R v S, G
[2011] SASCFC 48
•20 May 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v S, G
[2011] SASCFC 48
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Peek)
20 May 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - SUBSTITUTED VERDICT OR JUDGMENT
Application to appeal against conviction - applicant charged with three counts of unlawful sexual intercourse against his step-daughter - directed acquittal on count 2 - jury found applicant not guilty on count 1 and convicted the applicant on count 3 - conviction on count 3 relied on evidence of complainant and also on evidence of applicant’s semen which was found on a sheet on complainant’s bed.
Whether verdict on count 3 was unreasonable having regard to the evidence - whether verdict on count 3 was inconsistent with the verdicts of not guilty on the other counts - whether the prosecutor at trial contravened s 18(1)(b) of the Evidence Act 1929 (SA).
Held (Peek J; Doyle CJ and White J agreeing): application for permission to appeal against conviction granted - appeal allowed - the ability of the evidence of the applicant's semen on the sheet to implicate the applicant was dependent upon the credibility and reliability of the applicant, which was undermined at trial in a number of respects - an innocent explanation existed for the presence of the applicant's semen - that was that the complainant had inadvertently placed on her bed a sheet upon which the applicant had previously emitted semen in circumstances other than involving sexual intercourse with the complainant - the measurement of the sheet in no way precluded the sheet having been used on bed of applicant - verdict on count 3 was unsafe and unsatisfactory - trial judge failed to adequately put the defence case regarding the sheet to the jury - prosecutor breached s 18(1)(b) of the Evidence Act 1929 (SA) - conviction set aside and verdict of acquittal substituted.
Criminal Law Consolidation Act 1936 (SA) s 352; Evidence Act 1929 (SA) s 18(1)(b), referred to.
R v Nguyen (2010) 85 ALJR 8; R v B and D (1993) 66 A Crim R 192; Siebel v The Queen (1992) 57 SASR 558; R v Dolan (1992) 58 SASR 501; The Queen v K (1997) 68 SASR 405; R v Hansen (2002) 84 SASR 54, applied.
M v The Queen (1994) 181 CLR 487; Penney v The Queen (1998) 155 ALR 605; R v Perks (1986) 43 SASR 112; R v B and D (1993) 66 A Crim R 192; R v Crnjanin [1965] Qd R 324; R v Schmahl [1965] VR 745; R v Wilkes and Briant [1965] VR 478; R v Curtis (1991) 55 A Crim R 209; R v Gbojueh (2009) 103 SASR 545; Stuart v The Queen (1959) 101 CLR 1; Azzopardi v The Queen (2001) 205 CLR 50; R v Arnold [2003] SASC 422; Reid v The Queen [1980] AC 343; Andrews v The Queen (1968) 126 CLR 198; Gerakiteys v The Queen (1983) 153 CLR 317; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, considered.
R v S, G
[2011] SASCFC 48Court of Criminal Appeal: Doyle CJ, White and Peek JJ
DOYLE CJ. I agree with the orders proposed by Peek J. I agree with the substance of his reasons, and with the reasons of White J. There is nothing that I wish to add to those reasons.
WHITE J. I agree with the orders proposed by Peek J and with much of his reasons.
I add the following. The prosecution case on the charge of unlawful sexual intercourse on which the applicant was convicted relied very much on the evidence of the presence of his semen on the sheet (Exhibit P5) taken from the complainant’s bed. That evidence was capable of supporting the conclusion that the applicant had engaged in some form of sexual activity on that bed, and was therefore capable of supporting the complainant’s evidence that the applicant had engaged in sexual intercourse with her on that bed.
The applicant advanced an innocent explanation for the presence of the semen. This was to the effect that before Exhibit P5 was put on the complainant’s bed, it had been used on the bed used by the applicant and the complainant’s mother; that at some stage, whether before or after the death of the complainant’s mother (in November 2008) the applicant had engaged in some form of sexual activity on that bed which accounted for the presence of the semen on it; that, at some stage thereafter, Exhibit P5 had been put into the laundry for washing; and that at some still later stage, the complainant had, when changing the sheets on her bed, mistaken Exhibit P5 for a clean one and had put it on her own bed where it remained until taken by the police on 21 May 2009.
Taken at face value, the jury would have been entitled to regard such an explanation as implausible, if not fanciful, and as not giving rise to any reasonable doubt as to the incriminatory nature of the evidence concerning the presence of the semen.
However, the evidence of the complainant to which Peek J has referred, does give the defence explanation some plausibility. The complainant acknowledged that she had seen Exhibit P5 previously on the bed which her mother shared with the applicant, and she agreed that the state of untidiness and disorder in the laundry of the house (from where she would get sheets when changing her bed linen) was such that it was difficult to know whether a sheet was washed or unwashed. This allowed for the possibility that, when remaking her own bed, she had mistakenly taken an unwashed sheet which had previously been used on the applicant’s bed.
The prosecution case was that the sheet on the complainant’s bed was a new sheet, purchased by the applicant specifically for the complainant in either February or March 2009. Evidence establishing that this was so would have undermined the defence case, as it would have removed the possibility that the sheet had previously been used on the applicant’s own bed.
However, the complainant’s evidence, referred to by Peek J, was that Exhibit P5 was not the new sheet and, as already noted, the complainant said that she had previously seen Exhibit P5 on the bed used by her mother and the applicant. Certain features of Exhibit P5 such as its lighter colour and the fact that it had a hole in one corner tended to support the complainant’s evidence that Exhibit P5 was not a new sheet.
As there was no challenge to the evidence of the police officers that Exhibit P5 was taken from the complainant’s bed, this suggests that the complainant was either mistaken altogether about the purchase and use of the new sheet, or that she had forgotten that she had, after a period of use of the new sheet, replaced it with another. In either case, the possibility existed that the complainant had mistakenly used an unwashed sheet on her bed.
The evidence of the respective dimensions of Exhibit P5 and of the mattresses in the complainant’s and applicant’s bedrooms to which Peek J has referred did not indicate that Exhibit P5 could not have been used on the applicant’s mattress. Counsel for the respondent acknowledged as much on the appeal.
The effect is that the innocent explanation advanced by the defence at trial should not be discounted as fanciful.
The evidence of the presence of the semen on the sheet was of course only part of the prosecution evidence put forward in support of this Count. There was, in addition, the complainant’s own evidence.
However, having regard to the complainant’s admitted lies on other occasions, including lies about sexual behaviour which she attributed to the applicant, her evidence had to be treated with considerable circumspection. The jury was clearly not willing to accept her evidence as establishing Count 1 beyond reasonable doubt. Without the additional evidence of the presence of the applicant’s semen on the sheet taken from her bed, it is very probable that the jury would have taken the same view of her evidence in relation to Count 3.
Accordingly, the position appears to be this: if the jury regarded the complainant’s evidence about the identity of Exhibit P5 and its provenance as reliable, then that evidence indicated that an innocent explanation for the presence of the semen was reasonably possible. If, on the other hand, the jury regarded the complainant’s evidence as to the identity and provenance of the sheet as being unreliable, then there was insufficient other evidence to warrant a conclusion beyond reasonable doubt that Count 3 was made out.
I agree with respect with the reasons of Peek J concerning s 18(1)(b) of the Evidence Act 1929 (SA) and the prosecutor’s contravention of that provision. I also agree with the reasons of Peek J for concluding that it is appropriate for this Court to order that a verdict of acquittal be entered on Count 3
PEEK J. This is an application to the Court of Criminal Appeal for permission to appeal against a conviction of unlawful sexual intercourse, the application having been refused by the single Judge.
Introduction
The complainant, (to whom I will refer, without disrespect intended, as R), was born on 22 July 1994. When she was aged 4, her biological father left home and she continued to live with her mother and her four brothers. The applicant moved in with them when she was aged 9 and became R’s step-father. R’s mother unfortunately died in November 2008.
On about 27 February 2009 and 19 April 2009, R made entries in her diary and on “Facebook”[1] respectively, both suggesting that the applicant had sexually interfered with her. On 3 May 2009 R made a complaint to police against the applicant of a physical assault, entirely non-sexual in nature, by pushing her after an argument; she did not at that time complain to police about any alleged sexual activity by the applicant. R left the applicant’s home at about the time of making this complaint of assault and did not wish to return to live with him.
[1] A social network website on the internet.
Later, at a camp she attended between 15 and 17 May 2009, R made allegations to a camp counsellor of sexual abuse by the applicant prior to 3 May 2009. Police were notified on 18 May 2009 and on 20 May 2009 R gave a statement complaining of previous sexual abuse by the applicant. On 21 May 2009, police attended at the applicant’s home and seized items including a purple sheet that was attached to the bed in which R had been sleeping at the time alleged for the commission of count 3.
The applicant was tried on three counts of unlawful sexual intercourse against a background of uncharged acts. During the course of R’s evidence many lies and inconsistencies were established. The applicant did not give evidence. On count 1, the jury found the applicant not guilty and on count 2, the jury were directed to find him not guilty as the complainant at trial no longer made an allegation of that offence. The jury convicted of count 3 with which conviction this application is concerned. The applicant pleaded guilty to the non-sexual assault charged in count 4 prior to the commencement of the trial.
The amended Information upon which the trial was conducted (with the name of the complainant replaced with the letter “R”) appears as follows:
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[S, G] between the 1st day of March and the 31st day of May 2008 at Smithfield, had vaginal sexual intercourse with [R], a person of the age of 13 years.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[S, G] between the 1st day of October and the 31st day of October 2008 at Smithfield, had vaginal sexual intercourse with [R], a person of the age of 14 years.
Third Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
[S, G] between the 16th day of April and the 17th day of April 2009 at Smithfield, had vaginal sexual intercourse with [R], a person of the age of 14 years.
Fourth Count
Statement of Offence
Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[S, G] on the 3rd day of May 2009 at Smithfield, assaulted [R].
It is further alleged that the offender committed the offence knowing that the victim of the offence was a child of whom the offender was the guardian.
The grounds of appeal
The grounds of appeal filed by the applicant were:
1.The verdict of the jury on count 3 was unreasonable and cannot be supported having regard to the evidence; and
2.The guilty verdict on count 3 is unreasonable or unsafe and unsatisfactory on the basis of inconsistency with the verdicts of not guilty on counts 1 and 2.
During the course of the appeal hearing, counsel for the applicant applied to amend the grounds of appeal to include a further ground, that being:
3.The prosecuting counsel’s statement in his jury address that the complainant’s evidence was “uncontradicted in this court by other evidence”, was inappropriate and may have undermined the appellant’s right not to give evidence, may have served to reverse the onus of proof and contravened s 18(1)(b) of the Evidence Act 1929 (SA).
The Court indicated at the time that it would reserve its decision as to whether permission should be granted to amend the grounds of appeal. I will refer to this matter later in these reasons.
The prosecution case as to count 3
On 21 May 2009, following the complaint referred to above, police attended at the applicant’s home and seized items including a purple sheet that was attached to the bed in which R had been sleeping up to the time of her departure from the house on about 3 May 2009. The applicant stated to police that no one had slept in that bed since R had left. The seized sheet (exhibit P5 at trial) was subsequently examined and semen was detected which, on DNA testing, was found to be overwhelmingly likely to have emanated from the applicant. Acid phosphatase, an enzyme associated with semen, was also detected, the significance being that this enzyme would not have remained detectable if the sheet had been washed in a domestic washing machine after its deposit.
The prosecution case as to the provenance of the purple sheet exhibit P5 was that it had been purchased together with a new bed some time after 26 February 2009; that R was sleeping on that sheet in her new bed when count 3 later occurred on about 16 April 2009 and that the applicant then emitted the semen which was later detected.
R’s evidence as to the seized purple sheet exhibit P5
R stated that up until about 26 February 2009 she had been continuously sleeping in a bunk bed.[2] She stated that that date was significant because she was still sleeping in a bunk bed when an uncharged act of unlawful sexual intercourse occurred on 26 February 2009 about which she made an entry dated 27 February 2009 in her diary/journal. She further stated that at some time after this, the bunk bed was replaced by a new bed which the applicant bought at “Fantastic Furniture” and that on that same occasion, but at a different store, the applicant also purchased a new quilt cover and a purple fitted sheet for the applicant’s new bed.[3] I will refer to this sheet as “the newly purchased purple sheet”. The effect of R’s evidence was that the newly purchased purple sheet was fitted to the new bed immediately on purchase and that she started to sleep in the new bed and did so continuously until leaving the house on 3 May 2009.
[2] T42-43.
[3] T46.
R stated that on 16 April 2009 she was sleeping in the new bed when the applicant entered her bedroom and had vaginal sexual intercourse with her. The date of 16 April 2009 was said to be established by reference to an entry R made on “Facebook” about three days after that date.
R stated clearly and definitively – and contrary to the prosecution case – that exhibit P5 (the seized purple sheet with semen deposit) was not the newly purchased purple sheet. During examination-in-chief (which was conducted by CCTV) the complainant was shown the seized purple bed sheet, exhibit P5, and said that P5 was not the sheet she had had on her bed; she stated that the newly purchased sheet was a darker purple. The prosecutor later directly showed P5 to R in the same room and the following passage occurs:[4]
[4] T63-64.
Q:I now ask you about the sheet that I showed you. Can that be reproduced to you in person. I want you to assume that’s the sheet I showed you earlier that you said was a different purple colour to the one you bought. Having seen that now right next to you, how does the colour compare to the one you bought?
A: It looks a bit lighter.
Q: Does it look closer to like the one you bought?
A: Yeah. Yeah, a bit like it.
Q:I ask you to look at the dimensions, if it can be held up for you. How do the dimensions of it compare to the sheet you bought?
A: What do you mean?
Q: The size.
A: Yeah, it looks the same size.
R was here clearly maintaining that it was not the same sheet and this was made explicit in the following passage of cross-examination when R stated very clearly that the sheet P5 that she was shown was not the sheet that had been bought for her:[5]
[5] T110.
Q: You were shown a sheet yesterday?
A: Yes.
Q: That was brought into the room?
A: Yes.
Q: You looked at that sheet?
A: Yep.
Q: That is not the sheet that was bought that day, was it?
A: No.
Q;And I think you said that the sheet that was bought that day was a darker purple?
A; Yep.
Q:I think you said that it looks like but it is not the same sheet. That was the effect of your evidence, wasn’t it?
A: Yep.
Of critical importance, R stated that exhibit P5 was in fact an older sheet that had been regularly used by her late mother and the applicant on their bed. In cross-examination R was asked as to the linen she had seen on the bed of the applicant and her late mother:[6]
[6] T111.
Q: Do you remember a dark purple fitted sheet to their bed, same fitted sheet?
A: Yep.
Q:That wasn’t the only purple bed linen that they had, in fact did you recognise the sheet yesterday as being linen that had previously been in your house?
A: Yep.
Q:And you had seen that previously I would suggest on your late mother and [the applicant’s] bed at some time?
A: Yep. Yep.
Q: That linen had been in the house for a number of years hadn’t it?
A: Yep.
Q: That is the fitted sheet that you saw yesterday?
A: Yep.
Prosecution counsel agreed on the hearing of the appeal that the prosecution were unable to negative a period of use of the new bed and sheet by R from as early as 27 February 2009 to as late as 3 May 2009 (the date of the non-sexual assault which coincided with R leaving the house for the final time).
The defence case as to the seized purple sheet exhibit P5
The applicant contended that although the evidence surrounding the purple bed sheet was put forward as strong independent evidence that corroborated the testimony of the complainant, in reality that evidence relied heavily upon the credibility and reliability of R since it was she who gave evidence as to the circumstances under which it came to be on her bed.
The defence case was that at some time prior to her departure on 3 May 2009, R had placed the purple sheet P5 on her bed not being aware that semen had previously been deposited upon it by the applicant at a time when it had been attached to his bed. The defence case continued that the sheet remained attached to the bed until the police seized it on 26 May 2009. It is important to appreciate that the date of 16 April 2009 (the date alleged for count 3) has no relevance to the defence case at all because the defence is that no sexual intercourse with R occurred on that date or any other date. The defence case was in no way restricted to a possible change of sheets after the date of 26 April 2009, much less a change of sheets after R had left the house on 3 May 2009.
A number of matters supported the viability of the defence hypothesis.
First, and most important for the resolution of this appeal, was R’s evidence that sheet P5 was not the newly purchased sheet.
Second, R gave evidence that she was responsible for changing her bed linen. On the prosecution case, R’s new purple fitted sheet was purchased at some time after 26 February 2009. Over the period leading up to her final departure on 3 May 2009, it was not unlikely that R would have wished to change the sheet at some stage.
Third, R agreed that leading up to her mother’s death, the house had become dirty and messy and that after her mother’s death the housework was let go, such that no one was doing the laundry and clean items were intermingled with used items. She agreed that it would not be possible to say whether linen from the laundry was washed or unwashed. The following passage occurred in cross-examination:[7]
[7] T112.
Q: Would you get – usually would you get linen from the laundry area?
A: Yep.
Q: And it wasn’t very tidy the laundry area, was it?
A: Yes.
Q: Like the rest of the house, the whole house was a mess, wasn’t it?
A: Yes.
Q:It is difficult, isn’t it, to have known in the laundry whether what you are getting from the laundry is a washed clothes or bed linen or whether it is dirty, isn’t it?
A: Yep.
Q: There is no order to the laundry, is there?
A: No, there isn’t.
The police officers Mr Liebelt and Ms Vanderwoude agreed that when they attended on 21 May 2009, the house was generally untidy and messy.
It is also to be noted that the semen deposit may have been on the sheet for a considerable period of time. Thus the forensic scientist called by the prosecution, Mr Webster, stated:[8]
Q:If this sheet had not been washed for a long period of time how long would you expect a semen stain to be able to give you sufficient DNA material?
A:If a semen stain was deposited on the sheet and the sheet remained in a dry environment, no exposure to strong sunshine or rain occurring, I would expect to be able to recover DNA for a number of years.
[8] T188.
It would therefore seem that there was a real possibility that R had inadvertently placed the unwashed sheet P5 on her bed, being unaware of the presence of the semen deposit. Nevertheless, while acquitting the applicant of counts 1 and 2, the jury convicted on count 3. The question arises as to whether that is a safe and satisfactory verdict in all of the circumstances.
Unsafe and unsatisfactory verdict
Although it is fair to say that some statements in judgments of the High Court since the decision in M v The Queen[9] may have differed as to the precise approach to be taken to provisions equivalent to s 352 of the Criminal Law Consolidation Act 1936 (SA) and as to whether a complaint may properly be made in terms of a verdict being “unsafe or unsatisfactory”, I will take as authoritative the following passage in the joint judgment of five Justices (Hayne, Heydon, Crennan, Kiefel and Bell JJ) of the High Court in the recent decision in R v Nguyen:[10]
[9] (1994) 181 CLR 487.
[10] (2010) 85 ALJR 8, 14.
[33]The task of an appellate court in considering whether a verdict of guilty returned by a jury “should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence” was described by this Court in M. As four members of the Court pointed out in M, the conclusion that a verdict should be set aside on this basis is often expressed in terms of the verdict being “unsafe or unsatisfactory”, “unjust or unsafe” or “dangerous or unsafe”. The question for the appellate court is one of fact.
“[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”
As the plurality in M went on to point out:
“But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”
The authoritative guidance which this Court provided in M about the task of a court of criminal appeal was expressed in the following terms:
“It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”
(Emphasis added)
In order to consider the grounds of appeal according to the above precepts I will refer primarily to evidentiary considerations but will bear in mind that the question of the safety of the verdict must also be considered in the light of the directions that were, or were not, given to the jury as to the defence case.
At trial it was suggested by the prosecution that there were essentially two obstacles to the defence case as postulated above. The first related to the police investigation of the matter and was that a measurement of the sheet P5 was said to indicate that it would not have fitted on the applicant’s bed which was larger than that of the complainant. The second depended on the reliability of R and was that she stated in evidence that she did not take the sheet P5 from the laundry and place it on her bed. I will consider these two matters in that order.
Measurements of the mattresses and P5 – and the investigation generally
Evidence was led by Detective Senior Constable Vanderwoude and Crime Scene Investigator Metcalfe about the dimensions of the seized fitted sheet, the complainant’s mattress and the applicant’s mattress as follows:
LENGTH
WIDTH
DEPTH
Fitted Sheet (P5)[11]
199 cm one side
200.5 cm other side
179.5 cm
39 cm
Complainant’s Mattress[12]
188 cm
139.5 cm
22 cm
Applicant’s Mattress[13]
204 cm
185 cm
21 cm
[11] T160 and T167.
[12] T192.
[13] T192.
Although it can be seen that the seized sheet P5 was much closer in size to the applicant’s mattress than to R’s mattress, the police never tested whether P5 did or did not fit the applicant’s bed. Police officer Vanderwoude stated that police measured both the sheet P5 and the applicant’s mattress on 21 May 2009 and the very fact of undertaking that “measuring” process showed that they were well aware of the importance of the issue. However, although this issue was specifically raised at trial, and again in the course of the argument on appeal, there has never been any suggestion that the police were unable to carry out such a test or any explanation as to why they did not.
The significance of the omission to test whether P5 fitted the applicant’s mattress becomes very stark in the light of the prosecutor’s final address at trial where he said:[14]
That mattress was measured, you might remember, as 204cm long, 185cm wide and 21cm of depth. So how does this sheet, P5, fit onto that bed? Is it possible to be stretched over that mattress? I respectfully submit it doesn’t. Even stretching it, members of the jury, allowing for the stretch in fabrics, you have to allow 4cm of length to be stretched and you have to allow about 6.5cm of stretch sideways. Some of you obviously have fitted sheets and you might think, members of the jury, of how difficult it is when a fitted sheet is put around the wrong way or it doesn’t fit comfortably or it’s had to stretch. So it does return; how did that semen get on to her bedsheet? We suggest plainly by intercourse with her.
[14] T224.
In similar vein, he said later in his final address:[15]
So the science, the measurements and the practicalities are crucial on the prosecution case. The accused case put before you that she is a liar. We know she has admitted lying on topics. But she can’t lie about seeing sperm; she can’t lie about acid phosphatase; she can’t lie about measurements. There is no fantasy in what she is telling you about sex, in my submission, in her house.
[15] T226-227.
As to this, his Honour in his summing up said only:[16]
He [the prosecutor] reminded you about the dimensions of the sheet as opposed to the respective mattresses and suggested to you, in those circumstances, you ought to infer that the sheet could not have been at any stage on the accused’s larger bed. He asked you to conclude that the bed sheet which was bought when she obtained the double bed had only been on her bed for a short time and it was the only one used on her bed. He asked you to infer the sheet must have been on the bed when the accused deposited the semen on it
[16] T50-51.
The jury subsequently sent a note to his Honour requesting that a tape measure be supplied to them. His Honour denied this request.
In fact, the comments of the prosecutor made no allowance for compression of the applicant’s mattress in circumstances where the dimensions above indicate that the length of the seized sheet would have only been 1.75-2.5cm short on both the top and bottom of the applicant’s mattress, the width of the sheet would have only been 2.75cm short on each of the left and right sides of the mattress and importantly, the fitted sheet had a depth of almost exactly twice the depth of the applicant’s mattress. It would appear highly likely that the sheet would have fitted the applicant’s mattress, although the points of each of the corners of the fitted sheet would not have aligned with the same of the mattress and the seams of the sheet would have shown slightly on the top of the mattress.
On the hearing of the appeal Ms Telfer, counsel for the DPP (who had not appeared at trial) in the course of a very careful and well prepared address, while seeking to support the verdict generally, in effect conceded this matter of measurements. She said:[17]
I should say the sizes that were set out, I think the various measurements are set out in para.13 of my outline. I don’t suggest that much can be made of that. If one looks at that and with any understanding of a fitted sheet, this is, I can see, a fair bit of extra sheet available, even just looking at the depth with the depth of the mattress. But it was a matter that they could put into the mix as a small circumstance along with everything else.
[17] T25.
This fair and balanced approach is highly refreshing.
Another unsatisfactory element of the police investigation was that no tests were conducted to see whether the appearance and condition of the sheet P5 was supportive of the prosecution case that it had been purchased a relatively short time before the alleged offence on the one hand, or, on the other hand, supportive of it having been used for a much longer period on the applicant’s matrimonial bed. This issue was specifically referred to during the argument of the appeal. It was then observed that since the prosecution case was that the sheet P5 had been recently purchased on a definite occasion, an important question that arose was as to whether P5 was in fact a sheet of that age and provenance or, alternatively, was it a much older sheet that had been seen years previously, as it were, continuously in service on the bed of the applicant and R’s mother? In the light of those fairly stark and clear alternatives, prosecution counsel was asked as to whether any steps had been taken to call any evidence as to the purchase of the sheet or to perform any tests as to the age of the sheet or to advance the enquiry in any other way.
Ms Telfer frankly conceded that there was no such evidence except for that given in a second hand way by the forensic scientist, Mr Webster, who appears not to have carried out any examination himself but was relying on some other unidentified person’s notes. The relevant part of his evidence was as follows:[18]
[18] T187-188.
A:My report – my report and conclusions are based on laboratory notes, I did not personally examine the bed sheet.
Q:Is there any notes that have been made about the condition of the sheet when it was received?
A:We – on our general examination form there is an area called ‘general condition’ and the person who examined the sheet noted down that a purple sheet of reasonable condition was examined.
…
Q:… Having looked at your file are you able to say whether there were any hairs that were found on the sheet?
A: Yes, there were hairs found, observed on the sheet, and they were left in place.
Q:Are you able to make any other comment about the condition of the sheet and whether there was any material found in the sheet?
A: There is comments that grease was found on the sheet.
Q: Whereabouts was that found?
A:It doesn’t specifically state where it was apart from large amount of grease present on the upper surface.
Q: Was there anything else, any other material or marking on the sheet?
A:The sheet, when it was examined, has what appears to be three numbers written in something similar to a biro on the sheet. In one of the corners a small hole was made.
Q: Was there any damage that was done to the sheet?
A:The sheet was examined for damage and damage was observed; it was described as a hole towards the top left-hand corner.
(Emphasis added)
Although far from definitive, the description of the sheet being in “reasonable condition” (as distinct from “excellent”, “very good”, “good” etc) does seem to point to an older sheet rather than a sheet supposedly with a maximum usage of about two months by one person. The remarks as to “large amount of grease” and the damage of the hole would also seem to point in that same direction.
I must say that I find the whole of the evidence surrounding the seizure of the sheet to be disconcertingly vague. Thus in the examination of Mr Liebelt:[19]
Q: I’m just asking you now how the sheet was when you first saw it?
A: I thought the sheet was somehow attached to the mattress.
Q: I want you to assume that this photograph was taken about a year later.
A: Yes.
Q: Did you make a note of the exact position of the sheet when you first seized it?
A:I haven’t put anything in my notes about that specifically but I do have a notation at 19.43 on the 21st as a purple fitted bed sheet, so I assume that the bed sheet was fitted to the bed at that stage.
[19] T149.
The position is said to be that no photographs whatsoever were taken at or around the time when police visited the premises on 21 May 2009 and seized the sheet P5; not of the sheet P5; nor of R’s bed or bedding; nor of the applicant’s bed or bedding. It was said that photographs were only taken on 30 April 2010, almost a year after the fitted sheet was seized from the bed! Indeed, it would appear that a photograph was never taken of the seized sheet P5, either in situ or anywhere else. I might add that the photographs belatedly taken on 30 April 2010 do confirm that the applicant’s mattress was still then available to be tested so as to ascertain whether the sheet P5 would fit on it, but still no such test was performed.
The question of whether an unsatisfactory police investigation could result in an accused failing to receive a fail trial was considered by the High Court in Penney v The Queen.[20] In that case, Callinan J (with whom the other members of the Court agreed) held that a complete and unexceptionable investigation was not required for a fair trial. However, his Honour also concluded that despite that general proposition, there may be instances where an unsatisfactory investigation could deprive an accused of a fair trial. His Honour stated:[21]
[18]The appellant’s submissions on these contentions fail at the threshold. They fail because even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial. But that will all depend on the facts of the particular case. …
(Emphasis added)
[20] (1998) 155 ALR 605.
[21] Ibid 609-610.
In my view, if appropriate tests had been undertaken in the present case, they may well have confirmed that the sheet P5 was in fact the older sheet used by the applicant and R’s mother. However, failing that, a test simply as to whether P5 would fit on the applicant’s bed would almost certainly have demonstrated what the prosecution have now conceded on appeal (but strongly contended to the contrary at trial), namely that the so-called measurements in no way precluded the sheet P5 having been used on the bed of the applicant and his wife.
I do not find it necessary to consider in what precise circumstances an appeal should be allowed solely on the basis of an unsatisfactory investigation. Rather, it appears clear to me that, at least in the present case, this aspect of a poor or unsatisfactory investigation is one of a number of matters that may be taken into account when considering whether “the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force” for the purposes of the test laid down in M v The Queen[22] as referred to above.
R’s statement that she did not place the sheet P5 on her bed – and her general credibility and reliability
[22] (1994) 181 CLR 487, 494.
The second matter asserted by the prosecution at trial to be an obstacle to the defence case as postulated above depended on the reliability of R and was that she stated in evidence that she did not take the sheet P5 from the laundry and place it on her bed.
In my view that statement has to be placed very much in the context of the whole of the case and particularly the following important matters.
First, an acceptance of the overall prosecution case on count 3 would require a finding that R was wrong about her evidence that the sheet P5 presented to her in Court was a different sheet to the newly purchased purple sheet that she described in evidence. Without even resorting to the presumption of innocence, it is very difficult to see, simply as a matter of logic, how it can be maintained that R could be so mistaken on a matter as that without also conceding that, in the alternative, she could be mistaken as to the rather mundane matter as to changing her sheets. In any event, it was the evidence of R that it was she who was responsible for the making of her bed and changing her linen and the sheet exhibit P5 was found on her bed by police. It seems difficult to rule out the possibility that it was she who placed it there.
Second, and perhaps most fundamentally, there is the overall question of the reliability of the evidence of the complainant to be considered. The credibility and reliability of R was demonstrated at trial to be very poor with numerous prior inconsistent statements and admitted lies being admitted or established. Some of the lies were about sexual matters, some of which were disturbingly close to the allegations being made against the applicant. Thus R stated at different times that her biological father (as well as the applicant) had sexually abused her; that a friend had got her “pissed” and had tried to rape her; that she had been pregnant and had an abortion; and, of high importance, that the applicant was the father of the unborn child she had aborted. She eventually agreed that these were all lies.
Some of the lies were rather elaborate and colourful. Thus, she had written a letter to Ms Helen Wills, in which she had claimed (falsely) to have been pregnant and to have had an abortion in the following passage:
‘As I still can’t believe what I have done ended me up knocked up and me ending up getting rid of an innocent human being. I don’t get it, I know I had to do what was best, but I just wish I was normal like every other teenager.’
R later told Ms Wills that the applicant had been the father of the baby. However, R eventually admitted that the whole story of pregnancy and abortion was a lie.
One reason for such lies appears to have been to attract attention and sympathy. R agreed in cross-examination that she was somewhat obsessed with several older women whom she viewed as mentors and that she had very little communication with people her own age at school or elsewhere; she spent most of her time by herself writing in “hundreds of journals”.
Thus, at a camp attended by R from 15 to 18 May 2009, R wrote numerous notes in a journal for communication to camp counsellor, Ms Mia Bakovic, and many of these notes contained untrue statements. At trial, R told the prosecutor that she did not know why she had written these, but admitted in cross-examination that she had done it to get attention and sympathy from Ms Bakovic. At camp, R stated to Ms Bakovic that she had been abused by her biological father and by the applicant and when asked for details, she wrote “Bashing my mum and sometimes me, in other ways too.” When asked by Ms Bakovic as to whether the abuse by the applicant was still happening, R said “yep” and said that the applicant was sexually abusing her “every night”. However, at trial R agreed that at the time of the camp she was no longer living with the applicant, having previously left the applicant’s home at the time of the physical assault on 3 May with the last sexual act (count 3) being said to have occurred on 16 or 17 April 2009.
R agreed in evidence that she had told police and prosecutors, at various times, various inconsistent versions of her allegations against the applicant including some outright lies. For example, she told police that at the time of the first occasion of sexual abuse by the applicant she did not know what sexual intercourse was and that she had only subsequently learnt about it from books which she borrowed from the school library. However, the police conducted investigations at the school library and ascertained that R had in fact not borrowed any books on the topic as she had claimed. When this was put to her in cross-examination, she agreed that she had lied to the police about that. She was also driven to agree that prior to the date of the first alleged sexual interference by the applicant she had received from her mother and the applicant a book (exhibit D2) designed for young people and teenagers entitled “Puberty” which dealt fully with sexual intercourse and which she had read at the time.
A number of the other inconsistent statements went directly to the topic of the charges against the applicant. Thus R volunteered in her evidence-in-chief at trial of an act of unlawful sexual intercourse on the night after her mother died on 11 November 2008 but she had never previously mentioned such an allegation including in any of her six statements to the police or in the two proofing sessions with the DPP. Conversely, she denied at trial that there was any act of intercourse that could have corresponded to the prosecution’s opening with respect to count 2 despite her previous allegation being the foundation of that count.
Further, R agreed in cross-examination that she had given significantly different versions at different times (such as her police statement in May 2009 and a proofing session with DPP solicitors six months later in November 2009) as to the position in which the incidents of sexual intercourse was supposed to have taken place; whether she was sleeping clothed or unclothed; and as to when the first episode of sexual interference took place. After R had agreed that these inconsistencies were significant, the following further passage of cross-examination continued:[23]
[23] T105-106.
Q:So are you able to say why there is that difference in the evidence that you are giving. What happened between May when you made that statement and November when you went in to recount again for the solicitors what had happened?
A: What do you mean?
Q:Well, when you told the solicitors those things six months later – that you slept naked, so you weren’t wearing any clothes, that when [the applicant] had sex with you were on your stomach, and that the first time it happened that your mother was in the house – when you said those things was that your recollection at the time?
A: No.
Q: It wasn’t your recollection at the time?
A: No.
Q: Well, why did you say them?
A: Because I was upset and I wanted to get it over and done with.
Q: So are you saying you told them things that were not true?
A: Yep.
Q: Because you were upset and you wanted to get it over and done with?
A: Yep.
A little later, the following passage occurs:[24]
[24] T108.
Q:What I am suggesting to you is that the reason that you gave such a different account six months later is because you had forgotten what you told police on 20 May 2009?
A: Yep.
Q: Do you agree with that?
A: Yep.
Q: And you hadn’t read your statement between that period of time had you?
A: Yep. Nup.
Q: You just came out with a different account of what happened?
A: Yep.
Q:And I suggest that is because that it didn’t happen at all, would you agree with that?
A: What do you mean?
Q:What I am saying is that the reason that you came out with such a different account is because you have forgotten the lies you told police on 20 May 2009?
A: That is not true.
Other lies told by R raise real questions as to her ability to tell fantasy from reality, such as her claim that she had tried to kill herself by taking a drug overdose and had then been under 24 hour watch. She initially maintained this false story in examination-in-chief but later in a lengthy passage in cross-examination, after giving various versions, finally agreed with counsel for the applicant in cross-examination that the story was completely untrue.
There were various other material inconsistencies in R’s evidence but I consider that the above survey sufficiently makes the point for present purposes. In my view, the credibility and reliability of R was demonstrated to be so poor that her assertion that she did not take the sheet P5 and place it on her bed is simply too thin a reed upon which to support a reasoning process leading to the conviction of the applicant.
Did the learned trial Judge adequately “put the defence case”?
I fully appreciate that his Honour had to cover many aspects of law and fact in his summing up quite apart from the area surrounding the sheet P5 now under consideration. If I may say so, the summing up appears unexceptionable in every area but this. The summing up was in no way biased against the applicant: if anything, one may discern from its overall effect something of a suggestion that it would be appropriate to acquit the applicant of all charges on the basis of the poor credibility and reliability of the complainant. Furthermore, it is also only fair to his Honour to stress that this matter of the precise defence case in relation to the sheet evidence is something that has now come into much sharper focus owing to the pattern of verdicts that the jury delivered which may well have been somewhat unexpected.
However, as to the matter of the sheet evidence, and with the greatest respect to his Honour, it seems to me that while he clearly instructed the jury as to the prosecution case, he did not do so with regard to the defence case. In my view, his Honour was at least required clearly to direct the jury as to what the defence was in relation to count 3, namely that R had inadvertently placed on her bed a sheet upon which the applicant had previously emitted semen in circumstances other than involving sexual intercourse with R.
It is not necessary to refer extensively to the authorities as to the obligation of the trial Judge to put the defence case to the jury. It is obvious that while the extent of the requirement will vary according to the particular circumstances and an omission specifically to refer to each and every of counsel’s arguments will not necessarily render a summing up defective, the obligation does usually extend to directing the jury as to the relevant evidence and the bearing of that evidence upon the issues of the case and the defence to the charge. The obligation to put the defence case in relation to important matters remains irrespective of the fact that counsel may have mentioned such matters.[25]
[25] See R v Perks (1986) 43 SASR 112; R v B and D (1993) 66 A Crim R 192, 196-197; R v Crnjanin [1965] Qd R 324, 329; R v Schmahl [1965] VR 745, 749; R v Wilkes and Briant [1965] VR 478; R v Curtis (1991) 55 A Crim R 209, 220-222.
Unfortunately, the various directions that his Honour gave in relation to the sheet P5 appear in different contexts rather than as a cohesive whole. Chronologically they appear in the summing up as follows. First, his Honour directed (in the context of the evidence of the forensic scientist Mr Webster):[26]
You see, in this case Mr Webster can tell you about the probability — indeed, you might think the overwhelming probability — that it was the accused’s semen which was found on the bed sheet, Exhibit P5. He can tell you that the semen was deposited on that sheet at some time only. It may have been years before. The scientists cannot tell the date when that was deposited. He is also able to tell you about the frayed state of that bed sheet, the grit and other stains which were on it. That aside, ladies and gentlemen, he cannot assist you further with determining whether the accused was ever physically on that bed as opposed to leaving semen on that sheet.
[26] Summing up, 15.
The next relevant passage appeared in the context of his Honour’s directions in relation to the prosecution case and the prosecutor’s submissions as to the drawing of inferences. His Honour there said:[27]
The complainant was not asked as to whether she noticed any stains on her bed at any time. As to the sheet, she said that she had obtained a new fitted sheet when she got the double bed and she had only slept on it a few times before leaving on 3 May 2009. She did not think that Exhibit P5 was her sheet. Certainly she had not placed Exhibit P5 on her bed, she said. She thought it had been in the house for some time previously.
[27] Ibid 16.
His Honour then turned to deal with other things. Much later his Honour directed, in the context of a review of the evidence of R as a whole:[28]
As for the bed sheet, I have already referred to that evidence in which she said she did not believe it was the bed sheet that she had. She thought, at p.46, that it was a darker purple than Exhibit P5. She agreed that the house had been in a mess and the sheets had not been washed. She said that the fitted sheet which she bought had been on her bed and that she had slept in it only two or three times before leaving.
[28] Ibid 46.
At end of the summing up his Honour referred to the addresses of counsel. He once again put the prosecution case in relation to the sheet evidence thus:[29]
He referred to the fitted bed sheet. He said you ought to find, as an uncontroverted fact, that the sheet found by the police in 2009 fitted the mattress in the complainant’s room. He reminded you what the police had asked and the answer to that. He pointed to the DNA testing, that there was semen found on that sheet and that you ought to accept, beyond reasonable doubt, that the semen came from the accused. He reminded you about the dimensions of the sheet as opposed to the respective mattresses and suggested to you, in those circumstances, you ought to infer that the sheet could not have been at any stage on the accused’s larger bed. He asked you to conclude that the bedsheet which was bought when she obtained the double bed had only been on her bed for a short time and it was the only one used on her bed. He asked you to infer the sheet must have been on the bed when the accused deposited the semen on it.
[29] Ibid 50-51.
His Honour then referred to the address of defence counsel. Unfortunately, while he did refer to various of his arguments as to the credibility of R in general, he did not touch on any aspect of the sheet evidence.
Some of the evidence referred to above by his Honour was potentially important for the defence – but it was not marshalled for the jury such that its significance or bearing on the hypothesis of innocence was apparent. For example, it may be that a lawyer could discern from his Honour’s various comments above that R believed that the seized sheet P5 was not the sheet that had been purchased for her, but there was no mention, for example, of her evidence that in fact P5 was a sheet that had been used by her mother and the applicant and it was this latter aspect that was critical as to the likely continued use of the sheet by the applicant and hence the possibility of an innocent deposit of semen on it by him.
But quite apart from that, it is my view that his Honour simply did not draw to the attention of the jury in straight forward terms what the defence to the sheet evidence actually was, namely that R had inadvertently placed on her bed a sheet upon which the applicant had previously emitted semen in circumstances other than involving sexual intercourse with R.
In my view, the present case bears a strong similarity to the case of R v B and D[30] where King CJ (with whom Duggan J concurred) stated:[31]
I think moreover that the defence was not adequately put. The essence of the defence, apart from the denials on oath of the appellants, was that Susan had fabricated the story in order to achieve her desire to return to Tasmania. This point, and Susan’s evidence in relation to it, was central to the defence and ought to have been expressly put to the jury by the judge. In recounting Susan’s evidence, his Honour did refer to her answers in relation to these matters but it was never put to the jury as being the appellants’ defence to the charge. No doubt these points were mentioned by counsel for the defence in the course of the address but they were so essential to the defence as to require express mention in the course of the judge’s summing up of the issues of fact to be decided by the jury.
(Emphasis added)
[30] (1993) 66 A Crim R 192.
[31] Ibid 196.
And Perry J stated:[32]
However, I agree with his Honour the Chief Justice that the argument of the defence that the victim had fabricated her story “in order to achieve her desire to return to Tasmania” was not adequately put to the jury. It is not always sufficient simply to summarise the evidence of each of the witnesses in turn, which is the approach adopted by the learned trial judge in assisting the jury as to the facts of the matter. In my opinion, it is better that the trial judge summarise in his own words the salient features of the defence. With respect to the learned trial judge, the manner in which his summing up was constructed did not bring home the cogency of the evidence suggesting that the complainant may well have had a strong motivation to concoct.
(Emphasis added)
[32] Ibid 197.
Conclusion: the verdict is unsafe and unsatisfactory
This was a case where there is not just a question of whether the applicant committed a crime but whether a crime has been committed at all. Putting aside the matter of the sheet P5 for a moment, there is no independent corroborative evidence that the appellant (or anyone else) committed any of the charged offences or uncharged acts and the verdicts on counts 1 and 2 make it plain that the jury were not prepared to act on R’s word alone.
The significance of a difference in verdicts in relation to the same kind of offending by the same defendant against the same complainant should usually be assessed by reference to the question of whether the guilty verdict is unsafe or unsatisfactory or unreasonable in all of the circumstances of the case as distinct from examining a suggested inconsistency of verdict in vacuo.[33] The matter of the verdicts of acquittal returned on counts 1 and 2 in the present case is, of course, a major consideration but it is perhaps important to note that the present case is not of the more usually encountered type where the appellant primarily argues, first, that the verdict(s) of acquittal found an inference of jury dissatisfaction with R’s credibility/reliability and, secondly, there is no valid basis of distinction between the count(s) of which the appellant was acquitted and the count(s) of which he was convicted. Rather, the present position is as follows.
[33] For example, see R v Gbojueh (2009) 103 SASR 545, 553.
First, a finding of dissatisfaction as to R’s credibility/reliability does not depend on an inference to be drawn from the jury’s verdict of acquittal; those verdicts are simply confirmatory of the evidence of unreliability very clearly established in the trial transcript for all to see.
Second, the basis of distinction as between the acquittals and the conviction is not in any way here in question: there is no doubt that it was the evidence surrounding the purple sheet P5 that was responsible for the jury’s different verdict in relation to count 3.
Third, and most critically, the introduction of the evidence of the purple sheet in relation to count 3 posed a real danger that the jury might overestimate the importance of such evidence and fail to appreciate that its ability to implicate the applicant was in reality dependent upon the reliability of R.
In my view, an objective analysis of the evidence surrounding the sheet P5 shows that there was a clear hypothesis of innocence, namely that R had inadvertently placed on her bed a sheet upon which the applicant had previously emitted semen in circumstances other than involving sexual intercourse with R. The prosecution essentially relied upon two matters to negate that hypothesis: first, the measurements of the sheet P5 and the applicant’s mattress and second, the statement of R that she did not take the sheet P5 from the laundry and place it on her bed.
As to the first matter, although this was heavily relied upon at trial, it has now been properly conceded to have very little weight. As to the second matter, this clearly depends upon the evidence of a witness whose evidence, to use the words in M v The Queen,[34] “contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force”. I have found for the reasons stated above that the learned trial Judge did not adequately put the defence case in this regard.
[34] (1994) 181 CLR 487, 494.
I would grant leave to appeal on the original grounds of appeal. I find that they are made out and that the verdict on count 3 is unsafe and unsatisfactory.
Breach of s 18(1)(b) Evidence Act 1929 (SA)
I revert to a consideration of the application to amend the grounds of appeal so as to complain of a breach of s 18(1)(b) of the Evidence Act 1929 (SA) which relevantly provides as follows:
18—Accused persons competent to give evidence
(1)Every person charged with an offence shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person: Provided as follows:
…
(b) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution;
In the present case the prosecutor, after no more than ten lines of preliminaries, had this to say:[35]
Yet, through all of this, members of the jury, the statements she’s given about the sexual intercourse, she has never wavered when challenged about that. That evidence stands uncontradicted in this Court by other evidence, that is, it stands alone for you to consider uncontradicted.
[35] T220.
After some pages of address, the prosecutor saw fit to conclude his address in similar vein:[36]
But she never retracted this. Her evidence stands uncontradicted before you to decide whether it is capable of supporting the charges beyond reasonable doubt.
[36] T231.
It is important to appreciate that the three counts each involved an allegation of an offence committed in circumstances where only two persons were present, the complainant and the applicant. Further, it was quite obvious in such circumstances that when the prosecutor spoke of R’s evidence being “uncontradicted by other evidence”, the “other evidence” would be taken as a reference to the possibility of the applicant himself giving evidence contradicting R since it was quite impossible for him to call another witness to do so. This is confirmed by the fact that the primary meaning of the word contradict is “to speak against” or “to oppose in speech”[37] and this is indeed its meaning in popular usage.
[37] Shorter Oxford English Dictionary.
Finally, it could not be contended that “contradicted” here meant something other than its usual meaning, perhaps meaning something like “argued to the contrary” or “put in issue”. It was quite obvious that the applicant had pleaded not guilty and was vigorously disputing or “contradicting” through the submissions and cross-examination of his counsel the allegations of R that he had had sexual intercourse with her. Since her evidence was most clearly contradicted in this sense, what meaning could have been conveyed by the prosecutor’s continued strident assertions that in fact her evidence was uncontradicted? In my view, only the usual meaning of that term, namely that the applicant had not spoken against her assertions.
In Siebel v The Queen[38] King CJ (with whom Bollen J concurred) made it very clear that any words which refer to the fact that an accused person has not contradicted prosecution evidence is necessarily comment upon the failure of the accused person to give evidence. Thus his Honour stated:[39]
In Bataillard v The Queen (1907) 4 CLR 1282 … (at 1291) Isaacs J made it clear that the prohibition extends to implied as well as express comment. He said:
If, however, reference, direct or indirect, and either by express words or the most subtle allusion, and however much wrapped up, is made to the fact that the prisoner had the power or right to give evidence on oath, and yet failed to give, or in other words, “refrained from giving”, evidence on oath, there would be a contravention of the subsection now under consideration. The question whether the law has been so contravened must depend in each case on the words used and the circumstances in which they are used.
Those words, of course, have no application to the trial judge under the South Australian section which prohibits the comment only to the prosecution, but they do apply to comment made by counsel for the prosecution. Moreover, the effect of the words used by the prosecution must be judged in the light of the knowledge which the jury possesses that an accused person has the right to give evidence. This was pointed out by Barwick CJ in Bridge v The Queen (1964) 118 CLR 600 at 603-605. His Honour was there referring to the knowledge which a jury must be assumed to have gathered of the accused person’s right to give evidence. It applies with even more force in South Australia where the practice is for the jury to be informed of that right in an address to the general jury panel given by a judge before the sittings commence. In this State, moreover, it is the common practice for the trial judge in the course of a summing up to inform the jury of the right of an accused person to give evidence on oath or to remain silent. An accused person can only contradict, in a practical sense, evidence of events in which he is personally involved by giving evidence and he can only put forward a version of events by giving evidence. It follows, as it seems to me, that any words which refer to the fact that an accused person has not given evidence or has not contradicted prosecution evidence or has not put forward an alternative version of events, is necessarily comment upon the failure of the accused person to give evidence.
(Emphasis added)
[38] (1992) 57 SASR 558.
[39] Ibid 560-561.
Later his Honour said:[40]
It is lawful, in my opinion, for counsel for the prosecution to make the point to the jury that the only version of the facts before them is that proved by the prosecution witnesses and, if counsel for the defence has engaged in speculation as to alternative scenarios, that there is no evidence to support such alternative scenarios. Any comment, however, that the accused person has failed to contradict prosecution witnesses or to provide an alternative version of events, or that he has not given evidence, must, in my opinion, amount to a prohibited comment.
(Emphasis added)
[40] Ibid 562.
His Honour’s use of the disjunctive in the last sentence of each of the two preceding extracts is to be carefully noted. Plainly, his Honour was not saying that each alternative had to be established. Rather, his Honour considered that a statement referring to a failure to contradict alone was per se an infringement of the section. As his Honour later stated:[41]
The comments made by counsel for the prosecution might quite justifiably have been made by the trial judge, but it is to be remembered that what is forbidden to the prosecution is any comment on the failure to give evidence, whether that comment is fair or unfair, balanced or unbalanced, favourable or unfavourable. The policy of the statute is to leave the decision as to what, if any, comment is to be made upon the failure to give evidence to the impartial judgment of the trial judge.
(Emphasis in original)
[41] Ibid.
His Honour notes that the case was to be distinguished from the decision in Stuart v The Queen[42] where the proviso had been applied in circumstances where the trial Judge, to whom the prohibition does not apply, had made comments of greater severity than the prosecutor.
[42] (1959) 101 CLR 1.
In the present case the learned trial Judge referred to the remarks of the prosecutor and said this:[43]
In his address, the prosecutor, Mr White, referred on a couple of occasions to the evidence of the complainant standing uncontradicted. Ladies and gentlemen, I do now and will later in my directions direct you and stress an accused person does not have to prove anything. He has a right given to all members of society to say nothing. His silence must not be used against the accused, must not be used to fill any gaps, if any, in the evidence tendered by the prosecution. It has been said it must not be used as some sort of makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt. All of us in South Australia have the right of silence. I am sure you agree that in giving someone a right, it would then be entirely improper to criticise someone for exercising that right.
[43] Summing up, 12.
With respect, this was an unexceptionable direction, but, as the High Court in Azzopardi v The Queen[44] has stated, it is no more than that to which every accused person in every jurisdiction in Australia is entitled irrespective of whether there also happens to be an additional statutory protection in the nature of 18(1)(b) of the Evidence Act 1929 (SA).
[44] (2001) 205 CLR 50, 70-71.
Where a provision such as s 18(1)(b) Evidence Act 1929 (SA) does apply, it will be rare that a conviction will be saved on appeal by the intervening decision of the trial Judge to give more stringent directions (as in Stuart v The Queen[45]) or, as in the present case, to give ameliorating directions. The true position is as stated by King CJ in Siebel v The Queen:[46]
The rule prohibiting comment by the prosecution upon the failure of an accused person to give evidence is a basic rule for the conduct of a criminal trial. It confers upon an accused person a right to have a trial free of the prohibited comment. The infringement of such a right cannot be lightly overlooked. I think that where such an infringement has occurred, it is necessary for the court to be more than ordinarily vigilant to ensure that the proviso is only applied where the prohibited comment could not reasonably be supposed to have affected the result.
(Emphasis added)
[45] (1959) 101 CLR 1.
[46] (1992) 57 SASR 558, 565. For completeness, I note the decision of the Court of Criminal Appeal in R v Arnold [2003] SASC 422 where the Court found that the prohibition had been infringed but applied the proviso. The comments in that case were far less pointed than in the present case. Further, as Mullighan J made clear, the remarks of the prosecutor in R v Arnold were directed to a matter which the prosecution did not have to prove, namely the reason for the occurrence of the dangerous driving.
I consider the breach here to have been significant in its effect. I would grant permission to add this ground of appeal and grant permission to appeal. I consider that this ground of appeal is made out in its own right insofar as it asserts a breach of s 18(1)(b) Evidence Act 1929 (SA). However, since I consider that the appeal should in any event be allowed on the basis of the original grounds of appeal, I do not consider it necessary finally to determine whether I would allow the appeal on the basis of the amended ground alone.
Conclusion as to the success of the appeal
I consider that the appellant has made out his original grounds of appeal and his further ground of appeal for the reasons given above. In the circumstances, there can be no room for the application of the proviso in the present case and counsel for the Crown quite properly did not contend to the contrary.
Order for retrial or judgment of acquittal?
It is clearly the case that when a verdict is found to be unreasonable or unsafe and unsatisfactory on the basis that it can not be supported by the evidence, a retrial should not be ordered.[47]
[47] Reid v The Queen [1980] AC 343; Andrews v The Queen (1968) 126 CLR 198; Gerakiteys v The Queen (1983) 153 CLR 317; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627.
However, even in cases where it might otherwise be appropriate to order a retrial the Court may refrain from doing so on the basis that the appellant would be faced with a retrial that would proceed on a fundamentally different basis from his first trial. Thus in R v Dolan[48] King CJ upheld the appeal on a number of grounds and stated in relation to the matter of acquittal or retrial:[49]
The most disturbing features of the case are the verdicts of not guilty returned by the jury on the two most serious counts, the one of penetration with a dildo and the other of penetration by the penis. These verdicts are only explicable on the basis that the jury entertained doubt as to the evidence of the girl on these points. She gave clear evidence of penetration on more than one occasion by both the dildo and the penis. The medical evidence was at best from the prosecution’s point of view equivocal. If the credibility of the alleged victim as to these incidents is in doubt, it is impossible to feel any confidence about the truth of the other charges.
If there were another trial upon the counts upon which the appellant was found guilty, the evidence led from the girl could not, as a matter of law, include the dildo incident and the penis incident which were identified as the subject of the charges on which he was acquitted, and in my opinion, could not as a matter of fairness include the other dildo and penile incidents. It would therefore be a fundamentally different story than that put forward at the trial under review and I do not think that a trial conducted under those circumstances could be regarded as satisfactory.
[48] (1992) 58 SASR 501.
[49] Ibid 506.
Similarly, in The Queen v K[50] Doyle CJ (with whom Lander J concurred) allowed the appeal principally upon the ground of a lack of a required warning and associate compounding matters. His Honour then stated:[51]
Although subsequent events cannot impact upon the duty of the trial Judge, it is relevant to note that the jury must have had some reservations about B’s evidence. They acquitted the appellant on count three and on count four. The acquittal is not explicable on the issue of penetration, because the jury were also directed on an alternative verdict of attempt. The acquittal might well be due to confusion which emerged in B’s evidence about whether it was count 3 or count 4 that was linked to the video cassette recorder.
Be that as it may, the jury must have had some doubts about B’s evidence at the end of the day. This simply reinforces the point that this was a case in which it was desirable for the jury to be guided in the way in which doubts in relation to a particular count might affect evidence in relation to other counts.
[50] (1997) 68 SASR 405.
[51] Ibid 411.
His Honour later stated:[52]
The question of whether a retrial should be ordered must be considered in the light of the circumstances of each particular case: Cheatley v The Queen [1981] Tas R 123. Notwithstanding that, it is not uncommon for an order to be made for a retrial.
But there are particular circumstances in this case which lead me to a different conclusion. To begin with, a trial on the two remaining counts would be significantly different from the trial already conducted. In particular, the appellant would lose the benefit of the impact of the evidence given by JJ at the first trial in relation to the video cassette recorder. The appellant would also lose the benefit that he should have got at the first trial from an adequate direction about the possible significance for B’s credibility of the difficulties in the prosecution case relating to counts 3 and 4, and the manner in which those difficulties and any doubt arising from them could affect the jury’s approach to counts 1 and 2. Nor can it be said that the prosecution case is a particularly strong one. In addition, we were informed that the appellant has already served almost six months of the 10 month non-parole period fixed by the trial Judge when he sentenced the appellant on count 1 and count 2.
Taking all those matters into account, I consider that this is an appropriate case in which to substitute a verdict of acquittal rather than to order a retrial.
[52] Ibid 415.
Similarly, Lander J stated:[53]
Whilst I agree with Bleby J that it could not be said a properly directed jury was unlikely to convict or that it would probably acquit there are particular circumstances in this case that make it inappropriate to order a retrial and appropriate to substitute a verdict of acquittal. Those circumstances are identified in the reasons of Doyle CJ. The appellant would lose significant forensic benefits which were available to him on the trial of all four counts but would not be available to him on a retrial of counts one and two. In a matter which depends so much on the assessment of the credibility of the complainant those forensic advantages ought not to be underrated.
[53] Ibid.
And in R v Hansen,[54] Lander J (with whom Doyle CJ concurred) decided against ordering a re-trial on the same basis. His Honour stated:[55]
[157]I think, in this case, unfortunately the verdicts are illogical and cannot be reconciled. The verdicts, in my opinion, must be set aside. That leads to the question as to whether or not it would be appropriate to order a new trial.
[158]The appellant argued that there should be no order for a re-trial. If there were to be a new trial no evidence could be led of counts one to five or the circumstances surrounding those counts. In those circumstances the appellant would lose the benefit of the acquittals he has received in relation to those counts in the further trial. The appellant submitted that, in those circumstances, the trial would proceed on a fundamentally different basis from his first trial.
[159]I agree. I think the appellant would lose the advantage of the acquittals on counts one to five on any retrial. I would not order a re-trial.
[54] (2002) 84 SASR 54.
[55] Ibid 71
The present case is clearly within the category of cases where a retrial would proceed on a fundamentally different basis from the first trial and the applicant would unfairly be deprived of the forensic benefit of the acquittals on counts 1 and 2. In addition, the lack of strength of the prosecution case, when correctly viewed against the true defence case, strongly militates against a retrial.
Finally, I note that King CJ observed in Siebel v The Queen[56] in relation to a similar breach of the Evidence Act 1929 (SA):[57]
There was considerable initial delay in pursuing the investigations. There was further delay in initiating the prosecution. The further delay as a result of the mistrial is the consequence of an error on the part of counsel for the prosecution. In these circumstances, I have reached the conclusion that the interests of justice would not be served by requiring the appellants to stand trial again. In my opinion there should be a verdict and judgment of acquittal of both appellants on all charges in the information.
[56] (1992) 57 SASR 558.
[57] Ibid 564.
In all of the circumstances, I consider that a judgment and verdict of acquittal should be entered.
Orders
I would propose the following orders:
1 Grant permission to appeal on grounds 1 and 2 of appeal.
2 Grant permission to amend the grounds of appeal by adding ground 3 of appeal.
3 Grant permission to appeal on ground 3 of appeal.
4 Allow the appeal and quash the conviction on count 3.
5 Direct that a judgment and verdict of acquittal be entered on count 3.
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