R v Pelly

Case [2015] SASCFC 25

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PELLY

[2015] SASCFC 25

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Bampton and The Honourable Justice Parker)

23 March 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION

Appellant convicted after trial by jury of assault causing harm and rape – appellant complains that prosecutor’s cross-examination of him, prosecutor’s final address and the Judge’s failure to remedy either resulted in a miscarriage of justice – appellant further argues that the Judge failed to properly direct as to the issue of lies and defence of property – where no objection made by defence counsel at trial

Held per Bampton J (Parker J concurring) (dismissing the appeal):

An objective reading of the whole of the trial reveals that the complainant’s evidence was compelling and it was open to the jury to exclude as a reasonable possibility the appellant’s account of what occurred. The impugned cross-examination and prosecutor’s remarks would not have created any real risk that the jury would not have given proper consideration to the evidence. When the remarks about which complaint is made are considered in the context of the overall trial, they do not carry any risk of a miscarriage of justice. Any potentially unfair comment or cross-examination was moderated by the summing up and did not bring about a miscarriage of justice. No lies direction was required. Defence of property did not arise on the evidence. Appeal dismissed with respect to ground 1.3. Permission to appeal refused on all other grounds.

Per Gray J (dismissing the appeal against conviction for assault; in dissent on the appeal against conviction for rape):

1. The defence case was that the complainant lied.  The defence case did not suggest a motive to lie on the part of the complaint.  Accordingly, it was impermissible for the prosecutor in his closing address to attribute to the defence case a suggested motive to lie on the part of the complainant.  The prosecutor’s submission had the effect of placing the onus on the defendant to prove a motive to lie.  The general directions given by the trial Judge were insufficient to address the prejudicial effect of the prosecutor’s submission.

2. The defendant’s rejection of the prosecutor’s suggestion of recent invention could only be substantiated by the defendant having earlier waived his right to silence or by the defendant disclosing privileged instructions at trial.  The prosecutor’s cross-examination and submission in his closing address that the defendant had tailored his case to fit the prosecution evidence was an impermissible attack on the right to silence.  The Judge’s treatment of the submission in his summing up amounted to an acceptance that the submission was appropriate.  The Judge should have given a specific direction that no inference of guilt could be drawn…

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R v Pelly [2015] SASCFC 25
Case
[2015] SASCFC 25
Decision Date

CaseChat Overview and Summary

The appellant, R v Pelly, was convicted by a jury of assault causing harm and rape. The appellant appealed his conviction, arguing that the prosecutor's cross-examination of him, the prosecutor's final address, and the trial judge's failure to remedy these issues resulted in a miscarriage of justice. Additionally, the appellant contended that the judge failed to properly direct the jury on the issue of lies and the defence of property, despite no objection being raised by defence counsel at trial. The appeal was heard by Gray, Bampton, and Parker JJ.

The central legal issues before the court were whether the prosecutor's conduct during cross-examination and final address, coupled with the judge's alleged failure to intervene, constituted a miscarriage of justice. The court also considered whether the judge erred by not directing the jury on the defence of property, and whether the appellant's right to silence was infringed by the potential for his silence to be used against him in assessing the weight of his evidence.

The court found that the defence of property did not arise from the evidence presented. If it had, it would have been considered alongside self-defence, and given the jury's acceptance of the complainant's account, any defence of property would have been rejected. The court concluded that an objective reading of the trial indicated the complainant's evidence was compelling, and the jury could reasonably exclude the appellant's account. While acknowledging that some of the prosecutor's remarks were immoderate, the court held that, when viewed in the context of the entire trial and moderated by the summing up, they did not create a real risk of a miscarriage of justice. The court also noted the absence of any objection from the defence at trial.

The court refused permission to appeal on several grounds and dismissed the appeal on another, finding that no miscarriage of justice had occurred. Parker J agreed with the reasoning, stating that while some prosecutorial remarks were inappropriate, the summing up ensured the jury remained focused on its task.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Brennan J also rejected the above distinction and said:[23]... Where a jury might have had regard to an accused’s earlier silence in evaluating evidence given by him at the trial, recognition of the right of silence precludes the jury from taking that silence into account. It is not open to attack exculpatory evidence of an accused as a recent fabrication merely because the accused was silent on occasions when he had a right to be silent. The right of silence would be infringed if evidence of silence were admissible to impugn exculpatory evidence or out-of-court statements by an accused.[Emphasis added.][23] Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95, 107. Gaudron J addressed the inferences which may be drawn as a result of silence on the part of an accused in different contexts and said:[24]The distinction which the cases assert between silence as, on the one hand, a matter bearing on the weight to be given to an explanation and as, on the other hand, a matter not founding an inference of guilt will not withstand scrutiny. A direction that the failure to raise an explanation before trial may be taken into account in assessing its weight really amounts to a direction that an inference of guilt may be drawn from that failure...Although ordinary experience allows that an inference may be drawn to the effect that an explanation is false simply because it was not given when an earlier opportunity arose, that reasoning process has no place in a criminal trial. It is fundamental to our system of criminal justice that it is for the prosecution to establish guilt beyond reasonable doubt. The corollary of that - and it is equally fundamental - is that, insanity and statutory exceptions apart, it is never for an accused person to prove his innocence. Therein lies an important aspect of the right to silence, which right also encompasses the privilege against incrimination. To allow that an explanation might be judged false because it was not put forward before trial is, in effect, to allow that the burden of proving guilt may be more readily discharged because the accused person did not signal the precise basis of his innocence - in other words, his defence. And that is so even if the accused person bears an evidential burden, for a burden of that kind does not relieve the prosecution of the ultimate onus of establishing the elements of the offence charged beyond reasonable doubt. A direction which allows that failure to advance a matter of defence may detract from its weight, reduces the burden on the prosecution to prove guilt beyond reasonable doubt and undermines its corollary that, insanity and statutory exceptions aside, it is never for an accused person to establish his innocence. It does so by subjecting the accused person to the risk that, if he does not signal before trial what he is under no obligation to prove in his trial, namely, the basis of his innocence, that may be used to establish his guilt. Accordingly, a direction of the type given in the present case is a misdirection. And, evidence that there was a failure to signal or raise some matter of defence before trial, which is directed only to the weight to be given to that matter of defence, is inadmissible because, given that it is for the prosecution to prove guilt and it is not for the defence to prove innocence, the evidence proves nothing.[Footnotes omitted. Emphasis added.][24] Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95, 128-9.

Decision

Reasons for decision

GRAY J
The appellant claimed that the complainant reacted to his inability to pay more money for anal intercourse. He contends he was asserting a mixture of defence of self and property and, as such, even though it was not raised by his counsel, it was necessary for the jury to be directed as to the defence of property. Defence of property did not, in my view, arise from the evidence. If it did, it would, by necessity, have been considered in conjunction with the issue of self‑defence. Finally, if the jury accepted the complainant’s account, they rejected self-defence. It follows that they would have rejected any defence of property.Conclusion In my view, an objective reading of the whole of the trial reveals that the complainant’s evidence was compelling and it was open to the jury (acting reasonably) to exclude as a reasonable possibility the appellant’s account of what occurred in his hotel room on 25 April 2013. The impugned cross-examination and prosecutor’s remarks would not have created any real risk that the jury would not have given proper consideration to the evidence. When the remarks about which complaint is made are considered in the context of the overall trial, they do not, in my view, carry any risk of a miscarriage of justice. I only found a couple of the remarks to be immoderate. However, when these remarks are juxtaposed in the trial record as heard by the jury, the overall impression is, in my view, such that there has been no miscarriage of justice. Any potentially unfair comment or cross‑examination was, in my view, moderated by the summing up and did not bring about a miscarriage of justice. Again I say, it is striking that no attempt was made to respond to remarks in the appellant’s closing address, nor was any complaint made to the Judge. Finally, even “if the line from permissible to impermissible … had been crossed, I consider that … the appellant was not prejudiced … and there was not unfairness bringing a miscarriage of justice”.[77][77] Gonzales v The Queen (2007) 178 A Crim R 232 at 152 (Giles JA). I would refuse permission to appeal with respect to grounds 1.1, 1.2, 1.4, 1.5, 2, 3, 4 and 5. I would dismiss the appeal with respect to ground 1.3. PARKER J: I agree with the reasons of Bampton J and the orders that she proposes. While some of the remarks made by the prosecutor were inappropriate and ought not to have been made, I am satisfied that when considered in context the effect of the summing up was to ensure that the jury was not deflected from its task.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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