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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v N

Details

AGLC: R v N [2004] SASC 264
Case: [2004] SASC 264
Decision Date: 31 August 2004

CaseChat Overview and Summary

The case of R v N involved an appeal against convictions for two groups of sexual offences, which were decided after separate trials. The appellant sought leave to appeal on the basis that the trial judge arguably misdirected the jury on the question of motive to lie in the first trial, and in the second trial, the trial judge wrongly took into account the lack of demonstrated motive to lie when deciding issues in the absence of the jury. The appellant also sought an extension of time for lodging the notice of appeal on the basis that the delay was adequately explained.

The legal issues before the court were whether the trial judge's alleged misdirections were significant enough to warrant an appeal, whether the trial judge's consideration of the lack of a demonstrated motive to lie was an error that affected the outcome of the trial, and whether the delay in lodging the notice of appeal was justified. The court had to consider whether the alleged errors in the trial process were substantial enough to impact the fairness of the trial and whether the delay in lodging the notice of appeal was adequately explained.

The court found that the alleged misdirections by the trial judge were not significant enough to warrant an appeal. The court held that the trial judge's consideration of the lack of a demonstrated motive to lie did not affect the outcome of the trial. The court also found that the delay in lodging the notice of appeal was not adequately explained. As a result, the court refused all applications, including the application for leave to appeal and the application for an extension of time for lodging the notice of appeal.

The court's final orders were to refuse all applications made by the appellant, including the application for leave to appeal and the application for an extension of time for lodging the notice of appeal. The convictions for the sexual offences remained in place.

Orders