R v Parsons; R v Brady - [2015] SASCFC 183

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PARSONS; R v BRADY
[2015] SASCFC 183
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Nicholson)
11 December 2015
CRIMINAL LAW - PROCEDURE - SUMMING UP
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - MISDIRECTION
Appeal against conviction. Each of the appellants Parsons and Brady was convicted by jury of five counts of aggravated causing harm with intent to cause harm and two counts of aggravated assault, all relating to incidents occurring during a New Year’s Eve party on 31 December 2012 in Panorama. The prosecution case was that the two appellants were part of a group that gatecrashed the party and, as part of a joint criminal enterprise, assaulted a number of the guests. Count 1 was alleged to have occurred on the road outside the party, and Counts 2 to 8 on the tennis court where the party was being held.
At trial, Parsons gave evidence, while Brady did not. In summing up, the Judge gave directions about reliability and honesty of witnesses, which included that there has been no realistic suggestion that any of the prosecution eyewitnesses were dishonest or lying. Soon after this direction, the Judge directed that they might consider whether a witness has a motive to lie.
On the appeal, the appellants contended that the Judge erred in these directions, as his Honour drew the distinction that Parsons was the only witness who it was suggested was lying in his evidence; directed that the jury might consider whether a witness had a motive to lie; and failed to direct that they should not disregard Parsons' evidence or treat it lightly or discount it simply because he was an accused person.
Whether the directions deprived the appellant of a fair trial and a miscarriage of justice has ensued.
Held per Peek J (allowing the appeal) (Kelly and Nicholson JJ agreeing):
1. The line of authority including Robinson v The Queen (1991) 180 CLR 531 and Hargraves v The Queen (2011) 245 CLR 257 recognises that a Judge has a duty not to deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt. This requires a Judge not to direct in a way that invites the jury to consider the interest that the accused has in a trial as a motive to lie, unless it is accompanied with a satisfactory warning against discounting the accused’s evidence simply by reason of his or her interest.
2. There was a substantial misdirection going directly to the matters of the presumption of innocence and the assessment of the evidence given by the accused which evidence, if not negated beyond reasonable doubt, demonstrated a complete defence for both appellants to all of the counts on the Information. The proviso cannot apply.

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.

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Details

Case: [2015] SASCFC 183
Decision Date: 11 December 2015

CaseChat Overview and Summary

In R v Parsons; R v Brady, the Court of Appeal of Victoria considered appeals against convictions. The central dispute revolved around the trial judge's directions to the jury regarding the assessment of the evidence of the accused, Mr. Parsons, in contrast to the evidence of prosecution witnesses.

The primary legal issue before the Court of Appeal was whether the trial judge's summing up, particularly concerning the assessment of the accused's evidence, amounted to a misdirection that deprived the appellant of a fair trial and resulted in a miscarriage of justice. This involved examining how the jury was instructed to consider the accused's potential motive to lie and the weight to be given to his testimony compared to other witnesses.

The Court of Appeal, referencing the High Court's decision in *Hargraves v The Queen* and earlier cases such as *Robinson v The Queen*, found that the trial judge's directions were flawed. The judge had instructed the jury to approach the accused's evidence in the same way as any other witness but then highlighted that the accused, unlike prosecution witnesses whose honesty was not in question, was the only one suggested to have a motive to lie to avoid responsibility. The judge further suggested that the jury might consider the accused to have the greatest interest in the outcome and therefore scrutinise his evidence more closely. Although the judge later clarified that this approach applied to all witnesses, the Court of Appeal held that the initial emphasis on the accused's unique interest and potential dishonesty, even if not explicitly stated as a rule, created an unfairness. This was because it effectively directed the jury to scrutinise the accused's evidence more rigorously than others, solely by virtue of his status as the accused, thereby impairing the fairness of the trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Thus, having regard to his Honour’s directions and, importantly, the juxtaposition of those directions, it is highly likely (if not inevitable) that the jury would have understood the Judge to be instructing them as follows:1In assessing Parsons’ evidence on oath and the weight to be given to it, you are to approach the task in exactly the same way as with any other witness. It is for you to decide what weight you attach to the accused in the same way as any other witness.2Here, no-one has realistically suggested that any of the prosecution eyewitnesses are dishonest or in any way lying. The issue as to the prosecution witnesses is one of reliability rather than honesty.3On the other hand, the thrust of the prosecution questions of Parsons, is that he was simply lying in order to avoid responsibility for his criminal conduct. So the prosecution, fundamentally, contests the honesty of Parsons’ evidence. The issue as to Parsons is one of honesty rather than reliability.4You might consider whether a witness has a motive to lie. Here, Parsons is the only witness who it is suggested has told lies and you might consider whether he has a motive or reason to lie, namely that he was simply lying to avoid responsibility for his criminal conduct as appears from the thrust of the prosecution cross-examination of Parsons.5The approach to determining whether Parsons has lied on oath is the approach you would take in everyday life by bringing to bear your common sense and experience of the world. The question is whether the Judge’s directions deprived the appellant of a fair trial and a miscarriage of justice has ensued. In answering that question, we must have primary regard to the joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hargraves v The Queen.[3]The decisions of the High Court in Robinson, Stafford, Ramey and Palmer[3] (2011) 245 CLR 257 (Hargraves). However, before turning to Hargraves, it is necessary to address four earlier decisions of the High Court. In Robinson v The Queen,[4] the complainant’s evidence was that she was raped and that the appellant had threatened her prior to intercourse. The appellant’s evidence was that consent was freely given. The trial Judge directed the jury in relation to assessing the evidence of witnesses:[5]Still on the subject of witnesses, you might think that some of them have an interest in the outcome of this case. Indeed you might think that one witness above all others has a greater interest than all the others in the outcome of the case. You might say, ‘Well, this witness has a particular interest in the outcome of his case. We should look at his or her evidence closely, more closely than perhaps we would look at others.’ That is a matter you have to bear in mind when scrutinizing a particular witness’s evidence.[4] (1991) 180 CLR 531.[5] (1991) 180 CLR 531, 533. Late in his summing up, the Judge directed:Another test was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinize that witness’s evidence closely. You might think ─ it is a matter solely for you ─ that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinize his evidence closely. (Emphasis added)

Decision

Reasons for decision

KELLY J PEEK J NICHOLSON J

The question is whether the Judge’s directions deprived the appellant of a fair trial and a miscarriage of justice has ensued. In answering that question, we must have primary regard to the joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hargraves v The Queen.[3]The decisions of the High Court in Robinson, Stafford, Ramey and Palmer[3] (2011) 245 CLR 257 (Hargraves). However, before turning to Hargraves, it is necessary to address four earlier decisions of the High Court. In Robinson v The Queen,[4] the complainant’s evidence was that she was raped and that the appellant had threatened her prior to intercourse. The appellant’s evidence was that consent was freely given. The trial Judge directed the jury in relation to assessing the evidence of witnesses:[5]Still on the subject of witnesses, you might think that some of them have an interest in the outcome of this case. Indeed you might think that one witness above all others has a greater interest than all the others in the outcome of the case. You might say, ‘Well, this witness has a particular interest in the outcome of his case. We should look at his or her evidence closely, more closely than perhaps we would look at others.’ That is a matter you have to bear in mind when scrutinizing a particular witness’s evidence.[4] (1991) 180 CLR 531.[5] (1991) 180 CLR 531, 533. Late in his summing up, the Judge directed:Another test was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinize that witness’s evidence closely. You might think ─ it is a matter solely for you ─ that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinize his evidence closely. (Emphasis added) Defence counsel asked for a further direction, but only to the extent that that the complainant also had an interest in the outcome of the case. The Judge then redirected:[6]I didn’t intend to lead you to believe that you apply only the interest in the outcome of the case test to the accused only. You apply it to all the witnesses if you believe that test is applicable.[6] (1991) 180 CLR 531, 534. In a joint judgment,[7] the High Court referred to the trial Judge’s directions concerning the onus and standard of proof as “unexceptionable”. However, their Honours considered that it was nevertheless the case that the fairness of the trial was seriously impaired by the effect of the trial Judge’s directions concerning the interest of a witness in the outcome of the case. Their Honours stated:[8]Notwithstanding the correctness of his Honour’s directions concerning the onus and standard of proof, however, it is impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness in the outcome of the case. The jury could hardly escape the conclusion that the appellant had “the greatest interest of all the witnesses” in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour’s directions had the effect that the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury’s preference for the evidence of the complainant against that of the accused. [7] Mason CJ, Brennan, Deane, Toohey and McHugh JJ.[8] (1991) 180 CLR 531, 535.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J, PEEK J, NICHOLSON J

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