SUPREME COURT OF QUEENSLAND
CITATION:
R v SDE [2018] QCA 286
PARTIES:
R
v
SDE
(appellant)FILE NO/S:
CA No 23 of 2018
DC No 545 of 2016DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Cairns – Date of Conviction: 7 February 2018 (Fantin DCJ)
DELIVERED ON:
23 October 2018
DELIVERED AT:
Brisbane
HEARING DATE:
17 October 2018
JUDGES:
Sofronoff P and Morrison JA and Davis J
ORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of two counts of rape – where the appellant called but did not give evidence at trial – where the evidence led by the appellant challenged the complainant’s credibility but did not directly contradict the complainant’s evidence – where the appellant submits that the directions given did not properly instruct the jury how to use the evidence led by the appellant – whether the trial judge not instructing the jury that they need not accept the evidence led by the appellant to find him not guilty amounted to a miscarriage of justice
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, distinguished
R v De Silva[2018] QCA 274, cited
R v Gunewardene [1951] 2 KB 600, considered
R v Hoban[2000] QCA 384, cited
R v Johnson &Honeysett[2013] QCA 91, cited
R v Lapuse [1964] VR 43; [1964] VicRp 7, distinguished
R v Lawrence [2002] 2 Qd R 400; [2001] QCA 441, cited
R v Lavery (2013) 116 SASR 242; [2013] SASCFC 46, cited
R v McBride[2008] QCA 412, followed
RMD v Western Australia [2017] WASCA 70, cited
Salmon v The Queen [2001] WASCA 270, citedCOUNSEL:
M J Copley QC for the appellant
S J Farnden for the respondentSOLICITORS:
McMillan Criminal Law for the appellant
Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: I agree with the reasons of Davis J and the order his Honour proposes.
MORRISON JA: I agree with the reasons of Davis J and the order his Honour proposes.
DAVIS J: The appellant appeals his conviction after a trial in the District Court in Cairns of two counts of rape.[1] Both counts averred that the offences were domestic violence offences.[2] The complainant who, at relevant times lived with her mother and the appellant in Cairns, is the step daughter of the appellant who is married to the complainant’s mother. The first offence was alleged to have occurred in May 2014 and the second in October 2015. As at May 2014, the complainant was 13 years of age and as at October 2015 she was 15.[3]
[1]The jury in an earlier trial in May 2017 was discharged after being unable to reach a verdict.
[2]Criminal Code s 564(3A).
[3]Birth certificate, exhibit 11: Appeal record book (ARB) 277.
The appellant…
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- R v Sde [2018] QCA 286
- Case
- [2018] QCA 286
- Decision Date
CaseChat Overview and Summary
The court found that no Liberato direction was given, as the Crown had accepted, but held that no miscarriage of justice had occurred. The court reasoned that a Liberato direction was not warranted given the nature of the evidence given by the complainant's mother, and that when the summing up was considered as a whole, there was no real risk of impermissible reasoning by the jury. The evidence of the complainant's mother did not directly contradict the complainant's evidence, and thus did not provide an alternative version of events that could lead the jury to accept the complainant's version below the standard of proof beyond reasonable doubt. The court further found that the trial judge had given a proper direction as to the presumption of innocence, the burden of proof, and the standard of proof, as well as an Azzopardi direction, which was appropriate given the appellant had not given evidence.
The court ultimately dismissed the appeal, affirming the conviction of the appellant on both counts of rape.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Crown accepted that no Liberato direction was given. It was submitted though that no miscarriage of justice had occurred because a Liberato direction was not warranted given the nature of the evidence given by the complainant’s mother, and further that when the summing up is considered as a whole there was no real risk of impermissible reasoning by the jury.Consideration The evidence of the complainant’s mother did not directly contradict the evidence of the complainant. Indeed, her evidence corroborated the complainant’s evidence by confirming that the complainant and the appellant travelled together to Brisbane in 2014 and to Townsville in 2015. The complainant’s mother also provided evidence of a further instance of preliminary complaint. What her evidence did, though, was to raise issues from which the appellant hoped the jury would draw a reasonable doubt as to the credibility of the complainant. The complainant’s mother did not provide the jury with an alternative version of events, so there was no danger that if evidence of an alternative version was rejected the jury would accept the complainant’s version to some standard below that of proof beyond reasonable doubt and convict the appellant. Logically, the rejection of the complainant’s mother’s evidence must be based on the acceptance of the credibility of the complainant, which was the central and proper issue for the jury’s consideration. It is difficult to see that there was any real danger of impermissible reasoning following a rejection of the evidence of the complainant’s mother. In any event, the summing up taken as a whole left no risk that the jury would reason in an impermissible way to guilt upon a rejection of the complainant’s mother’s evidence. A proper direction was given as to the presumption of innocence, the burden of proof and the standard of proof.[83][83]Summing up: ARB 224. A direction was given consistently with Azzopardi v The Queen,[84] namely that the fact that the appellant had not given evidence should not be taken against him (an Azzopardi direction). An Azzopardi direction is necessary where the accused has not given evidence even if the accused has called witnesses.[85] The trial judge said:“Finally, I turn to comment on the defendant. The defendant has not given evidence. That is his right. He is not bound to give evidence. The defendant is entitled to insist that the prosecution prove the case against him if it can. And the prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt. The fact that the defendant did not given evidence is not evidence against him. It does not constitute an admission of guilt by conduct, and it may not be used to fill any gaps in the evidence lead by the prosecution. It proves nothing at all.And you must not assume that because he did not give evidence, that adds in some way to the case against him. It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt, and most certainly does not make the task confronting the prosecution any easier. It cannot change the fact that the prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt. The defendant must still satisfy you beyond reasonable doubt that any defence is excluded.”[86][84](2001) 205 CLR 50 at [51].[85]R v Hartfiel [2014] QCA 132 at [3] (Margaret McMurdo P) and [48] (Muir JA, with whom Dalton J agreed), following R v GAJ [2011] QCA 141 at [42].[86]Summing up: ARB 226.