evidence was both honest and reliable. He said that if they disbelieved her or were left in doubt they would have to acquit. He went on to say – and this is the impugned direction –
This is not a case where she could be honestly mistaken. If she is lying, she has told wicked lies. If she has told the truth, Mr [N] has not. There is no middle ground.
The judge immediately went on to point out that the accused had no duty to prove anything and a doubt in the jury’s minds would lead to an acquittal.
Mr Edwardson submitted that in directing the jury in this way the judge took away “the middle ground” from them. I took him to mean that the jury was thereby instructed that they had a choice as to who to believe and that the choice must be made, either in favour of the complainant or in favour of the applicant. Mr Edwardson referred principally to the New South Wales case of R v E (1995) 89 A Crim R 325 in this connection and also to the High Court case of Palmer v The Queen (1998) 193 CLR 1. He further argued that in the circumstances the trial judge was in error in failing to give what has been called a Calides direction to the effect that if the jury remained unsure as to where the truth lay they should acquit.
In my view the impugned direction was factually quite correct. The judge was speaking of the honesty of the complainant and indeed of the accused. The fact was that there could be no mistake about the type of sexual behaviour alleged against the applicant by the complainant. The judge was specifically addressing the question of honesty. He was far from saying that the final determination of the matter was a choice between the credibility of the complainant and the applicant and nor do I think that was the implication. I do not consider that the matters raised in E are of any assistance in this connection. The directions given in E to the effect that the jury had to make a choice between accepting the evidence of the complainant and accepting that of the accused (and even that the jury had to decide beyond reasonable doubt whether they accepted or rejected the accused’s evidence) were in stark contrast to the observation made by Judge Bright, viewed in the context of all his directions.
Nor do I consider that the directions given to the jury by Judge Bright led to a need for a direction in terms of Calides’ case. It seems to me that the onus of proof was appropriately explained by the trial judge. Accordingly I would not grant leave on grounds 1 or 3.
Ground 2 suggests that the trial judge misdirected the jury in relation to the complainant’s motive for lying. The judge referred to various possible motives that she might have had to lie against the accused. It seems likely that he did so because of emphasis placed by defence counsel in the evidence and in his closing address on that topic. The judge told the jury that they might accept some or all of the suggested motives or reject them. He told the jury that the defence could only speculate about what went on in the complainant’s head and that their list might not be exhaustive. He said:
You may see other motives. You may even be left wondering what the motive could be. But, if so, the absence of any obvious motive does not, by itself, establish that she has told the truth. It is just one of the many factors that you will consider.
In Palmer the conviction was quashed on the basis of extensive cross-examination of the accused to show that he could not prove that the complainant had a motive to lie about the accused’s conduct. The Court did not hold that the correct principle precluded cross-examination or arguments in all cases in relation to motive of any witness to lie. The real vice in Palmer was the concentration in the prosecutor’s cross-examination on the accused’s inability to account for what he said was the complainant’s false story about him.
In my view, particularly in a case where the defence has imputed to the complainant a number of specific motives to lie, it could hardly be inappropriate for the trial judge to refer to the matter and to direct the jury that even if they found the suggested motives unconvincing the lack of motive was not determinative, but was a factor.
The fourth ground raised the disclosure by the complainant during cross-examination that the accused had sexually abused her sister. There were two instances where this came out, although rather obliquely, in cross-examination. In my view it could not be said that the answers given were unresponsive. Particularly on the second occasion the cross-examiner was plainly on dangerous ground and could not really complain about the answer. He did raise the first disclosure with the trial judge in the absence of the jury, but no mistrial application was made on the basis of either passage of evidence. Mr Edwardson submitted that the prejudice which accrued to the applicant was, in effect, incurable and so the failure to apply for a mistrial is not really of significance.
It was not suggested to me that there was any independent evidence tending to prove that the complainant’s sister was in fact sexually abused by the applicant. I assume that the brief allegation made remained unsubstantiated.
There will always be a danger where several members of a family claim to have been abused that some hint of multiple complaints will emerge, particularly in cross-examination. Whether the jury are told to disregard the evidence so elicited or whether the matter is just left to fall away (insofar as it can) is a matter of judgment for counsel and the trial judge. In this case it would have been quite wrong for the trial judge to tell the jury to disregard the answers containing that allegation, even were he asked to, because they were relevant to the assertions put in cross-examination. But he was not asked to do so. In the end it seems to me that the applicant is bound by the course of the trial and bound by the conduct of it by his counsel both as to the course cross-examination took and as to the decision not to ask for discharge of the jury. I do not think it is arguable that a miscarriage of justice thereby resulted.
I turn then to the complaint in relation to the trial before Judge Lee sitting without a jury. The sole complaint is that in his reasoning process the judge wrongly took into account the failure of the accused to demonstrate that the complainant had a motive to make false allegations against him and that he thereby reversed the onus of proof.
The passage complained of occurs in one of the final few paragraphs of the judge’s reasons for verdicts. The judge had already said that he found himself in no doubt that the charges – and indeed the uncharged conduct – occurred as alleged. He said:
The complainant was an impressive and cogent witness. She gave her evidence dispassionately, and without prevarication. She did not claim to remember every detail. She gave no sign that she had rehearsed, much less concocted, her evidence. I do not believe the accused’s denials.
He then went on:
Although the law does not require the accused to show that the complainant had a motive for making false allegations against him, the fact is that nether her evidence, nor the evidence of any other witness, discloses to me that she might have been activated by animosity or any other reason. (emphasis added)
It seems to me that this passage does not justify the criticism which Mr Edwardson levelled at it. It was said in a context where, again, the defence had alleged that there was a motivation to lie and it was really a finding in relation to that matter, rather than a justification for the earlier conclusion that the complainant was convincing. In my view the ground is not arguable.
I return to the matter of the extension of time. It was not suggested in this matter that there was any exceptional circumstance or untoward vicissitude which had prevented compliance with the time limits imposed upon lodging appeal notices. As I understand it, the test then becomes whether there are grounds for apprehending that a miscarriage of justice has occurred or substantial grounds on the merits, or a question that justifies serious consideration irrespective of the length of the delay: R v Balchin (1974) 9 SASR 64; R v Trotter (1979) 22 SASR 64; R v Armstrong (1983) 35 SASR 356. I have had the assistance of two affidavits filed in relation to the delay in this case. They particularly relate to the delay since the second trial. There are some deficits in that material. However, the reasons advanced for the delay since conviction before Judge Lee are at least plausible. It seems to me that the same cannot be said in respect of the delay following upon the convictions before Judge Bright. In any event in view of my decision on the merits of the applications it would be inappropriate to extend time within which to appeal.
There was also an application to appeal against sentence. Mr Edwardson advised me that that aspect of the appeal was abandoned. He undertook to ensure that a notice to that effect is filed.
For these reasons I refuse leave to appeal upon all five proposed grounds and I decline to extend the time within which to appeal.