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South v R

South v R

Case [2007] NSWCCA 117 30 April 2007

Admissibility of Evidence

Appeal

Judicial Review

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: SOUTH v REGINA [2007] NSWCCA 117

HEARING DATE(S): 30 August 2006

JUDGMENT DATE:
30 April 2007

JUDGMENT OF: Hunt AJA at 1; Simpson J at 61; Whealy J at 72

DECISION: 1. The appeal is allowed. 2. The appellant’s conviction is set aside. 3. There is to be new trial of the indictment against the appellant.

CATCHWORDS: Evidence supporting motive for complainant in sexual assault case to lie — Trial judge directs jury that there were a number of reasons it would not find that the complainant was lying, “because why would she lie?” — Invitation to jury to go beyond both the evidence supporting the asserted motive to lie on which the accused relies and the evidence denying it on which the Crown relies, and to ask “Why would the complainant lie?”, is to suggest to the jury that, in the absence of other evidence beyond that on which the accused relies, they should accept the complainant’s evidence — Jury should never be asked to go beyond the evidence on which both parties rely to establish or refute a motive to lie and to consider the question “Why would she lie?”. - Where objection to such a question being asked by the judge is taken by a co-accused, but not by the appellant, and where the objection is overruled by the judge, so that the judge has been given the opportunity to cure the error made, it would be excessively technical to insist that r 4 of the Criminal Appeal Rules denies to the appellant the opportunity to appeal in relation to the error which remained uncorrected.

LEGISLATION CITED: Evidence Act 1995
Criminal Appeal Rules

CASES CITED: Banditt v The Queen (2005) 223 ALR 633
DPP v Morgan [1976] AC 182
Gipp v The Queen (1998) 194 CLR 106
Knight v The Queen (1992) 175 CLR 495
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
Palmer v The Queen (1998) 193 CLR 1
Regina v F (1995) 83 A Crim R 502
Regina v McEwan [1979] 2 NSWLR 926
Regina v Sperotto (1970) 71 SR (NSW) 334
Regina v Tolmie (1995) 37 NSWLR 660
Regina v Uhrig CCA 24 October 1996 [BC 9605087]
Regina v Wilson (2005) 62 NSWLR 346

PARTIES: Scott Phillip SOUTH (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/883

COUNSEL: Ms A Francis (Appellant)
Ms V Lydiard (Respondent)

SOLICITORS: Legal Aid Commission of NSW (S O’Connor) (Appellant)
Solicitor for Public Prosecutions (S Kavanagh) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3313

LOWER COURT JUDICIAL OFFICER: Williams DCJ

LOWER COURT DATE OF DECISION: 1 December 2004

2006/883

HUNT AJA
SIMPSON J
WHEALY J
30 APRIL 2007

SOUTH v REGINA

Judgment

1 HUNT AJA: The appellant, Scott Phillip South, was found guilty by a District Court jury on one count of sexual intercourse without consent in circumstances of aggravation, namely being in the company of another person, a crime which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading South v R

Details

AGLC: South v R [2007] NSWCCA 117
Case: [2007] NSWCCA 117
Decision Date: 30 April 2007

CaseChat Overview and Summary

The case of South v R involved an appeal by the appellant against his conviction for sexual assault. The trial judge directed the jury that there were several reasons why they would not find the complainant was lying, and posed the question "because why would she lie?" This direction was objected to by the co-accused but not by the appellant. The error was not corrected, leading to an appeal against the conviction on the basis that the trial judge's direction invited the jury to consider a motive to lie beyond the evidence relied upon by both parties. The appeal raised issues concerning the proper scope of judicial directions to a jury regarding the credibility of a complainant in a sexual assault case and whether the uncorrected error warranted an appeal.

The central legal issues were whether the trial judge's direction improperly invited the jury to speculate on a motive to lie beyond the evidence presented, and whether the appellant was barred from appealing the error due to the co-accused's objection. The court examined the extent to which a judge should guide a jury in assessing the credibility of a complainant and whether the direction given constituted a misdirection. Additionally, the court assessed whether the appellant's failure to object precluded him from appealing the error, considering the circumstances in which the error occurred and the opportunity for the trial judge to correct it.

The court held that the trial judge's direction was indeed a misdirection as it invited the jury to consider a motive to lie beyond the evidence. However, the court found that it was not excessively technical to permit the appellant to appeal the error despite the co-accused's objection, given that the trial judge had the opportunity to correct the error but failed to do so. The misdirection was deemed to have potentially influenced the jury's assessment of the complainant's credibility, thereby affecting the safety of the appellant's conviction.

Consequently, the appeal was allowed, and the conviction was quashed. The court ordered a retrial, emphasising the importance of judicial impartiality and proper direction to juries in sexual assault cases. The retrial was necessary to ensure that the jury's decision was based on a correct understanding of the evidence and the applicable legal principles.

Orders