The Court of Appeal has quashed the convictions of P.S. for rape, sexual assault and child neglect after finding that the trial judge's directions to the jury unfairly undermined the defence case.
P.S. had been convicted of one count of rape, four counts of sexual assault and two counts of child neglect. The complainant was his daughter. The allegations concerned the years 2000 to 2004, when she was aged between four and eight and had unsupervised overnight access visits with her father at his mobile home.
The appeal centred on how the trial judge described the defence position during his charge to the jury. Defence counsel had repeatedly put to the complainant that the alleged sexual offending had not happened, while conducting the cross-examination without expressly accusing her of lying.
The trial judge told the jury that, because counsel had said she had not attacked the complainant's character, it had never been suggested that the complainant was deliberately lying rather than mistaken.
Ms Justice Kennedy, delivering the Court of Appeal's judgment, said that was a significant error. The case depended on the jury's assessment of the complainant's credibility and reliability. Although counsel had not expressly used the word "lying", the court held that her cross-examination clearly conveyed that the allegations were fabricated and that the events had never occurred.
The defence requisitioned the judge, who brought the jury back and explained that the defence case was that the complainant was either mistaken or lying. The appeal court accepted that the original error was capable of correction.
However, it held that later remarks in the recharge diluted that correction by suggesting counsel was only then clarifying the defence "as she perceives it to be". That risked leaving the jury with an impression that the defence position had shifted late in the trial.
The Court of Appeal concluded that the overall charge was insufficiently fair and had undermined the defence. It quashed the convictions and said it would hear the parties regarding a retrial.