Clark v Stingel

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3704 of 2007

GEOFFREY CLARK
	Appellant
v
CAROL ANNE STINGEL	Respondent

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JUDGES:	WARREN CJ, CHERNOV and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 August 2007
DATE OF JUDGMENT:	11 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 292

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Civil appeal – Rape – Adduce new evidence – Standard of proof and application of rule in Briginshaw v Briginshaw – Inadequate charge as to delay – Longman warning – Instruction to jury – Whether failure to give proper direction on why respondent would lie – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Forrest QC with Ms A L Robertson	Coadys
For the Respondent	Mr T P Tobin SC with Mr S M Roseman	TressCox

WARREN CJ
CHERNOV JA
KELLAM JA:

By a writ issued in the County Court on 26 August 2002 the respondent commenced an action for damages against the appellant. She alleged that the appellant, in company with others, assaulted her sexually by raping her on two separate occasions in March and April 1971.

The trial of the proceeding came on before a judge and a jury of six persons in the County Court at Melbourne in January 2007. On 31 January 2007 the jury, having found that the appellant had committed the alleged sexual assaults, awarded the respondent a sum of $20,000 in damages.

The appellant has appealed against the judgment entered in favour of the respondent on a number of grounds. In addition and by application filed 1 June 2007 the appellant seeks leave to adduce fresh evidence on the appeal. The fresh evidence sought to be adduced is documentary in nature, being a Youth Welfare Division record card relating to one Robert John Wordie, extracts from Victoria Police records relating to Robert Wordie, together with a certified extract of an order made by the Preston Children’s Court on 26 March 1971 in relation to Robert Wordie. The Court permitted the production of the documents in question before it in order to consider whether leave should be granted to permit the appellant to adduce and rely upon such alleged fresh evidence.

Before dealing with the issues raised in the appeal, it is necessary to summarise briefly the relevant evidence given in the trial of the proceeding and to deal with the admissibility of the additional evidence sought to be adduced by the appellant on the appeal.

Evidence of the Respondent

The ‘Cannon Hill’ incident

The respondent gave evidence that she was born in 1955 and spent her childhood years living in Warrnambool. She left school in 1970, having completed year 9. She gave evidence that she first met the appellant during the summer of 1970-1971. She described an incident involving the appellant that took place at night in a car park near Cannon Hill in Warrnambool where she was present with a group of young people including a friend, Deirdre Price. The appellant, in company with two other males, one of whom was said by the respondent to be Wordie Lowe, approached her group of ‘approximately four or five girls and about three guys’. The appellant called out for Deirdre Price to come over to him. When she did, he took her by the arm and, in company with Wordie Lowe and another male, led her over a nearby rise and out of sight. Some time later the respondent saw Deirdre return to the carpark and observed that she was crying. Other than stating that she was ‘not sure whether it was just before Christmas or just after’, the respondent was unable to say precisely when this event had occurred.

The ‘psychiatric patient’ incident

The respondent said that the next time she saw the appellant was on a Sunday in late February of 1971 when she was near the MLC building in Warrnambool on the corner of Koroit and Liebig Streets with her two friends, Debbie Nash and Kerry Dart. The three were sitting and chatting. She observed the appellant, who was with Lionel Clark, on the other side of the street. The respondent said that she was then tapped on the shoulder by a man whom she had never seen before. That man told her that the appellant had told him that she was in love with the appellant and that he wanted to marry her. She said that the three girls were scared by this and ran for safety into nearby underground toilets. The man followed them and tried to knock down the door of her cubicle. The respondent said that the man left after a male voice called out to him to leave the toilets. A little later, the three girls went upstairs to street level and found the appellant there, giggling. The appellant told the respondent that it was he who had sent the man to speak to her and that the man was an in-patient of a local psychiatric institution. The respondent asked the appellant why he did this and he replied: ‘Because I can, I am Geoff Clark, I can do anything I want.’

The ‘Botanical Gardens’ incident

The next occasion on which the respondent said that she saw the appellant was in mid or late March 1971, shortly after her sixteenth birthday, which was on 9 March 1971. She said that she had had no sexual experience up to that point in time, but that on the Sunday after her sixteenth birthday she had what she described as a sexual experience with one Gerard Ryan when he placed his fingers in her vagina. His family, she said, had had some involvement with greyhound racing training. She said that ‘a week or so [after this event]’ she went to the Warrnambool Greyhound Races for the purpose of seeing Gerard Ryan. She went there with other young women, including Deidre Price, Kerry Dart, and Debbie and Pam Nash. She arrived at the greyhound track at five minutes to eight o’clock but was unable to establish if Gerard Ryan was coming.

Whilst she was at the entrance to the greyhound track she saw the appellant walk into the grounds in company with Lennie Lovett, Lionel Clark,[1] Wordie Lowe, Stephen Clark, Glen Price and Ian Clark. She decided to leave and commenced to walk home. As she was walking a car came from behind her and parked on the other side of the street. She said that the driver was Ian Clark, whom she knew and considered to be a good friend. She observed the appellant and the men whom she had seen previously enter the greyhound race track. She said that Wordie Lowe and Stephen Clark came across the street to her and grabbed her gently by the arms. The respondent knew both those two persons and regarded them as her friends. One of them told her that the appellant ‘had a game that he wanted to play in the gardens’. They started to lead her across the street towards the Warrnambool Botanical Gardens, but the respondent told them that if the appellant had something to say to her he could do so in the street because she did not intend to go to the gardens. They told her that it was going to be a ‘good game’ and that it would not hurt her. The respondent said that she had started to struggle but was forced into the Botanical Gardens by the two men. There she saw the appellant, who was standing before her wearing a jacket and t-shirt but no trousers. He had an erection. The respondent gave evidence that she was then undressed by Glen Price and Wordie Lowe and was thereafter raped by the appellant. Following that she was raped by Lionel Clark (Proctor), then Lennie Lovett, Wordie Lowe, Stephen Clark, Glen Price and Lennie Ryan. She said that Ian Clark was present throughout this period but that he did not rape her.
[1]Later and in the course of cross-examination the respondent said that the person she referred to as Lionel Clark was also known as Lionel Proctor.

The respondent gave evidence that on the following Saturday morning, she walked past Wordie Lowe and Stephen Clark in the main street of Warrnambool and Clark said to her: ‘Tell anyone … ‘ and then ran his finger across his throat.

The ‘sand dunes’ incident

The respondent gave evidence that on a Sunday approximately two weeks after the Botanical Gardens incident, she went down to meet a girlfriend, Lynette, who worked in Warrnambool at a fish and chip shop. As she was walking along Liebig Street she observed a car parked at the side of the road. Ian Clark was sitting at the wheel and Wordie Lowe and Stephen Clark were in the front seat. In the back seat were two females, Pam Nash and Deirdre Price. They called her over to them. She said that she went over and ‘ended up getting in the back seat and chatting with the girls’ and then Ian Clark drove off. She said that when she got in the back of the car it was her intention to ‘just sit and have a chat with the girls’ before her friend Lynette finished work at the fish and chip shop. Ian Clark drove them to an area near the beach and, as they arrived, she saw the appellant and Lionel Clark (Proctor) standing there. Ian Clark, Stephen Clark and Wordie Lowe got out of the car and walked over to them. The respondent got out of the car with the other two girls, but Wordie Lowe and Stephen Clark came over and grabbed her as they had on the occasion of the first rape at the Botanical Gardens. They told her that the appellant wanted to see her. She said ‘No, I’m not doing it, not this time. Leave me alone’. Notwithstanding this they continued to drag her towards to the appellant. She broke away and ran into the sand dunes, but they caught her and she was dragged to the beach to the appellant and Lionel Clark. There was a jacket lying on the sand and the appellant told her to get undressed. The bottom part of her clothing was removed and she was held down by the shoulders and head and the appellant proceeded to rape her. The respondent said that just before the rape took place one of the girls, whom she believed to be Deirdre Price, came over the top of the sand dune and that the appellant said to her: ‘Go away or the same thing will happen to you.’ Following penetration by the appellant the respondent was raped by Lionel Clark (Proctor), Wordie Lowe and Stephen Clark.

The respondent gave evidence that some weeks later, on a Sunday morning, she was walking along Koroit Street in Warrnambool towards the bowling alley. As she was walking along, Bernice Clark called out to her. The respondent did not know her well but knew her as a member of the Koori community. Bernice Clark accused the respondent of having spread rumours that her boyfriend had raped the respondent. As this was being said to her the respondent saw the appellant standing on the veranda of the house laughing. He was with Glen Price, Stephen Clark, Kerry Dart and Debbie Nash. Bernice Clark then assaulted the respondent physically causing her to suffer a ‘fat lip’.

In July 2000 the respondent made two statements to police about the two rapes.

Evidence called for the appellant

The appellant gave evidence at the trial. He said that the alleged rapes did not occur. He gave evidence that he had been sentenced to 12 months’ detention in a Youth Training Centre (in Malmsbury) on 17 June 1970. He said that he had remained in custody until 8 February 1971 when he was released on parole. He said that it was a condition of his parole that he ‘stay’ with his parents. His father lived in St Kilda and his mother lived in Fitzroy and he stayed principally with his father who worked at the dry dock on the Melbourne wharves. The appellant obtained work there, cleaning out chain lockers, painting ships and undertaking ship repairs. He said that whilst he was in youth detention at Malmsbury he was never released on weekend leave, although he said that some people ‘may have’ been released from there on weekend leave.

He said that he knew Lionel Proctor from his Warrnambool days and that Proctor had been ‘in Malmsbury’ at the same time as he had been. The appellant said that Proctor was in Malmsbury ‘just before and just after Christmas in 1970’.

The appellant gave evidence that prior to being sentenced to youth detention he had played football for South Warrnambool. He said that the policeman who had arrested him was involved heavily in that football club and that it had been made clear to him that he would not be welcome back after completion of his youth detention. He said that after his release from Malmsbury and at the end of March, or in April of 1971, he commenced to play football with Westgarth Football Club in Melbourne. He played five or six games with that club. When his parole period expired in June 1971 he returned to play football in Warrnambool. He said that whilst he was on parole he did not return to Warrnambool at all. He said that he played his first game for a Warrnambool Club, Dennington, on 3 July 1971 and subsequently was cleared to play for Port Fairy. He said that he was recruited to play for Port Fairy Football Club by the coach who was a former school teacher of his, Mr Grant McArthur.

Mr McArthur gave evidence by video link. He said that the appellant had moved into his home in Port Fairy in about the middle of the season in 1971 and had played at Port Fairy Football Club from then until the end of the season.

The appellant also called Debra Swan and Pam Dart who gave evidence to the effect that in 1971 they were known as Debbie and Pam Nash. The respondent gave evidence that Debbie Nash, as she was then known, was with her at the time of the psychiatric patient incident. In her evidence Debra Swan said that she was born on 20 July 1955 and accordingly was aged 15 years at Christmas time in 1970. She said that she had known the appellant at that time, he being partner to a friend of hers. She said that she was also acquainted with the respondent at the time. She said that she knew nothing of having been to the greyhound races in company with the respondent. She had no recollection of the psychiatric patient incident. She denied having observed an assault upon the respondent by Bernice Clark.

Pam Dart gave evidence that she was born on 22 September 1957 and was thus aged 13 years at Christmas time in 1970. It will be recalled that the respondent gave evidence that Pam Nash, as she was then known, was present at the greyhound track shortly before the Botanical Gardens incident, and was in the car when the respondent was driven to the beach soon before the sand dunes incident. Ms Dart gave evidence that she knew both the appellant and the respondent in 1971. She said she had no recollection of attending at the greyhound races. She also said that she had no recollection of having been present at the time of the sand dunes incident.

Judith McKenna, who was also called by the appellant, said that she had been brought up as a foster sister of Wordie Lowe. She said that the appellant was her natural half brother. She gave evidence that she had kept regular contact with Wordie Lowe and that, at the time of the hearing, he was in prison.

As we have said, the jury found that the appellant had committed the alleged sexual assaults and awarded damages in favour of the respondent.

Application to adduce fresh evidence on appeal

It is convenient to deal now with the additional evidence that was sought to be tendered by the appellant in the appeal. That evidence was said to go to the question of the likelihood of Wordie Lowe being present at the Cannon Hill incident and the alleged rapes as claimed by the respondent. It will be recalled that she said in her evidence that, at the Cannon Hill incident, the appellant was in the company of Wordie Lowe and that at each of the two rapes she was assaulted not only by the appellant but also by others, including Lionel Clark (Proctor) and Wordie Lowe. In the course of the trial, counsel for the appellant sought to tender a police criminal history sheet in respect of Lionel Proctor. The criminal history sheet stated that on 11 August 1970 Lionel Proctor had been sentenced to two years’ detention in a Youth Training Centre. The criminal history sheet had attached to it an ‘Antecedent Report’ which contained a notation that Proctor had escaped from Malmsbury Youth Training Centre on 13 April 1971 and that he was convicted of that offence on 21 May 1971. The respondent’s counsel opposed the tendering of the history sheet partly on the grounds that ‘ … it was well known, those times, that those people who were attending youth training centres had leave from those youth training centres from time to time’. The following exchange then took place between the trial judge and counsel for the appellant on 23 January 2007:

COUNSEL:We want to prove not so much the conviction but when he was sentenced and the conviction won’t record the antecedent report aspect which shows if the jury accepted that he was in custody up until April 1971, a month after these alleged matters occurred.
HIS HONOUR:      But it doesn’t say anything about leave. Now the fact that …
COUNSEL:Your Honour, that’s a matter that can be put the jury if someone wants to.
HIS HONOUR:      … people in youth training centres got leave. You see, I don’t think you can go to the jury on the basis of this and say, ‘this proves he was in custody on every day from the day he was sentenced until the day he escaped.’ As far as I am aware children – we’ll call them that – in youth training centres got leave on weekends and birthdays and other occasions regularly.
COUNSEL:I would readily accept, your Honour, that some children got leave …
HIS HONOUR:      Yes.
COUNSEL:… not to say all children got leave.
HIS HONOUR:      No if they behave themselves that was a reward, they got leave.
COUNSEL:Yes that’s right.
HIS HONOUR:      I don’t believe you’re entitled to go to the jury and say ‘on the basis of this evidence you can readily accept that this person was in custody every day from the day he was convicted until the day he escaped.’
COUNSEL:No, I agree with that.
HIS HONOUR:      Alright if you agree with that I’ll let you use it.
COUNSEL:Thank you your Honour.

Soon thereafter the appellant commenced his evidence-in-chief. In the course of his evidence-in-chief the following evidence was given on 27 January 2007 :
‘QUESTION: While you were in Malmsbury were you ever released on weekend leave?

ANSWER:               No.
QUESTION:           Did some people get released on weekend leave?
ANSWER:               They may have.
QUESTION:Do you know a person named Lionel Proctor from your Warrnambool days?
ANSWER:Yes Lionel grew up and went to school with me at Framlingham and he was in Malmsbury at the same time.

Following that evidence the criminal history sheet of Lionel Proctor was tendered.

On the following day, 24 January 2007, counsel for the appellant sought to tender the criminal history sheet of Robert John Wordie. It was common ground between the parties that Robert John Wordie was the same person who was referred to in the evidence as Wordie Lowe. The criminal history sheet purported to show that on 26 March 1971 Wordie Lowe was admitted to the care of the Social Welfare Department by order of the Preston Children’s Court. Counsel for the respondent opposed the tendering of the document on the basis that the record did nothing more than establish that Wordie Lowe was admitted to be a Ward of the State on 26 March 1971 and that no other inference could be drawn from it. The following exchange took place between counsel for the appellant and his Honour:

COUNSEL:Your Honour, it is an inference [that he remained in that situation during the relevant period] that the jury is capable of drawing if they wish to. They don’t have to. Again the reason that we are in a position of putting evidence such as this in is because these complaints were made for the first time 30 years after these events. The defendant can’t produce better evidence than that.
HIS HONOUR: But you have known for some time about Mr Wordie Lowe.
COUNSEL:No we have known about his existence, we got the subpoenaed records, we couldn’t get the records before now and we got them for the first time today. I think they were produced to the Court yesterday.

HIS HONOUR: Why didn’t you get them before this?
COUNSEL:We didn’t try your Honour. We have been, as your Honour would appreciate, preparing this case as we go with limited funds and with difficulty.

Counsel then informed his Honour that Wordie Lowe was incarcerated in Port Phillip Prison having been sentenced to a prison term by Bongiorno J in May 2000. Counsel referred to the sentencing remarks of Bongiorno J which made reference to a neurologist’s report which stated that at the time of examination in 2001 Wordie Lowe ‘had only a marginal understanding or grip on the world’ and that he ‘lacked understanding of many of the questions’ asked of him. His Honour then said:

HIS HONOUR: That is all very well and I am aware in the circumstances you are owed a certain degree of latitude. From what you have told me about what Bongiorno J said when sentencing Lowe I think it would probably be, although I haven’t finally concluded on it, but it would probably be unfair for your side to be criticised for not getting a gaol order to bring him here, and for other reasons too, but as far as the criminal history sheet is concerned I’m not prepared to allow you to put that to the jury and ask them to draw an inference that as of 26 March 1971 he was in some sort of custody or under some constraints on his liberty by being a Ward of the State. I don’t think you can draw that inference. The jury can’t speculate. They can only draw a reasonable inference and I don’t think from that material you can say that as at 26 March he was in some sort of custody. The order might have been made ex parte for all I know.

COUNSEL:             There is nothing to suggest it was your Honour.
HIS HONOUR:      No but there is nothing to suggest it wasn’t.
COUNSEL:I’m not familiar with these matters but I don’t know whether despite what your Honour said that people were made Wards of the State ex parte.
HIS HONOUR:      The proceedings are usually between their parents and the State. It is not necessary for the child to be in court.
COUNSEL:I won’t argue with your Honour.
HIS HONOUR:      No I’m sorry but that is my experience on this bench that often these proceedings are conducted without the child being there.
COUNSEL:Yes, I’m mindful – I’ll return those documents to the Court – I’m mindful about what your Honour says about the matters of comment by my learned friend as he has on several occasions already about the availability of Mr Lowe.

There was no further discussion about that matter in the course of the trial. But as stated earlier, by application dated 1 June 2007, the appellant seeks leave to adduce as fresh evidence a Youth Welfare Division record card relating to Robert Wordie, extracts from Victoria Police records relating to Robert Wordie, together with a certified extract of an order made on 26 March 1971 by the Preston Children’s Court in relation to Robert Wordie (‘the new evidence’). It would appear that the extracts from the Victoria Police records are the documents which had been sought to be tendered in the course of the trial. The other two documents, however, have been obtained by the appellants subsequent to the trial. It was claimed that the new evidence was ‘fresh evidence’ in the accepted sense of that term and went to establish that, as at 26 March 1971, Wordie Lowe became a Ward of the State and, therefore, could not have raped the respondent in the appellant’s company as claimed by her.

The Court has power to receive further evidence upon questions of fact by virtue of Order 64.22(3). The principles upon which the Court will grant leave to introduce fresh evidence upon an appeal are not in doubt. Leave should be given only if:

· By the exercise of reasonable diligence such evidence could not have been discovered in time to be used in the original trial.

· It is reasonably clear that if the evidence had been available at the trial, and had been adduced, an opposite result would have been produced.

· The evidence proposed to be adduced is reasonably credible.[2]

[2]Orr v Holmes (1948) 76 CLR 632, 635; Wollongong Corporation v Cowan (1955) 93 CLR 435, 444.

Discovery of evidence by exercise of reasonable diligence

As has been noted, the proceeding was commenced on 26 August 2002. On 20 November 2002 the respondent swore an affidavit in support of an application for a declaration that her proceeding was not statute barred by reason of the Limitation of Actions Act1958. It is common ground before us that the affidavit set out the respondent’s version of events and referred specifically to the presence of Wordie Lowe at each of the incidents of rape alleged by her, and that the affidavit was served upon the solicitor to the appellant soon after the date upon which it was sworn.

The affidavit in support of the appellant’s application for leave to adduce the new evidence was sworn by the appellant’s solicitor, Mr Chris Stakis, on 1 June 2007. He deposed to having had a conference with Wordie Lowe at Barwon Prison on 23 July 2003. He stated that Lowe told him that he had problems with his memory and that he thought that in 1971 he was probably in Warrnambool and living on the Framlingham Aboriginal Mission. Lowe said nothing about being in detention at the time of that interview.

It would appear that thereafter nothing was done by the appellant’s solicitors in relation to addressing evidence concerning the position of Wordie Lowe in March 1971 until the trial of the action. Mr Stakis deposed that it was only after the appellant had given evidence that a subpoena was served upon Victoria Police seeking Lowe’s police record. The transcript of the trial reveals that the appellant completed his evidence at 4.21 pm on 23 January 2007. As mentioned, the application by counsel for the appellant to tender the criminal history sheet of Wordie Lowe was made on the next day, 24 January 2007. It is apparent, therefore, that there could not have been any difficulty encountered by the appellant’s legal advisers in obtaining quickly the production of the police records in question. The affidavit sworn by Mr Stakis stated further that after the trial concluded he essentially obtained the assistance of Wordie Lowe’s daughter in obtaining from the Department of Human Services (DHS) access to the records relating to Wordie Lowe. As a result, on 25 May 2007, Mr Stakis attended upon DHS and took a photocopy of an original Youth Welfare Division record card in the name of Robert John Wordie. That is the first of the additional documents upon which the appellant seeks to rely as new evidence. It contains a notation of a ‘movement’ of Wordie Lowe from Preston Court on a date which is unclear, but possibly is 26 March 1971. When combined with the third document sought to be relied upon as new evidence, being a certified extract as to the records of the Children’s Court of Victoria at Preston, the probability is that the date in question is indeed 26 March 1971. That certified extract also reveals that the Informant was Senior Constable Roger Williams and that, on 26 March 1971, the Magistrate at the Children’s Court at Preston was satisfied that Wordie Lowe was in need of care and protection and ordered that ‘he be admitted to the care of the Social Welfare Branch’. A second notation on the Youth Welfare Division record card bears the date 26 May 1971 and states ‘To H release, 29E Lava Street, Warrnambool’ thereby indicating, prima facie, that Wordie Lowe was granted home release on 26 May 1971.

It is apparent that the new evidence has existed for many years and that at the time of the trial there was no difficulty in obtaining production of it. Moreover, it is clear enough that the appellant and his solicitors have been aware since soon after November 2002 that the respondent has claimed that Wordie Lowe was present and actively involved in both alleged rapes. The solicitors acting for the appellant spoke to Wordie Lowe in Barwon Prison on 23 July 2003. Furthermore, the appellant gave evidence in the course of his examination-in-chief at the trial that he knew that Wordie Lowe was in custody at the time of the trial and said in cross-examination that Lowe had ‘been a relation’. As has been noted also, Judith McKenna, who is the natural half sister of the appellant and who was brought up as a foster sister of Lowe, gave evidence on behalf of the appellant at the trial and said that she remained in regular contact with him. Consequently, it is apparent that between November 2002 and the trial of the proceeding in February 2007, there was ample opportunity for the appellant to investigate the circumstances surrounding the past history of Wordie Lowe. Although the affidavit of Mr Stakis is silent as to when it was that he first made contact with Ms McKenna, it is clear enough that she would have been a likely source of information about Wordie Lowe at all material times prior to trial. In the circumstances we think that it cannot be said that, with the exercise of reasonable diligence, the evidence which is now sought to be relied upon could not have been discovered in time to be used in the original trial.

Whether the new evidence would have produced an opposite result

In any event, it seems to us that the new evidence does not establish that Wordie Lowe was in continuous detention during the relevant period; it shows only that he was the subject of an order made by the Children’s Magistrates Court on 26 March 1971 that he be admitted to the care of the Social Welfare branch and that on 26 May 1971 he was granted home release to 29E Lava Street, Warrnambool. Accordingly, the evidence does not rebut the assertion of the respondent that Wordie Lowe was in Warrnambool at various times between those dates. Importantly, we consider that it cannot be said that it is clear that if the evidence had been available at the trial and had been adduced an opposite result would have been produced.

Conclusion on fresh evidence

In the circumstances, we refuse the appellant leave to file the new evidence and we now turn to consider the appellant’s grounds of appeal and do so broadly in the order in which they were argued.

Ground 1: standard of proof

It is first argued for the appellant that there were material inadequacies in his Honour’s charge in regard to the standard of proof. It is submitted that, although the standard of proof was reasonable satisfaction on the balance of probabilities, given the seriousness of the allegations – namely, sexual assault – his Honour should have explained to the jury that, before they could find for the respondent properly, they had to be satisfied of the truth of the allegations to the standard explained in Briginshaw v Briginshaw.[3] The members of the court in that case emphasised that, where the alleged act, if proved, amounts, for example, to a crime, even though the standard of proof remains the civil standard such that the tribunal of fact must be reasonably satisfied on the balance of probabilities that the alleged conduct occurred, in considering whether it is so satisfied it must be conscious of the gravity of the allegations and of the need to be satisfied of the matter by clear and cogent evidence.
[3](1938) 60 CLR 336.

The appellant’s case on this issue was that his Honour did not explain sufficiently to the jury that in light of the very serious allegations made by the respondent they had to ensure that they scrutinised the evidence carefully and to determine whether they were reasonably satisfied on the balance of probabilities by clear and cogent evidence that the conduct alleged had in fact occurred. His Honour’s failure to provide such direction to the jury, so the appellant claims, meant that the trial miscarried.

The most often quoted reasons for judgment in Briginshaw on the issue now under consideration is that of Dixon J. Relevantly, his Honour said:[4]

At common law two different standards of persuasion developed. It became gradually settled that in criminal cases an accused person should be acquitted unless the tribunal of fact is satisfied beyond reasonable doubt of the issues the burden of proving which lie upon the prosecution. In civil cases such a degree of certainty is not demanded. …
… The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues… But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.

[4]Ibid 360-3.

In a more recent case, Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[5] the High Court said that the critical issue was which of the applicant (the purchaser of the business) or the respondent (its seller) had been guilty of deliberate falsification of its records of takings. The applicant claimed that it had been deceived into purchasing the business by the respondent’s representations as to its takings. The majority in that case[6] confirmed that the ordinary standard of proof required of a claimant in civil litigation is proof on the balance of probabilities even where the matter to be plead involves criminal conduct or fraud. Their Honours pointed out that statements in cases ‘that clear or cogent or strict proof is necessary’ before such serious conduct is to be found, relate to the strength of the evidence that is necessary to establish such a fact on the balance of probabilities. The strength of the evidence necessary to establish that matter may vary, their Honours said, according to the nature of what is sought to be proved. But that does not bear upon what is the standard of proof – that remains the balance of probabilities. The reason strong evidence may be required to satisfy the tribunal of fact on the balance of probabilities that the alleged conduct amounted to a crime or other serious misconduct, is the recognition that persons do not ordinarily engage in such behaviour, and thus the tribunal of fact should not lightly make a finding to that effect on the balance of probabilities. Their Honours said[7] that, in the context of a case where there is competing and mutually inconsistent evidence that is aimed at establishing fraudulent conduct by the other party:

… generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities.

[5](1992) 110 ALR 449.

[6]Ibid 449-50 (Mason CJ, Brennan, Deane and Gaudron JJ).

[7]Ibid 451.

The majority confirmed that in that case the trial judge was correct in determining the issue as to the alleged false representation on the balance of probabilities, and that his omission in not referring to the requirement for clear, cogent or strict proof of the alleged fraudulent conduct was not indicative of error by his Honour. Thus, the majority rejected the conclusion of the majority of the intermediate appellate court that the trial judge did not turn his mind sufficiently to the seriousness of the matter that he was asked to find, namely, deceit by the respondent.

Thus, while the standard of proof in a civil case remains the balance of probabilities, the matters to be considered by the tribunal of fact may be of such seriousness that strong evidence – clear and cogent – may be required before reasonable satisfaction that the allegations have been made out can be attained on the balance of probabilities. In this case it was the judge’s task to charge the jury so that they understood those aspects of the decision making process. In our view, his Honour’s charge in that regard satisfied those requirements. In the relevant part of his charge, his Honour first explained to the jury that the party that made the relevant allegations – here, the respondent, principally in relation to the rape claims – carried the burden of proving them. As to the required standard (of proof) to which the burden must be discharged, his Honour told the jury that in contrast to criminal cases, where the standard is beyond reasonable doubt, in the civil case before them, before they could decide in the respondent’s favour, they had to be satisfied that what she was ‘contending [was] more probable than not’. The learned trial judge then explained to the jury the grave nature of the allegations made by the respondent against the appellant and essentially said that, in light of this, in order to reach reasonable satisfaction as to the allegations, the matters called for clear and exact evidence and that they needed to proceed carefully and to decide the case on a degree of probability that was commensurate with the gravity of the allegations made by the respondent. In terms, his Honour said:

You, the jury, must be satisfied that what the plaintiff is contending is more probable than not in order for you to decide in the plaintiff’s favour.
However, the gravity of the issues that a civil jury have to decide naturally affects the process by which a jury is able to say that the case has been proved to its reasonable satisfaction. To decide which of two motorists have been negligent in a motor vehicle accident is obviously not as grave a matter as deciding whether the defendant has raped the plaintiff. The seriousness and magnitude of the allegation here, assault and rape, and the gravity of the consequences that would flow from a particular finding are matters which must affect the answer to the question ‘has the issue been proved to the reasonable satisfaction of the jury?’

The grave consequences referred to include not only damages or money, but also a person’s reputation could be at stake. Rape is a heinous crime of moral turpitude. If proven to your reasonable satisfaction calls for clear and exact evidence, you need to proceed carefully and decide the case on a degree of probability that is commensurate with the gravity of the allegations that the plaintiff makes.

We consider that it is plain enough that the judge explained sufficiently to the jury the very serious nature of the allegations made by the respondent against the appellant and their obligation, in the circumstances, to scrutinise the evidence carefully to determine if they considered that it was sufficiently clear and cogent to satisfy them on the balance of probabilities that the allegations had been made out. We consider that no miscarriage of justice arose by reason of that aspect of his Honour’s charge as claimed by the appellant.

We note for completeness that the appellant’s trial counsel must have been of the same view. Each party was represented by very experienced senior counsel and effectively each had approved in advance that part of his Honour’s charge that is now being challenged by the appellant. A draft of the now impugned passage of the charge had been provided previously to counsel and effectively was approved by them. Furthermore, no exception was later taken to this aspect of his Honour’s directions. Although those circumstances are not determinative of the question of whether the charge was sufficient,[8] it is not irrelevant to the issue that those best able to determine the matter in the context and atmosphere of the trial considered that the impugned part of the charge was not productive of miscarriage of justice.
[8]See, eg, Kenyon v Barry Bros Specialised Services Pty Ltd [2001] VSCA 3, [18] (Winneke P).

In the circumstances, we consider that this ground should fail.

Ground 2: inadequate charge as to delay

Ground 2 of the amended notice of appeal alleges that his Honour failed to direct the jury in relation to the effect on the memories of witnesses of the respondent’s delay in bringing the proceeding, the need for more than usual caution when assessing the reliability of the evidence of witnesses and the ability of the appellant to refute the allegations against him by establishing ‘with precision’ his whereabouts at the time of the alleged rapes and ‘to locate and secure the testimony of others who allegedly witnessed the … rapes’. Drawing on what the High Court said in Longman v The Queen[9] and Crampton v The Queen,[10] the appellant submits that failure by the judge to give the jury a strong warning as to the prejudicial effects of the delay, along the lines considered to have been appropriate in the above two cases, amounted to error. It is also contended that his Honour should have given the jury what is in effect a corroboration warning, namely, that because the evidence of the respondent could not be ‘adequately tested’ after the passage of so many years, it would be dangerous to find against the appellant on the basis of the respondent’s evidence alone unless the jury were satisfied of its truth and accuracy after they had scrutinised it with great care. These errors by the judge, it is said, resulted in the appellant being denied a fair trial.
[9](1989) 168 CLR 79.
[10](2000) 206 CLR 161.

In the course of dealing in his charge with the jury’s need to consider what the witnesses said in their evidence in chief and in cross-examination, his Honour said that, given that the case ‘stretched back some 35 years’ and because of faulty memories, the jury might consider it very important to analyse not only the honesty of the particular witness but also his or her reliability. And in that context his Honour emphasised the application by the jury of commonsense in evaluating the evidence of witnesses. The trial judge said:

You should also ask yourselves whether or not the evidence of a particular witness is in accord with the probabilities of the situation. In other words, if it be consistent with the probable state of affairs, as you find them to be on the facts as you see them, and this, of course, can mean that you would use your commonsense in that exercise, and you are in fact expected to use your commonsense in your deliberations.
You should not allow yourself to think that because the proceeding was conducted in a formal manner and the trappings and the formality of the court, including the fact that we all look as if we might have had a bad day at the hairdresser, somehow means that commonsense does not come into it. It does. It is very important that you realise that you bring your commonsense to your task.

A little later in his charge his Honour dealt more specifically with delay. Relevantly, his Honour said:

As you know, the allegations that the plaintiff make go back over 35 years. This length of time has serious consequences for the conduct of litigation. Firstly, it can affect the memories of all concerned. Although certain memories may dim at different rates, the overall result of a 35-year gap in recalling events can, of course, lead to unreliability.
Secondly, you must bear in mind that it is through no fault of the defendant that this case has been delayed and this delay puts him, as it would anyone, at a disadvantage in trying to secure witnesses or other evidence about events so long ago. The longer the delay, the more likely it is that the case will be decided on less evidence than was available in 1971 or 1972.

In considering the complaint made under this ground, it is important to note that it is not alleged that the judge misstated the law or failed to explain how it applied to the facts of the case. It is also necessary to bear in mind that, in his submissions in support of this ground, the appellant’s counsel draws heavily on what was relevantly said in the two cases to which reference has been made and went as far as contending, in effect, that the absence of a Longman warning, or one akin to it, in this case was productive of a mistrial. But it is plain enough[11] that the requirements of the criminal law as to the minimum content of directions to a jury in relation to an evidentiary issue cannot be transposed satisfactorily and applied to a direction in a civil case on a like issue. Having said that, however, given the extraordinary delay in the respondent bringing the proceeding against the appellant, it was incumbent on the trial judge to remind the jury of the prejudicial effect that this could have on the defence of her claim and on the reliability of the evidence of witnesses. In our view, his Honour’s charge brought the jury’s attention to the need to bear these matters in mind sufficiently. That his Honour did so, is made plain, we think, in the passages of his charge which have been reproduced. In our view, the judge was not required to tell the jury, as the appellant would have it, that the delay of 35 years ‘possibly’ prevented the appellant from calling witnesses and that, because of this passage of time the respondent’s evidence could ‘not be adequately tested’. In our view, such claims are, merely speculations. What is important, we think, is that his Honour emphasised the fact of the very long delay between the alleged events and the trial and explained to the jury the detrimental effect it had, or could have had, on the litigation, including the appellant’s case, and told them to apply their commonsense in working out how the delay would operate in relation to those matters. We see no deficiency or prejudice to the appellant in this direction, and neither did the appellant’s experienced trial counsel. It is only at the appeal stage that counsel has sought to put a different complexion on this aspect of the charge. For the reasons given, we would reject this argument and this ground.
[11]As was accepted, for example, by Levine J in Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510, [80] and essentially approved on appeal in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, [27], [28],[30].

Grounds 3(a)(b); 5(a)(i): failure to give proper direction on why respondent would lie

In the course of the trial, in circumstances which will be summarised later, the respondent’s counsel essentially raised with the appellant the question of whether there was a reason why the respondent would lie about the alleged rapes. And under cover of grounds 3(a)(b) and ground 5(a)(i) the appellant argued that his Honour failed to give the jury proper directions on this issue. The appellant’s counsel pointed out to us that, in the course of cross-examining the appellant, the respondent’s counsel asked whether the respondent would have made the allegations by reason of animosity towards him or Aboriginal politics. The appellant responded by saying: ‘I don’t know what the basis of it [is], no’. It was said that by this question counsel for the respondent was seeking to elicit evidence to support the contention that the respondent had no reason to lie or make up the allegations. And in his final address counsel for the respondent told the jury: ‘No sane person would put themselves through what the plaintiff has done, in effect bearing her soul to the police, to the press, to yourselves, unless what she was saying was the truth’. Essentially counsel then said that it would be incomprehensible if the respondent had done this and the allegations were false. In his final address the appellant’s counsel told the jury that the question ‘why would the respondent lie?’ was of no help and should not have been put to them. In his charge, the judge did not give any direction to the jury on this issue and the appellant’s counsel took an exception to this as a consequence of which his Honour gave the following re-direction:

… one final direction concerning the evidence – this relates to Mr Tobin’s question to Mr Clark why would the plaintiff make up these allegations – and, as you know, Mr Clark was unable to say. This is something which you would have already, no doubt, asked yourselves. I simply remind you that the burden of proof remains on the plaintiff throughout the trial and the defendant does not have to prove anything.

Again, by reference to the criminal law, and in particular to Palmer v The Queen,[12] the appellant submits that questioning a defendant as to the complainant’s motive to lie about the matters alleged, the underlying assumption being that because the defendant denies the allegations he must be saying that the complainant has lied about them, produces the mischief that the jury might think that the onus is on the defendant – here, the appellant – to disprove the allegations (or to explain why the respondent had lied). The risk of the jury engaging in such impermissible reasoning was heightened here, said the appellant, by the long delay in the bringing of the complaint and the uncorroborated nature of the respondent’s evidence. In any event, the appellant argued, the appellant’s thoughts as to whether the respondent had a motive to lie was irrelevant to her credibility or to the issue of whether the alleged acts took place. The appellant contends that the impugned question could not have been cured by any direction, the implication in the question being so grave. In any event, it is submitted, that the re-direction here was inadequate, at least because the jury were not told that the impugned questions were irrelevant to their deliberations.
[12](1998) 193 CLR 1.

The context in which this matter was raised at the trial was this. In his evidence in chief the appellant was asked whether one Joanne McGuinness was known to him. He said that she was. The following questions were then asked:

Q. Is she a relative of yours?

A. No.

Q. Is she a friend of yours?

A. No.

Q. Is there an ongoing dispute between branches of a large family in the Framlingham – Warrnambool area?

A. You only have to read the last 20 years of the Warrnambool Standard to see that the Clarks with an ‘e’ and without an ‘e’ are poisoned cousins, if you like.

Q. You’re a Clark without an ‘e’?

A. Yes.

Q. Did she accuse you of rape?

A. That’s right.

The appellant then gave evidence that he had been discharged on a charge of rape of Joanne McGuinness at committal and that he had never assaulted her sexually. A fair reading of that evidence is that the appellant was contending that false allegations had been made against him by reason of ‘poisonous’ relationships in Aboriginal families in Warrnambool.

Later still in his evidence in chief the appellant pointed out that the family group to which the appellant’s brother, Harvey Stingel, belonged was not ‘particularly keen on Aboriginal people’. In cross-examination the appellant confirmed that he had had no contact with the respondent between 1971 and the early 2000s. There then followed these questions and answers:

Would it be correct to say that over the last five to six years you’ve had considerable time to think about these allegations made by Carol Stingel against you and you can see no reason why she should have any particular animosity towards you. Would that be correct? --- I don’t know what’s the basis of it, no.
Right, but certainly you don’t say in relation to her that she’s somebody that expressed a – or you were aware of her having any animosity towards Aboriginal people, in Aboriginal politics or anything like that. Is that correct? --- I’m not sure what the motivation is.

It is plain enough, therefore, that the appellant was cross-examined on the respondent’s attitude towards him in the context of his claim that the respondent’s family, or some of them, had, or may have had, an animosity towards Aboriginal people (which would have included him). Experienced counsel for the appellant took no objection to the questions being asked. We consider that the questions were not directed (and it could not have been reasonably put otherwise) at determining if the appellant could attribute a motive to the respondent’s fabrication of the allegations on the unstated basis that, by denying that the offending took place, the appellant was saying that the respondent was lying. Clearly the questions were directed to the implication raised by the appellant in his evidence in chief that allegations had been made against him in the context of family and racial disharmony. As is clear, unlike Palmer, the appellant was not asked in cross-examination whether he could suggest a reason why the respondent should lie. The vice with which Palmer was concerned – assuming the principle stated there was applicable to the present situation – namely that the jury may have reasoned that it was for the appellant to disprove the respondent’s claim, did not arise out of the cross-examination in this case. This is particularly so, we think, given that his Honour’s redirection made it plain that the burden of proof ‘throughout the trial’ remained on the respondent.

For these reasons, we consider that these grounds have no substance.

Grounds 3(c), 5(a)(ii)(b): appellant’s failure to claim in defamation

The appellant was cross-examined by the respondent’s counsel to establish that he did not bring defamation proceedings in relation to an article by a journalist, Andrew Rule, published in The Age newspaper on 21 July 2001, in which it was claimed, amongst other matters, that over the preceding 20 years or so the appellant had raped several other women in addition to the respondent. The appellant had given evidence that he first learned of the respondent’s allegations when he read the article. He was cross-examined about these allegations (which he denied) and asked why he had not counterclaimed, or brought separate proceedings, if they were untrue. He responded that he had taken legal advice and did not have the resources to pursue a claim against The Age or a counterclaim in these proceedings. Both counsel dealt with the matter in their final submissions. In his charge his Honour directed the jury that they must not speculate as to why the police had not charged the appellant with the other alleged offences observing that they could have taken that course for any number of reasons. His Honour also directed the jury that what the appellant may have allegedly done in relation to one of the women mentioned in the article was irrelevant. But the judge did not give any such direction in respect of the other published allegations.

Under grounds 3(c), 5(a)(ii)(b) the appellant claims that there was a real risk that this treatment by the respondent’s trial counsel of the allegations in the article against the appellant would have left the jury with the (false) impression that if the appellant could not prove, or had not taken steps to prove, that he had been defamed, then the allegations in the article must be true. It was said the position was exacerbated by the trial judge telling the jury expressly that they should not speculate about one of the matters arising from the article but not making the same comment about other matters arising from it. It is submitted that, by implication, the omission left the jury with a direction that the other matters were relevant to their deliberations. It is said for the appellant that whether or not he brought defamation proceedings in relation to the allegations in the article could not be relevant to the question of whether the alleged rapes occurred, particularly where he explained why he had not brought such proceedings. It is said that in the circumstances the respondent’s claims in relation to the article were baseless and unduly prejudicial. It is argued further that, notwithstanding that he was not asked to do so by the appellant, his Honour was required to have directed the jury to disregard the submissions of the respondent’s counsel in that regard. Thus, it is contended, the appellant was denied a fair trial.

In our view, however, given that the appellant contended in his evidence in chief and during cross-examination that he had been the subject of trial by media and, in that context, asserting that he was ‘probably the [most] vilified person in the country’ (and his counsel in his closing address claimed that the appellant had been ‘tried and convicted by The Age’), it was not impermissible to question him as to why he had not brought any proceedings for defamation in respect of the allegations which he said were untrue and which vilified him. These questions went to his credit and it was plain that the cross-examiner was bound by the answers, and the contrary was not sought to be pursued in addresses. Moreover, as has been mentioned, his Honour’s charge did not produce the imbalance for which the appellant contended. We also note for completeness that no exception or redirection was sought by the appellant’s experienced counsel.

Hence, as we have said, we consider that the above grounds should fail.

Grounds 3(f) and 4(b): failure to call witnesses

It is argued further under grounds 3(f) and 4(b) that his Honour failed to give the jury the necessary directions concerning the respondent’s failure to call the following key witnesses who, it was said, it was reasonable to expect the respondent to have called.

-Deidre Price who, it was said by the respondent, was present at the Cannon Hill, the Botanical Gardens and the sand dunes incidents.
-Kerry Dart who, according to the respondent, was present at the Psychiatric Patient and Botanical Gardens incidents.
-Glen Barry, a boyfriend of the respondent who was said to have been badly injured after he was assaulted by the appellant when he confronted him about the alleged rapes.

At the trial, each counsel criticised the failure by the other side to call what he said were relevant witnesses and argued that this justified the drawing of adverse inferences against that party’s case. Thus, the appellant’s counsel criticised the respondent’s failure to call the above three witnesses who, it was said, could have corroborated the respondent’s claims. Similarly, the respondent’s trial counsel criticised the appellant’s alleged failure to call witnesses who, it was said, it was reasonable to expect him to have called, namely, the appellant’s wife, Trudy Clark, and his friend Wordie Lowe.

As will be explained more fully later, in his charge, his Honour dealt with how the jury could probably use the failure by a party to call evidence which it could be reasonably expected to have called and, in that context, referred to the respondent’s failure to call Ms Matthews, a psychologist, and the appellant’s failure to call Trudy Clark and Wordie Lowe. The appellant submits that his Honour’s failure to deal in his charge specifically with the three absent witnesses referred to earlier made his charge unbalanced to the detriment of the appellant in the sense that it may have emphasised unduly to the jury the appellant’s failure to call ‘corroborative’ witnesses such that there was a risk that they would have been left with the mistaken impression that the onus was on the appellant to prove his defence that he was not present at any of the alleged incidents. By way of contrast, it is said, the witnesses, Price, Dart and Barry were material to the respondent’s case such that inferences could be drawn from the respondent’s failure to call them yet his Honour failed to give adequate directions in that regard. It was said that his Honour was required, in the circumstances, to have given the jury a Jones v Dunkel[13] direction in respect of the above three witnesses and his failure to do so resulted in a misdirection such that the trial miscarried. It is said, in any event, that his Honour’s mere statement of the law on this issue to the jury, although correct as far as it went, was insufficient because it was not related to the facts of the case. Moreover, his Honour’s wrongful failure to give an adequate direction was compounded by his comment to the jury that they may feel more comfortable simply relying on the evidence which they had heard rather than ‘worrying what witnesses had not been called and the evidence they might have given’. Such an observation, it is said, could have led to the jury not considering that any adverse inferences could be drawn against the respondent by reason of her failure to call the above three witnesses. Reference was made in that regard to the observations of Nettle JA in Ronchi v Portland Smelter Services Ltd[14] to the effect that, in that case, the trial judge erred by directing the jury in terms that implied that the witnesses who could have given evidence on an issue would have added nothing to the totality of the evidence. This deprived the appellant, said Nettle JA, of the benefit of a Jones v Dunkel direction to which the jury, properly directed, may have found the appellant entitled.
[13](1959) 101 CLR 298.
[14][2005] VSCA 83, [81]-[83].

As was explained in Jones v Dunkel, in certain circumstances, unexplained failure by a party to call a witness who would otherwise be expected to give evidence may give rise to adverse inferences being drawn against that party. The operation of that principle was restated by Newton and Norris JJ in O’Donnell v Reichard[15] in the following ‘much-cited’[16] passage:

… where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that party’s case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely: (a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken.

As Tadgell JA explained in Kidman[17] this passage makes it plain that there are two aspects of the logical process that may be adopted following a failure by a party without explanation to call available evidence which, if favourable, that party might fairly be expected to call. The first is reliance on an inference, readily enough drawn, that uncalled evidence would not have helped the party who did not call it. The second aspect refers to distinct purposes to which failure to call evidence may be put in evaluating evidence that has actually been given (whether for one side or the other) including the drawing of other inferences.

[15][1975] VR 916, 929.

[16]Kidman v Corstorphan [1999] VSCA 28, [23] (Tadgell JA).

[17]Ibid [24], [25].

In his charge, his Honour directed the jury on the consequences of the failure to call witnesses whom a party may have been expected to call, being a matter, his Honour said, that was dealt with by both counsel in their addresses to the jury in the sense that each commented ‘on the failure of the opposite party to call particular witnesses. Each have (sic) sought to obtain an advantage when it comes to persuading you as to their particular case.’ By way of example, his Honour referred to the comments of the appellant’s counsel on the failure of the respondent to call Ms Matthews. On the other hand, said his Honour, the respondent’s counsel commented on the appellant’s failure to call his wife, Trudy Clark, and Wordie Lowe. The learned judge then gave the following direction.

… where there is someone that you would expect a party to call as a witness and that party does not do so and there is no reasonable explanation for the absence of the witness, then it is open to you to infer – and this is another example of drawing inferences – if you choose to do so, that the evidence of that witness would not have helped the party who failed to call the particular person named.

His Honour then referred to the lack of explanation for the failure to call certain witnesses and to counsels’ criticism of such explanations as had been proffered, and told the jury that it was a matter for them whether such explanations were to be accepted. The learned trial judge then reminded the jury of the directions he had given them about the drawing of inferences, in the course of which he explained that an inference was only a logical conclusion of fact drawn from an established fact. In that context, his Honour had given the jury sensible illustrations of how inferences may be drawn. In his charge on the failure to call witnesses, his Honour reminded them that before they could draw adverse inferences from the failure of a party to call witness they –

… [had to] decide whether or not the person was one which you would expect a particular party to call and, secondly, there is no reasonable, and I stress reasonable, explanation that has been given to you as to why that witness has not been called. You must appreciate that any inferences drawn from these facts cannot include any guesses on your part as to what the evidence of the particular missing witness might have been. You cannot speculate on what the witness would have said had they in fact made it here into the witness box.
If the missing witness had been in the position of contradicting evidence of a particular witness from the other side and that particular party failed to call this person, then it puts you in the position of more readily accepting on any particular topic the evidence of a witness who has been called by the other party. So in other words, if you accept what [the appellant’s counsel] says about Matthews, the psychologist, you are only looking at what – the only relevance of her evidence would have been in relation to the psychiatrists, she being a psychologist, that had been called in the case. Just because Matthews is not called has got nothing to do with other witnesses, just the one that you would expect her to have given some relevant evidence about.
Now, as I said, counsel have addressed many arguments to you in relation to the drawing or non-drawing of these inferences. It is entirely a matter for you as to whether or not you accept their arguments or submissions about them. You should bear in mind at all times, however, that you do not have to make any inferences. It is entirely a matter for you.
At the end of the day, and this is a comment of mine and not a direction of law, you may feel more comfortable simply relying on the evidence which you have heard here in court, rather than worrying yourselves about witnesses who have not been here.

As we have mentioned, it is conceded by the appellant, rightly, we think, that there was no error of law in the Jones v Dunkel direction that his Honour gave the jury. It is apparent enough that, although the direction did not, in terms, refer specifically to each uncalled witness, it related to them plainly in the context of this case and, given the breadth of the direction in this regard, we think it would have been plain enough to the jury that the judge’s instructions applied to the respondent’s failure to call the three witnesses referred to earlier. Merely because his Honour dealt with only some of the witnesses who were not called did not, in the circumstances, make the charge unbalanced as claimed by the appellant. In other words, taking his Honour’s charge as a whole, it would have been apparent to the jury that they could consider that the respondent’s failure to call the three witnesses could give rise to the inference that their evidence would not have assisted the respondent and that, in those circumstances, it was open to them to use that fact to draw inferences against the respondent when evaluating her evidence. We mention for completeness that we consider that it is apparent from the above terms of his Honour’s charge and what we have said about them that his Honour’s charge does not contain the vice of which Nettle JA spoke in Ronchi. We mention finally that we also consider that his Honour’s comment that the jury could rely on the evidence that they had heard in court rather than being concerned about whether any, and if so what, inferences could be drawn from the failure to call certain witnesses did not detract from the efficacy of the direction that was given in that regard.

In the circumstances, we would dismiss the above grounds.

Grounds 3(d)(e); 4(a); 5(c): alibi evidence

It will be recalled that the appellant’s principal defence was that he could not have committed the alleged rapes because at the time of the occurrence he was in prison in Malmsbury from about July 1970 until he was released on parole on 8 February 1971. In his evidence he said that he did not receive any weekend leave during that period. No direct evidence to the contrary was adduced by the respondent.

It is submitted to us by the appellant’s counsel that, notwithstanding this evidentiary position, the respondent’s counsel contended to the jury in addresses that the appellant did not establish that he had had any restrictions in his movements in 1971 and asserted that even before the appellant was released from incarceration, he had the motivation and opportunity and ‘on the evidence it was a fact, that he was in the Warrnambool district’. It is contended that the submission that the appellant could have been at Warrnambool at the time was mere speculation by the respondent’s counsel. More specifically, it is said that it was encumbent upon the judge to have directed the jury that the appellant did not carry the onus of establishing his absence from Warrnambool at the relevant time and that even if they regarded the appellant’s claim in that regard as false, they should not conclude from this that his claim was made out of a desire to conceal his involvement in the offending. In support of the submission that such a direction should have been given the appellant relies on what was said by Winneke P and Charles JA in R v J (No 2)[18] about the need for the trial judge to give appropriate directions to the jury in respect of the defence of alibi so as to avoid the risk of the jury mistakenly inferring that it was for the offender to prove that he was not relevantly present and, if they rejected that alibi defence, they would immediately conclude that the offender raised the defence to conceal his guilt.
[18][1998] 3 VR 602, 629.

It should be noted, however, that a little later in their reasons their Honours said that ‘there is … no general rule that, where an accused person raises an alibi, the jury should be specifically directed as to where the burden of proof lies. If, however, there is any danger of the jury believing that the onus lies on the defence to establish his alibi, then the judge should give a specific direction to the jury as to how they should approach it’.[19] Moreover, as we have said, the principles that operate in criminal cases in relation to directions that must be given to the jury cannot be transposed easily to the civil context. Be that as it may, we consider that there is nothing in the circumstances of the appellant’s complaint under these grounds that suggests that there was a real risk that the jury would have considered that the onus of establishing the alibi defence was on the appellant, or that if they rejected it that they would conclude impermissibly that he committed the offences in question. Having regard to his Honour’s charge on the issue of onus, to which we have referred, we think that it would have been plain to the jury that it was for the respondent to establish, on the balance of probabilities, that it was the appellant who raped her as she claimed, and that if they were not satisfied that he was present at those incidents, they could not find for her properly. In our view, the impugned submissions of the respondent’s counsel were unlikely to have given rise to that risk. Whether such a risk was present depends, essentially, on the conduct of the trial and its atmosphere. Those best placed to judge that – his Honour and counsel – could not have thought that such a risk existed given that neither this experienced trial judge, nor the appellant’s trial counsel, regarded it as necessary to give the jury the direction for which the appellant now contends.
[19]Ibid 630.

In the circumstances, we would dismiss the above grounds.

Ground 7: verdict against weight of evidence

Finally it is argued for the appellant under ground 7 that the verdict was unreasonable and against the weight of the evidence or not reasonably open on the whole of the evidence. Essentially it is claimed that there was an inherent improbability as to the respondent’s version of events. In support of this claim the appellant pointed to a large number of matters that were said to demonstrate that the respondent’s case was implausible. It is only necessary to refer to the essential matters so put forward by the appellant in order to glean the substance of this submission and its tenor:

(a)The appellant’s imprisonment and that of Lionel Proctor during the relevant period.
(b)The failure to call relevant witnesses.
(c)The inherent unlikelihood of events having occurred as the respondent claimed in her evidence.
(d)Numerous claimed inconsistencies between the respondent’s version of relevant events and that of other witnesses and existing circumstances as well as her statements to police.
(e)The claimed impossibility of Wordie Lowe being a party to the second alleged rape.

The test of whether a verdict is against the evidence and should be reversed is not in much doubt. It was stated authoritatively, for example, by Mason CJ, Deane, Toohey and McHugh JJ in Calin v Greater Union Organisation Pty Ltd:[20]

[Did the jury reach a conclusion] which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such that reasonable jurors could not reach[?]

And in Hocking v Bell[21] Starke J noted that, in the context of considering an attack on the jury’s finding, there is a relevant distinction ‘between a case in which there is no evidence to support a verdict and a case in which the verdict is against the weight of the evidence. In the latter case the verdict is not disturbed unless the jury, viewing the whole evidence reasonably, could not properly find it’. Here, it is not alleged that there was no evidence on which the jury could have arrived at the impugned conclusion. Rather, it is said that the verdict is against the weight of the evidence. Consequently, the appellant carries a heavy burden of persuading this Court that the verdict was such that no reasonable jury could have reached it when considering the evidence in totality. And it must be borne in mind that it is not for this Court to say whether the jury’s verdict was wrong because the Court itself would have arrived at a different verdict.[22] It is also relevant to note that at no stage at trial did the appellant’s counsel submit that there was no evidence for the case to go to the jury. Nor did he seek reservation of leave prior to the jury’s verdict to move for judgment notwithstanding the verdict.

[20](1991) 173 CLR 33, 41.

[21](1945) 71 CLR 430, 487.

[22]See Middleton v Melbourne Tramway & Omnibus Co Ltd (1913) 16 CLR 572, 579 (Barton ACJ).

In our view, it cannot be said properly that, in light of the totality of the evidence, reasonable jurors could not have reached the impugned verdict. The case was, primarily, one of oath against oath. Plainly the respondent and the appellant were the key witnesses to the dispute and both gave evidence so that their credibility, and the determination whether the incidents alleged probably occurred, were matters for the jury. Once they accepted the respondent as the more credible witness on the relevant issues, it was only a relatively short step to the conclusion that she was assaulted as she claimed. It is true that there was not an inconsiderable amount of material before the court that cast doubt on the respondent’s claim, but we consider that the evidence as a whole was capable of sustaining the jury’s findings. For this purpose we put to one side the apparent inconsistencies, to which the appellant refers, between the respondent’s evidence and her statements to police and some of the surrounding circumstances, because it was open to the jury to accept her evidence and consider that any apparent inconsistencies were explicable by the many years that had passed between the alleged rapes and the trial. Moreover, for the reasons given, the fact that the respondent did not call the three witnesses referred to earlier, did not mean that the jury’s verdict was tainted as the appellant claims. A like conclusion is appropriate in relation to the claimed impossibility of Wordie Lowe being party to the second alleged rape.

Perhaps the appellant’s strongest point in relation to the present ground is his claim that he was detained in Malmsbury until February 1971 and then lived in Melbourne so that he was absent from Warrnambool at the time of the offending and could therefore not have raped the respondent as she claimed. There was documentary evidence before the jury that the appellant was the subject of a Youth Training Centre order from 18 June 1970 and that he was granted parole on 8 February 1971. There was no evidence before the jury as to what that meant in terms of continuous detention. Obviously if the appellant had been in continuous detention until 8 February 1971, the respondent’s evidence as to when the Cannon Hill incident occurred could not have been correct. However, it seems to us that the jury did not have to accept the appellant’s evidence that he stayed away from Warrnambool after his release from prison on parole, so that it was open to them to conclude that he was in the Warrnambool area, at least during some parts of February, March and April 1971 and thus had the opportunity of assaulting the respondent as she claimed. In the circumstances, as we have noted, we reject the appellant’s submission that the verdict is one that reasonable jurors could not have reached.

Conclusion

For the above reasons, we would dismiss the appeal.

Citations

Clark v Stingel [2007] VSCA 292

Most Recent Citation

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22

Anderson v City of Stonnington [2025] VSCA 68

Metcalf v Wellington (No 2) [2024] VSCA 202

Abdelkawy v ANL Container Line Pty Ltd [2021] VSCA 342

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Statutory Material Cited

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Briginshaw v Briginshaw [1938] HCA 34

Kenyon v Barry Bros Specialised Services Pty Ltd [2001] VSCA 3

Guest v The Nominal Defendant [2006] NSWCA 77

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[2007] VSCA 292

11 December 2007