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Court of Criminal Appeal 21 April 2016

RB v R

[2016] NSWCCA 62

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION EFFECT OF R V JOVANOVIC DIRECTION

Citation: RB v R [2016] NSWCCA 62
Court: NSW Court of Criminal Appeal
Date: 21 April 2016
Judge(s): Ward JA, Price J, Adamson J (Adamson J delivered the leading judgment)

Background

The appellant was convicted by a jury in the District Court at Griffith on five counts of sexual offences against his natural daughter, who was a child at the time the conduct occurred. The offences included acts of indecency and multiple counts of sexual intercourse in circumstances of aggravation, with the complainant aged between 10 and 16 across the relevant period.

The Crown case rested substantially on the complainant's evidence, supported by corroborating testimony from her stepmother and a family friend. The stepmother gave evidence of physical details consistent with the complainant's account, including the presence of a book containing sexual illustrations and the appellant's use of a distinctive dressing gown. Both witnesses also gave evidence of admissions made by the appellant at a family barbecue in September 2011, which the appellant largely denied in a subsequent police interview.

The appellant appealed his conviction on a single ground: that the Crown's closing address effectively invited the jury to reason "why would they lie?", thereby creating a risk that the jury would treat the burden of proof as reversed, requiring the appellant to establish that the witnesses had a motive to lie.

  • Whether the Crown's closing address impermissibly invited the jury to engage in "why would they lie?" reasoning, in a manner that amounted to a miscarriage of justice.
  • Whether the trial judge's directions, including a direction following the principles in R v Jovanovic (1997) 42 NSWLR 520, adequately corrected any such impression and preserved the integrity of the trial.

Decision

Adamson J, with whom Ward JA and Price J agreed, dismissed the appeal. Her Honour reviewed the Crown address, the cross-examination of Crown witnesses, and the trial judge's summing-up in their totality, rather than examining the Crown's remarks in isolation.

The Jovanovic direction is a specific judicial instruction that cautions a jury against reasoning that a complainant or witness must be telling the truth simply because no motive to lie has been established. The trial judge delivered this direction as requested. Immediately after giving it, the trial judge also reminded the jury of the recorded police interview and reinforced that the appellant was not required to prove anything.

Adamson J found that, having regard to the whole of the trial, the jury would not have been left with the impression that the appellant bore any onus to establish a motive to lie on the part of any witness. The trial judge's directions were described as ample and correct on both the onus of proof and the standard of beyond reasonable doubt.

The sole ground of appeal was not made out. No miscarriage of justice, nor any error, was established.

Orders Made

  • Leave granted to the appellant to rely on the sole ground of appeal under r 4 of the Criminal Appeal Rules.
  • Appeal dismissed.

Key Takeaways

  • A "why would they lie?" direction risk arises when Crown addresses invite a jury to treat the absence of a proven motive to lie as positive proof of a witness's truthfulness, effectively shifting the burden of proof to the accused.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the adequacy of a Jovanovic direction must be assessed in the context of the entire trial, including the Crown address, cross-examination, and the full summing-up.
  • A Jovanovic direction, properly given and reinforced by a clear reminder of the onus of proof, can be sufficient to dispel any impression that an accused must demonstrate a witness had a motive to lie.
  • No miscarriage of justice was established where the trial judge not only delivered the Jovanovic direction but also anchored it to specific evidence in the trial, namely the recorded police interview, while reiterating the correct standard of proof.
  • Sufficient corroborating evidence existed in this case to support the jury's verdicts independently of whether the corroborating witnesses were found to be truthful, given that the complainant was the only person present during the alleged offences.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Rules (NSW), r 4

Cases:
- R v Jovanovic (1997) 42 NSWLR 520
- Doe v R [2008] NSWCCA 203
- Palmer v The Queen [1998] HCA 2; 193 CLR 1
- R v Roberts [2001] NSWCCA 163