R v Smith - [2013] SASCFC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMITH
[2013] SASCFC 128
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Blue and The Honourable Justice Nicholson)
22 November 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - CREDIBILITY - OTHER MATTERS
This is an application for permission to appeal against conviction. The defendant and applicant was convicted following a trial before a jury of the offence of persistent sexual exploitation of a child. The defendant was the brother of the complainant’s step-father. The defendant and the complainant both gave evidence. The prosecutor made statements during his closing address which, according to defence counsel, suggested that the defendant bore an onus to satisfy the jury that the complainant had a motive to lie or had concocted her story. The Judge directed the jury that the prosecution bore the onus of establishing that the complainant gave truthful and reliable evidence, and that the defendant was not required to give any explanation for why the complainant might lie.
Whether the Judge erred in failing to discharge the jury and order a retrial. Whether the directions of the Judge regarding credibility and reliability would have led to a risk that the jury would conflate the two concepts.
Held per the Court (dismissing the application for permission to appeal):
(1) The submissions of the prosecutor would not have had such a prejudicial effect as to give rise to a miscarriage of justice (at [12]). Any possibility of prejudice was overcome by the directions of the Judge (at [11]-[12]).
(2) The Judge’s directions regarding credibility and reliability were clear and unambiguous (at [16]).

R v SMITH
[2013] SASCFC 128
Court of Criminal Appeal: Gray, Blue and Nicholson JJ
THE COURT.

This is an application for permission to appeal against conviction.
On 5 August 2013, the defendant and applicant, Matthew Raymond Smith, following a trial in the District Court, was convicted by unanimous jury verdict of the offence of persistent sexual exploitation of a child contrary to section 50(1) of the Criminal Law Consolidation Act 1935 (SA). The amended particulars of the offence provided as part of the Information were as follows:
Matthew Raymond Smith between the 13th day of August 2002 and the 31st day of December 2007 at Holden Hill and Elizabeth South, over a period of not less than three days, committed more than one act of sexual exploitation of [the complainant], a person under the age of 17 years, by touching her vagina and breasts, hugging and kissing her, inserting his penis into her vagina, attempting to insert his penis into her vagina, touching his penis whilst in her presence, causing her to touch and rub his penis, causing her to lick his penis, licking her vagina and touching her face and mouth with his penis.
It was the prosecution case that the defendant commenced sexually abusing the female complaint when she was aged about 10 or 11 years and continued to do so over a number of years. The defendant was the brother of the step-father of the complainant. It was alleged that the complainant’s step-father also abused her. Evidence was led by the prosecution from the complainant, her mother and a friend to whom it was said that there had been an initial complaint. In addition, the prosecution tendered a number of exhibits, including the plans of two relevant house premises and photographs of both premises.
The defendant gave evidence in his defence in which he denied that any sexual abuse had occurred. The jury was confronted with a stark case of oath against oath in which either the complainant or the defendant was not telling the truth.
On the hearing of the application, it was contended by the defendant that the prosecutor had, during his final address, made references that suggested that the defendant bore an onus to satisfy the jury that the complainant had a motive to lie, or had engaged in concoction. It was contended that the insidious nature of these suggestions was such that the Judge should have discharged the jury and ordered a retrial. It was acknowledged that the Judge had given a direction on the topic, but it was said that this direction and, for that matter, any direction, could not have resolved the irreparable prejudice that had arisen.
During the course of cross-examination of the complainant, the defence did not directly raise or discuss the question of motive to lie or concoction. There was, however, a suggestion by the defendant in giving evidence that the complainant was not happy when she was asked to move out of the defendant’s house in 2011. This gave rise to the following interchange between the Judge and defence counsel:
HIS HONOUR:  … Is it expected, from your point of view, [defence counsel], that you'll be raising any question about a motive to lie or not? Will you be raising that?
[DEFENCE COUNSEL]:       A motive to lie?
HIS HONOUR  You asked the questions whether the complainant was angry at being removed from the house in Tasmania and whether she might have had some situation that she was angry about the family generally. Do you intend to raise any of those matters at all?
[DEFENCE COUNSEL]:               I did put it.
HIS HONOUR:                  Will you be raising that?
[DEFENCE COUNSEL]:               I'm not sure at this stage.
This interchange occurred shortly before the prosecutor was to commence his final address.
In the course of the prosecutor’s final address, he made submissions on the question of the complainant’s truthfulness. In particular, he said:
After everything you've seen and heard in this trial, do you really doubt for one moment the truth of [the complainant’s] evidence of sexual abuse by the accused? Do you really think [the complainant] has concocted some elaborate story of sexual abuse by the accused, exposed herself to you in a very sad and intimate way out of some weird motive to get the accused?
I've started my address with those questions because in a roundabout way they pretty much summarise what this case is all about. [The complainant] has come along and told you, to the best of her recollection, the sexual offending she experienced by the accused. The accused denies the offending and by implication his case is that she just made it all up.
The prosecution case is that you can treat [the complainant] as an honest and credible witness and accept her evidence beyond reasonable doubt. Throughout the course of this address I'll make some suggestions to you about how you might go about coming to this conclusion.
Later, the prosecutor further observed:
Pausing there, they might sound like mundane details: PlayStation, pyjamas and alcoholic drink. But what are these details? Are they the imagination of a wicked girl who is making up a story or are they the details of a truthful witness narrating an event?
At the conclusion of the prosecutor’s address, defence counsel sought the discharge of the jury. The following interchange occurred:
[DEFENCE COUNSEL]:               During the course of his closing address my learned friend raised a number of issues. Firstly he referred to the fact that there was suggested on the part of the defence some weird motive. There was also a suggestion that there was a lack of animosity and therefore there can be no motive.
In my submission that's inappropriate. That reverses the onus of proof.
HIS HONOUR:  I intend to give directions about that. I intend to say to the jury: 'The question raised is ... you must always remember [the accused] doesn't have to prove anything.' What do you say about that?
[DEFENCE COUNSEL]:               It wasn't my intention to go there at all.
HIS HONOUR:  The jury might be thinking the very same thing [defence counsel] and therefore I'll give you the opportunity to say about the reverse the onus of proof. I'll leave it to you, it's not a basis for discharging the jury.
[DEFENCE COUNSEL]:               Again, the suggestion we are suggesting a concoction falls within that and goes way over line. The second matter my learned friend refers to is the failure to comply with Brown and Dunn. That's highly inappropriate and highly unfair.
HIS HONOUR:  I'll give directions that a lot of matters raised by [counsel for the prosecution] were collateral matters, that you need to prove nothing at all, to clear up any discrepancy. Do you want to say anything about that?
[DEFENCE COUNSEL]:               For example, the differences in relation to shifting furniture were not put. There were a range of reasons why they may not be put, one of which didn't occur to me.
HIS HONOUR:  I understand that. I intend to go into brief matters about that.
[DEFENCE COUNSEL]:               I assume your Honour is against me.
HIS HONOUR:                  Yes, I am.
It is to be noted that, contrary to the submission of defence counsel, the prosecutor stopped short of suggesting that it was part of the defence case that the complainant had some “weird motive”, or that it was the defence case that there had been concoction. The submission of defence counsel wrongly attributed such suggestions to the prosecution. It is also to be borne in mind that, at the time when he gave his final address, the prosecutor had to anticipate that defence counsel might yet raise matters concerning motive to lie, as evidenced by defence counsel’s earlier referred to exchange with the Judge.
Any possibility of prejudice was, in any event, overcome by the directions of the trial Judge. These were given in the following terms:
[Counsel for the prosecution] mentioned to you in his address, ladies and gentlemen, that there might be some suggestion of the complainant having a motive to lie. In fact, [defence counsel] did not make any such suggestion at all. [Counsel for the prosecution] also referred to whether the evidence of the complainant was concocted. You might have thought, in terms of that address, that the only issue for you to determine is whether the complainant was truthful and reliable or whether she had some odd motive to lie.
Ladies and gentlemen, as I say, that was not raised by [defence counsel] at all. If it had been suggested by [defence counsel], that the complainant had such a motive then the motive suggested by him would have been a factor relevant to your assessment of the complainant’s credit. He did not put forward such a motive. I am not criticising anyone at all about this. It was most unfortunate that it was raised in that manner, by [counsel for the prosecution].
You see when raised that way it has a tendency to reverse the onus of proof. I direct you that [the defendant] does not have to give any explanation as to why the complainant might have given a false account. You must always remember, as the accused, [the defendant] does not have to prove anything at all.
It is important I say that to you. The prosecution bears the onus of establishing that the complainant gave a truthful and a reliable account of the events. A person like [the defendant] could not possibly know what was going on in the mind of the complainant and in those circumstances, he could not possibly prove or attempt to prove any motive to lie.
I direct you that the complainant’s evidence gains no credibility from the absence of a proved explanation or motive to lie. You must not even think about that. An accused person could not possibly know what was going on in the mind of the complainant. There could be all sorts of reasons as to why someone might say something at a particular time but you must not think for one moment that it falls upon the accused to prove anything.
In these circumstances, we do not consider that the submissions and observations of the prosecutor would have had such a prejudicial effect as to give rise to a miscarriage of justice.[1] We do not consider there to be any substance to this complaint.
[1] R v Palmer (1998) 193 CLR 1.
The remaining matter of complaint was that the directions of the trial Judge failed to distinguish between credibility and reliability in circumstances in which it was suggested that the jury would be left in confusion on these topics and may have reasoned that simply because they considered that the complainant was a credible witness, she was also reliable. In other words, it was suggested that the two concepts were conflated.
It is to be noted that during the prosecutor’s final address, the difference between credibility and reliability was stressed in the following terms:
As part of his directions to you, his Honour will explain the two basic ways in which you can assess the evidence of a witness: reliability and credibility. The reliability of a witness is all about whether you can trust or rely on the content, the details of a witness's evidence.
Is their evidence accurate? Is it reliable? The credibility of a witness relates to their honesty and integrity. Are they essentially telling you the truth? Are they being honest and open with you? Is there anything that causes you to distrust or be mindful about their truthfulness?
The trial Judge, when summing up, addressed the question of truthfulness and accuracy as follows:
… The questions for you are these: firstly, do you accept that you have a truthful witness? If you are satisfied you have a truthful witness, is the witness nevertheless accurate in everything he or she says?
I am sure you know from your own experiences of life that it is not unknown for a person who is very truthful to become unreliable because of a lapse of sufficient memory, confusion, stress, illness or a myriad of other reasons.
You will appreciate that these people were all asked to give evidence about events seven years ago. You might think it is hardly surprising that some could not remember specific dates or events. A witness may be genuinely attempting to tell you the truth but be mistaken about it.
It does not follow that because a witness is unreliable about some evidence, that that witness ought not be accepted on other parts of the evidence. If you found that a witness has deliberately lied to you on a topic, that might cause you to examine the balance of the witness’s evidence with special care.
The Judge maintained and reiterated this distinction on several occasions when addressing the specific evidence in the trial.
The jury could not have been left in any confusion as to the meaning of credibility and reliability. The Judge’s directions were clear and unambiguous. There is no substance to this complaint.
We refuse permission to appeal.