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9
Court of Criminal Appeal 30 April 2007

SOUTH v REGINA

[2007] NSWCCA 117

Sexual offences

Citation: South v Regina [2007] NSWCCA 117
Court: NSW Court of Criminal Appeal
Date: 30 April 2007
Judge(s): Hunt AJA; Simpson J; Whealy J

Background

The appellant was convicted by a District Court jury of one count of aggravated sexual intercourse without consent, the aggravating circumstance being that he acted in the company of another person. The offence carries a maximum sentence of 20 years' imprisonment. The complainant, an 18-year-old woman, alleged that she had been sexually assaulted by the appellant and others at a house party in Campbelltown after consuming alcohol and amphetamine-type drugs.

The appellant's case at trial was that the complainant had been a willing participant. The complainant's credibility was therefore central to the prosecution. The appellant's defence relied on a specific motive the complainant had to lie, arising from the circumstances of the evening, including her claim to a friend that her drink had been "spiked" when she knew she had voluntarily consumed the drugs.

A co-accused, tried alongside the appellant, faced the same charges. Both were convicted. Two other men were discharged after the complainant declined to give evidence at a separate trial, and a third had pleaded guilty.

  • Whether the trial judge's direction to the jury, framed around the rhetorical question "why would she lie?", constituted a misdirection
  • Whether the misdirection caused a substantial miscarriage of justice warranting the conviction being set aside
  • Whether the appellant could raise this ground of appeal given that it was the co-accused, not the appellant, who had objected to the direction at trial
  • Whether the evidence was sufficient to support a conviction on the basis of recklessness as to consent, applying the principles from Regina v Tolmie (1995) 37 NSWLR 660

Decision

The Court found that the trial judge's direction was a serious misdirection. In directing the jury that there were a number of reasons it would not find the complainant was lying "because why would she lie?", the judge invited the jury to go beyond the competing evidence both sides had led on the question of motive to lie. That invitation impermissibly suggested that, absent evidence of a motive to lie beyond what the accused himself had pointed to, the jury should accept the complainant's account. The Court confirmed the principle that a jury should never be directed to ask "why would she lie?" as a general, open-ended question; the jury's task is limited to assessing the evidence each party has actually adduced to establish or refute a motive to lie.

On the procedural question of whether the appellant could appeal on this ground at all, the Court held that applying rule 4 of the Criminal Appeal Rules strictly would be excessively technical in the circumstances. The co-accused had objected to the very same direction at trial and the judge had been given a clear opportunity to correct the error. Because the judge had already had the chance to cure the misdirection and declined to do so, it would be unjust to bar the appellant from relying on the same error on appeal.

The Court accepted that the evidence, properly directed, would have been capable of supporting a verdict based on recklessness as to consent. The complainant's condition following her consumption of alcohol and drugs, and the circumstances of the evening, were sufficient for a jury properly instructed to find that the risk of non-consent was obvious. However, because the misdirection could not be characterised as harmless given credibility was the central issue, the conviction was set aside and a new trial ordered.

Orders Made

  • The appeal is allowed.
  • The appellant's conviction is set aside.
  • There is to be a new trial of the indictment against the appellant.

Key Takeaways

  • A trial judge in a sexual assault case must not direct a jury with the open-ended rhetorical question "why would she lie?" That question invites the jury to go beyond the evidence led by both parties on motive to lie, and amounts to a suggestion that the complainant should be believed in the absence of proven motive to fabricate.
  • The jury's role on credibility is confined to assessing the evidence actually adduced to establish or refute a motive to lie; it is not invited to speculate more broadly about reasons a complainant might or might not have fabricated an allegation.
  • Where a co-accused, rather than the appellant, raised the objection at trial and the judge was given a clear opportunity to correct the error but failed to do so, the Court of Criminal Appeal held it would be excessively technical to apply rule 4 of the Criminal Appeal Rules so as to prevent the appellant from relying on the same error on appeal.
  • Sufficient evidence of recklessness as to consent can exist where the complainant's intoxicated condition and the surrounding circumstances would have made the risk of non-consent obvious to a person of the accused's mental capacity, applying the Tolmie principle.
  • A misdirection on complainant credibility will not be treated as harmless when the entire trial turns on whether the jury accepts the complainant's evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J (aggravated sexual intercourse without consent)
- Evidence Act 1995 (NSW)
- Criminal Appeal Rules, r 4

Cases
- 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
- Regina v Wilson (2005) 62 NSWLR 346