R v SCL; R v SCL; Ex parte Attorney-General (Qld)

Here, the court considered whether a guilty verdict of one count of rape of a seven year old girl (“C”) was unreasonable or insupportable on the evidence. Concurrently, it considered an appeal against sentence of the Attorney-General who contended that it was manifestly inadequate having regard to the seriousness of penile rape and the appellant’s position of loco parentis.

The background to the complaint was quite important. Briefly, at the time of the alleged offence the appellant was in a relationship with the complainant’s mother. The duration of that relationship was some 3 years, during which time a child was born. [4]. After the relationship broke down disputes arose as to access to the child. [5], [6]. After one such dispute, which involved a physical altercation, C’s grandmother complained to police that the appellant had raped C many times. [7]. The complaint was investigated and C was interviewed. [8]. Subsequently the appellant was interviewed, denied any offending behaviour, and made several statements which, at the trial, the prosecution argued were lies which were explained by a consciousness of guilt, as such corroborating C’s testimony.  [9]. 

Those lies related to his denial that he had ever been alone with the complainant’s mother’s children nor slept in the same bed as the complainant.  At trial, the complainant’s mother gave evidence that she had once found the appellant asleep in the complainant’s bed in the bedroom that she shared with her sister. The prosecution alleged the inconsistencies between the appellant’s evidence and the evidence of the complainant’s mother were suggestive of three lies told by the appellant. [23], [31]–[34].

Was there a miscarriage

The core issue on appeal was whether that part of the prosecution case, and the way in which the jury was instructed by the judge about it, resulted in a miscarriage of justice. [9]. In summing up, the learned trial judge identified four lies [46] and directed the jury that they must be satisfied that an alleged lie revealed a knowledge of the offence in order to be probative of guilt, but suggested a line of reasoning not specifically explained by the prosecutor. [38]. Ultimately, after objection from defence counsel, [56] the learned trial judge redirected the jury as to the third lie. Given that sequence of events, the appellant contended that the trial judge erred in giving the direction on the alleged lies and that the direction was otherwise deficient. The issue for determination was whether the misdirection and characterisation of the lies caused a miscarriage of justice.

In the event the jury was satisfied that a lie related to a material issue, but they had to be persuaded that the appellant told the lie in circumstances in which the explanation for the lie was that he knew the truth would implicate him in the offence: see Edwards v The Queen  (1993) 178 CLR 193, 211.  This required not only the precise identification of the lie, but also “the circumstances and events that are said to indicate whether it constitutes an admission against interest”: see Edwards v The Queen  (1993) 178 CLR 193, 210–211.

At that point in their deliberations, the jury then had to be satisfied of two things, described in Edwards as:

“And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of ‘a realisation of guilt and a fear of the truth’.” (see R v Lucas (Ruth) [1981] QB 720, 724).

In other words, the critical aspect was what (if anything) the lie itself revealed about the appellant’s mind. [61].

In addressing whether it was open to the jury to conclude that the lie revealed a knowledge of the offence or some aspect of it and a fear of the truth, the court examined each separately. [62]–[66]. Following that exercise it formed the view that “none of the alleged lies should have been left for the jury to consider as Edwards lies.  There was, thereby, a miscarriage of justice.  Indeed if any of them was incapable of being considered an Edwards lie, there was a miscarriage of justice because of a real possibility that the jury’s use of the lie in that way deprived the appellant of an acquittal”. [67].

In addition to the above, the court observed that the jury’s role had been further complicated by the imprecision in the prosecutor’s identification of the lies; the way in which the prosecutor’s argument differed from what was said by his Honour to the jury when describing it; [68] and the required redirection, which was “likely to have contributed to the burden of the jury’s task”. [71]. The court concluded that in all the circumstances, the prospect of an acquittal had been “lost” to the appellant from impermissible reasoning by the jury about the alleged lies. [72]. 

Notwithstanding the above conclusion, in its consideration of whether the verdict was unreasonable, in that it was not open to the jury to convict the appellant, it was determined that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. [78].

Given its decision to set aside the conviction, the court did not consider the appeal by the Attorney?General against the sentence.  It was ordered as follows:

1.Allow the appeal against conviction.

2.Quash the conviction.

3.Order that the appellant be retried.

4.Dismiss the appeal against sentence by the Attorney?General. [79].