Copley v The Queen

[2000] FCA 994

FEDERAL COURT OF AUSTRALIA

Copley v The Queen [2000] FCA 994

CRIMINAL LAW – appeal against convictions for unlawful intercourse with a lineal descendant – whether jury’s verdicts unsafe or unsatisfactory – they were not.
CRIMINAL LAW – whether the verdicts of guilty on five counts were inconsistent with no verdict on one count – meaning of inconsistency.
CRIMINAL LAW – good character raised by the accused – entitlement of the Crown to call evidence in rebuttal – practice of checking with the Crown before character is raised.

Crimes Act 1900 (ACT), ss 92L(2), 92L(3)
Evidence Act 1995 (Cth) s 164(1)

M v The Queen (1994) 181 CLR 487
Jones v The Queen (1997) 191 CLR 439
Gipp v The Queen (1998) 194 CLR 106
Longman v The Queen (1989) 168 CLR 79
DPP v Kilbourne (1973) 1 All ER 440
R v Baskerville (1916) 2 KB 658
MacKenzie v The Queen (1996) 190 CLR 348
R v Stone (Devlin J, unreported, 13 December 1954)
The Queen v Hamilton (1993) 68 A Crim R 300
The Queen v Carbone (1976) 14 SASR 280
Verma (1987) 30 A Crim R 441

WILLIAM PAUL COPLEY v THE QUEEN

A 75 of 1999

GALLOP, SPENDER and MATHEWS JJ
CANBERRA
27 JULY 2000

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 75 OF  1999

BETWEEN:	WILLIAM PAUL COPLEY Appellant
AND:	THE QUEEN Respondent
JUDGES:		GALLOP, SPENDER and MATHEWS JJ
DATE OF ORDER:		27 JULY 2000
WHERE MADE:		CANBERRA

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

 A 75 OF 1999

BETWEEN:	WILLIAM PAUL COPLEY Appellant
AND:	THE QUEEN Respondent

JUDGES:	GALLOP, SPENDER and MATHEWS JJ
DATE:	27 JULY 2000
PLACE:	CANBERRA

REASONS FOR JUDGMENT

GALLOP J

1. This is an appeal against convictions in the Supreme Court of the Australian Capital Territory for four offences of unlawful intercourse with a lineal descendant under the age of 16 years contrary to s 92L(2) of the Crimes Act 1900 (ACT) and one offence of unlawful sexual intercourse with a lineal descendant contrary to s 92L(3) of the Crimes Act 1900. The indictment included a further count also under s 92L(2) which was the fourth count in the indictment. The jury returned verdicts of guilty on the first, second, third, fifth and sixth counts. They were unable to reach a verdict on the fourth count and accordingly were discharged. Convictions on the jury’s verdicts were recorded by Higgins J on 3 September 1999.

2. By a notice of appeal amended by leave, the appellant raised the following grounds:

   “1.The verdicts returned were against the weight of evidence and therefore unsupportable.

   2.The non return of a verdict on count 4 is inconsistent with the guilty verdicts on the other counts.

   3.His Honour erred in allowing evidence to be led by the Crown from Gregory Chalker as to the character of the accused.

   4.His Honour erred in not pronouncing a mistrial when the complainant was re-examined as to the outcome of the Criminal Injuries Compensation claim made by her.  [This ground was not argued.]

   5.His Honour’s directions to the jury were inadequate in that:

   (a)there was insufficient direction in relation to the use that the jury could make of the evidence that the Appellant was a person of bad character;

   (b)they failed to sufficiently direct as to the significance of the delay in reporting the allegations against the appellant to the Police;

   (c)they failed to warn the jury of the dangers of convicting the Appellant on uncorroborated evidence.”

1. The facts giving rise to the commission of the offences of which the appellant was found guilty arose out of a sexual relationship between the appellant and his natural daughter which began when she was around the age of 13 and continued until she left home in August 1993.  The Crown allegations in relation to each count in the indictment, which were obviously accepted by the jury except in relation to the fourth count, were as follows:

   “The First Count
   Shortly after [the complainant’s] fourteenth birthday, the Appellant had penile/vaginal intercourse with [the complainant] in her parents’ bedroom.  This is the first incident of full sexual intercourse that she recalls with the Appellant (AB 114-115).
   The Second Count
   A matter of weeks later, the Appellant gave [the complainant] fifty dollars and sent her to the Lyneham Chemist to buy condoms so that he could see what it was like to “come” inside her.  Upon her return the Appellant had penile/vaginal intercourse with her in her parents’ bedroom using a condom (AB 115-118).
   The Third Count
   When [the complainant] was fourteen the Appellant told her to have the day off school.  They both watched a pornographic video and then the Appellant had penile/vaginal intercourse with [the complainant] in the lounge room and then in her parents’ bedroom (AB 119-122).
   The Fourth Count
   In May 1991, Mrs Copley, the Appellant’s wife, had a back operation. Mrs Copley’s mother was staying in the family home.  One night during this period, [the complainant] was woken up by the Appellant and told to come into the Appellant’s bed which she did and where the Appellant had penile/vaginal intercourse with [the complainant] (AB 128-130).
   The Fifth Count
   Between 14 March 1990 and July 1991, the Appellant woke [the complainant] to watch racing on television.  He had penile/vaginal intercourse with her in the lounge room (AB 130-133).
   The Sixth Count
   Prior to [the complainant] seventeenth birthday, the Appellant had penile/vaginal intercourse with [the complainant] in the garden shed adjacent to the family home on a stool (AB 133-136).”

2. The victim of the offences gave evidence on behalf of the Crown along the lines of the allegations set out above.  She was cross-examined at length.  There was other Crown evidence which it is not necessary to refer to. 

3. The appellant gave evidence and was cross-examined.  He denied the allegations completely and disputed some of the Crown evidence.  There was other evidence called on behalf of the accused.  Likewise, it is not necessary to refer to that evidence at this stage.

4. I turn to the grounds of appeal.

   Ground 1 –
   The verdicts returned were against the weight of evidence and therefore unsupportable.

5. This ground essentially is that the convictions were unsafe and unsatisfactory.  The relevant principles to be applied are not in doubt having been laid down by the High Court in M v The Queen (1994) 181 CLR 487 where the test was set out by the majority as follows (at 493 and following):

   “Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen or heard the witnesses.  On the contrary, the court must pay full regard to those considerations ...

   In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inaccuracies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based on that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate questions must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

6. The High Court confirmed those principles in Jones v The Queen (1997) 191 CLR 439 at 450-451 and Gipp v The Queen (1998) 194 CLR 106 at 114, 123, 150, 162-4. It is now “authoritatively formulated”, “accepted” and “well settled” in these terms. The appellate court must undertake an examination of the evidence to determine whether it lacks credibility for reasons which are not explained by the manner in which it was given, at the same time paying full regard to the fact that the jury is primarily entrusted with determining guilt or innocence and has had the advantage of having seen and heard the witnesses.

7. In support of this ground of appeal, the appellant raised many arguments which the Crown has helpfully made submissions about in its written outline of argument. 

   Delay before charge

8. The appellant’s first criticism under this ground is that the allegations of engaging in sexual intercourse with the victim spanned the period 1990-1992, yet the appellant was not charged until 1998, some six years after the last of the alleged incidents.  The relevance of delay in the prosecution of a person accused of sexual offences was adverted to in Longman v The Queen (1989) 168 CLR 79 where Brennan, Dawson and Toohey JJ said at 91,

   “There is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them.  That factor was the applicant’s loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution.  Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant’s story or confirming the applicant’s denial.  After more than twenty years that opportunity was gone and the applicant’s recollection of them could not be adequately tested.  The fairness of the trial had necessarily been impaired by the long delay and it was imperative that a warning be given to the jury.  The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.  To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.”

9. In Jones v The Queen (supra) Brennan J said (at 446) that those observations set out in Longman (supra) were applicable to that case.  Admittedly the delay in Jones was only four years.

10. It was submitted on behalf of the Crown that the victim gave a clear and cogent explanation for not wanting to disclose the offences at an earlier date, namely, she wanted to please and protect her mother.  In fact she did not, herself, volunteer the allegations in any event. She responded to a probe by her mother.  She did not cause the two independent approaches to Bishop Browning and, indeed, her mother did not believe her at first.  The fact of delay of about six years, in all the circumstances of the case, does not, in my opinion, warrant findings that the verdicts were unsafe or unsatisfactory.

    The allegations were essentially uncorroborated

11. The law now is that evidence of a complainant need not be corroborated (see s 164(1) of the Evidence Act 1995 (Cth)). It was submitted on behalf of the appellant that the allegations were essentially uncorroborated in that such matters as might have been argued as being corroborative were marginal and equivocal. In particular it was submitted that there was no medical corroboration even though the victim had been treated by doctors for thrush during the period of the alleged incidents.

12. Further, it was submitted that in relation to certain incidents where corroboration might have been expected, there was none.  For instance, it was alleged that prior to one of the acts of sexual intercourse, the appellant sent the victim, then aged fourteen, to purchase condoms at the local pharmacy.  It was submitted that one might have expected that the person selling condoms to such a young child might have recalled it, but no witness was called in relation to this.  Otherwise, one of the incidents was said to involve the appellant and the complainant having intercourse against a door and the appellant’s son Benjamin attempting to open the door.  The appellant’s son gave evidence but did not corroborate this incident.  The victim’s evidence was that when the appellant wanted to have sexual intercourse with her, Benjamin would be sent up the street or to someone else’s house.  This was not corroborated by Benjamin.

13. It was submitted on behalf of the Crown that there were a number of matters in evidence which were corroborative of the victim’s evidence, that is, they confirmed in some material particular not only that the crime had been committed but that it was the accused who committed it (DPP v Kilbourne (1973) 1 All ER 440 at 447 and R v Baskerville (1916) 2 KB 658 at 667). For example, the Crown referred to the evidence of the victim’s relatively frequent absences from school which supported her evidence that when the appellant wanted to have sex with her, he would require her to pretend to be sick and remain home from school. It was not suggested to the victim in cross-examination that she was a truant and her version of being required to stay home from school was not challenged. In his evidence, the brother Ben, referred to some truancy but that was when the victim was in Year 11 which was after the incidents which were charged in the indictment.

14. Next the Crown submitted that the ownership and playing of a pornographic video was confirmed by two other witnesses, at least one of whom was quite independent.  A pornographic video, admittedly not necessarily the same video, was an integral part of the third count.  Thirdly, there were lies told by the appellant in his record of interview.  For example, he denied knowing anything about the complainant’s thrush yet he conceded in cross-examination that he did know about it.

15. There were a number of other matters which, while not strictly corroboration, did tend to support the victim’s credibility, for example, her reference to the vibrator was quite accurate and her evidence about having thrush contemporaneously was not challenged, indeed was conceded in cross-examination.  A book of sexual practice which she had referred to was in fact located where she said it would be. 

16. I am not satisfied that the allegations were not corroborated.  The evidence as it was could not, in my view, render the verdicts unsafe or unsatisfactory.

    There was evidence of collusion between the victim and her mother

17. In amplification of this ground the appellant referred to the evidence of the victim and her mother that the appellant’s penis had unusual features.  As a result of these statements, the Police had the appellant’s penis examined by a Police doctor.  The appellant tendered in evidence a report from a doctor which contradicted the assertions of the victim and her mother.  As they both gave common evidence contrary to the doctor’s opinion, the submission was that most probably the mother, having seen the appellant’s penis, had, for some reason, formed the opinion that it was unusual and had told the victim of it.  There was a good deal of evidence on the subject at the trial apart from the evidence of the victim and her mother.  There was evidence from Dr Czoban, the Police Surgeon, to the effect that he had made a physical examination of the appellant and was of the opinion that it appeared to him to be an ordinary circumcised penis.  Dr Meiklejohn, a general practitioner, also examined the appellant and said that his penis had the appearance post-circumcision “one would normally expect from the procedure”.  Whether there was collaboration or collusion between the victim and her mother was essentially a jury question and relevant to the reliability of their evidence.  It is not appropriate to re-examine further their evidence on the subject.  No ground has been shown to find that the verdicts of the jury were unsafe or unsatisfactory on the basis of their evidence on this particular subject.

    The circumstances of the victim leaving home and her subsequent contact with her father were inconsistent with the allegations

18. It was submitted on behalf of the appellant that the victim left home in 1993 following a fight between the victim and her mother in which she was punched by her mother.  Reference was made to her evidence that she left because of the actions of the appellant and that she “was close to either killing myself or killing him”.  The submission was that none of her actions with respect to the appellant up until she made her allegations, appeared to bear out this alleged hostility.  She sent a number of letters and cards to the appellant expressed in affectionate terms, did not attempt to avoid his company and had him give her driving lessons.  When questioned about this in cross-examination, her only explanation was that she did these things because she was frightened of the appellant.  The submission was that her evidence was unconvincing in the extreme.

19. This also, it seems to me, is no more than a jury question, all of which was relevant to her credibility as a witness.  The respondent referred to other evidence about her leaving home, including her evidence that she left because of “the abuse, like the sexual abuse, physical abuse, just no privacy.  I couldn’t take it any more”.  She gave other evidence that she did not reject her father and continued to be apparently affectionate, but from afar.  She did not want to hurt her mother and wanted to maintain family harmony.  She felt that she had no choice.  All of this was relevant to her credibility and were essentially matters for the jury. 

20. The arguments on this subject put on behalf of the appellant do not demonstrate that the verdicts were unsafe or unsatisfactory.

    Ground 2 –
    The non-return of a verdict on count 4 is inconsistent with the guilty verdicts on the other counts

21. The jury failed to agree in relation to this count.  The alleged incident related to an occasion when the victim’s mother was in hospital and her maternal grandmother was staying in the house.  The victim alleged that the appellant fetched her from a bedroom, took her to his bedroom where they had intercourse and that she slept the night in his bed, this being the only occasion when it was alleged that they spent the night together in bed. 

22. The submission on behalf of the appellant was that it is inconceivable that the victim could be mistaken as to this occurrence and that if any members of the jury had a doubt about this incident, it would have to involve a doubt as to her credibility.  The submission went on that if there was any doubt as to her credibility, then the evidence in relation to the other counts could not justify guilty verdicts. 

23. The answer to that submission is that the failure of a jury to reach agreement on one count out of six in an indictment does not render that failure inconsistent with the guilty verdicts returned on the other five counts.  It is not the same as where a verdict of not guilty has been returned and on its face that appears to be inconsistent with the findings of guilt based upon the credibility of the victim. 

1. In any event, the evidence was such – particularly that concerning the physical arrangements in the house when the complainant’s grandmother was staying there – as to provide a rational basis for the jury declining to conclude that it was satisfied beyond reasonable doubt in respect of the count on which they were unable to agree.

2. In MacKenzie v The Queen (1996) 190 CLR 348 the High Court (Gaudron, Gummow and Kirby JJ) stated some general propositions in relation to inconsistent verdicts. They said at 366, that the test of inconsistency is one of logic and reasonableness and cited a judgment of Devlin J in R v Stone (unreported, 13 December 1954) as follows:

   “He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion and once one assumes that they are an unreasonable jury or that they could not have reasonably come to the conclusion, then the convictions cannot stand.”

3. It is clear from the observations of the High Court that the onus is on the appellant to establish that there is no reasonable explanation for the verdict which is said to be inconsistent with the other verdicts.  In this case, there are other reasonable explanations for the jury’s inability to reach agreement about count 4 which do not involve a rejection of the victim’s evidence about that count, as mentioned above.

4. It is to be noted that, having retired to consider their verdicts on 15 July 1999, and not having reached unanimity the jury retired that night and resumed their deliberations the next day.  On 16 July 1999 the jury asked to hear the evidence of the victim, the appellant, the mother and the son regarding the offence charged in the fourth count.  That evidence was read to them and there was some discussion which it is not necessary to go into. 

5. The argument advanced on behalf of the appellant can be shortly disposed of.  There was no verdict on the fourth count upon which the appellant can ground an argument of inconsistency.  This is not a case where there was a finding of guilt on one or more counts and an acquittal on others.  The jury were unable to reach a verdict and accordingly there was no finding by the jury on the fourth count.  There is nothing unsafe or unsatisfactory demonstrated by the jury’s failure to deliver a verdict on that count.  One of the general propositions laid down by the High Court in MacKenzie (supra) was that if there is a proper way by which the appellate court may reconcile the verdicts allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.  If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court upon this ground to substitute its opinion of the facts for one which was open to the jury.  Their Honours went on to say that in a criminal appeal the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.

   Ground 3 –
   His Honour erred in allowing evidence to be led by the Crown from Gregory Chalker as to the character of the appellant

6. It is important to note that this ground of appeal is directed to the reception of the evidence of the witness Gregory Chalker only and is based upon the fact that a statement from Mr Chalker was provided to the appellant after, through his counsel, he had committed himself to raising character.  It is submitted that for the Crown to be permitted to lead evidence which was unknown to the appellant at the time when he made his decision to raise character was unfair to the appellant. 

7. In order to understand the ground, it is necessary to examine the conduct of the trial.  Before any evidence had been called, counsel for the appellant (accused) informed the trial judge that he was proposing to open evidence of good character and that there was evidence which had been foreshadowed that would be called by the Crown in rebuttal.  A discussion then took place as to when that evidence in rebuttal of the appellant’s contention of good character should be called.  His Honour ruled that the evidence should be led in chief, the appellant having given a fair indication of his intention to raise his own good character.  That, in my view, was procedurally incorrect but no complaint is raised about it by the appellant.  Indeed, the accused’s counsel said that this was the course he would prefer.  As a result, the various witnesses who gave evidence tending to demonstrate that the appellant was not a person of good character, gave that evidence as part of the Crown case and not in rebuttal to the appellant’s evidence. 

8. Before that happened, however, and before any witness gave evidence tending to rebut the good character of the appellant, the Crown prosecutor informed the trial judge that the Crown was on notice that good character would be asserted and that it would be general good character rather than in a particular respect.  There was some identification of the nature of that evidence before any witness gave evidence of it.  The Crown prosecutor having outlined the nature of the evidence, the trial judge then invited counsel for the appellant to make any submission which he wished to make.  He declined to say anything.  Accordingly, his Honour gave leave to the Crown to lead the evidence of which he had been informed.

9. The appellant was provided with proofs of evidence of certain witnesses whom the Crown proposed to call to rebut the appellant’s claim of good character.  Those proofs of evidence did not include that of Mr Chalker whose statement was provided at a later date. Evidence relating to the character of the appellant was then led from his wife, from the victim herself and from one Anthony Griffin, the brother of the wife and hence the victim’s uncle.  Mr Chalker was not initially on the Crown’s witness list.

10. In his cross-examination of the victim, counsel for the appellant raised the issue of who might have informed Bishop Browning of her allegations.  The victim identified Mr Chalker as the person she had “guessed” it was.  Counsel for the appellant further cross-examined the victim about Mr Chalker, even implying that she had put Mr Chalker up to telling the Bishop.  As a result, the Crown foreshadowed with the court the proposal to call Mr Chalker.  In that exchange, counsel for the appellant volunteered that he had seen Mr Chalker’s evidence which was “reflected in a diary minute of Bishop Browning” and that he was thus “not taken by surprise”. 

11. On 8 July 1999, which was the third day of the trial, and while the Crown case was still being presented, counsel for the appellant informed the trial judge that he had received a proof of evidence from Mr Chalker.  The Crown prosecutor outlined how his evidence was relevant.  There was further discussion in which counsel for the appellant conceded that the foreshadowed evidence of Mr Chalker in rebuttal of good character was known to him, but that the matters to be raised by Mr Chalker in rebuttal of the appellant’s good character should not be allowed because the appellant had not been supplied with any statement by Mr Chalker prior to the decision to raise character.

12. In my view, there is much force in the submission on behalf of the respondent in this appeal that there was no surprise in the evidence of Mr Chalker as the appellant was well aware of what Mr Chalker could say even though a proof had not formally been supplied until after the trial had commenced.  It was not new material.  Nevertheless, as the respondent has contended on this appeal, the decision to raise the appellant’s good character was a clear tactical decision which could well have been based on the strength of the appellant’s evidence of good character.  His witnesses were potentially impressive being regular members of the Canberra Anglican Parish, including a medical practitioner and also an Archdeacon.

13. In The Queen v Hamilton (1993) 68 A Crim R at 300, Hunt CJ at CL said,

    “I understand it to be the standard practice of all competent advocates to make a check with the Crown prosecutor before character is raised.  As already pointed out the information which should be sought is not only the details of the client’s criminal record;  counsel should also ask whether there is anything else known to the Crown which it would seek to elicit or to lead in the event that character were raised.  The Crown prosecutor is expected to supply that information upon request.  By doing so, the Crown is not thereby prevented from subsequently raising other matters where it could not reasonably have been expected to have known about them at the time of the request for such information – subject of course to the usual discretion of the trial judge to exclude those other matters where their admission would lead to unfairness.” 

14. It is probably correct to say that it was a forensic error for the appellant to raise good character, but the appellant was given an opportunity, having been apprised of Mr Chalker’s evidence, to give specific instructions and to seek an adjournment, if that was necessary.  In all the circumstances, I am not persuaded that it was unfair to allow the evidence to come forth through Mr Chalker.

15. It was further submitted on behalf of the appellant that the evidence rebutting good character given by Mr Chalker was substantially irrelevant to the appellant’s character but more in the nature of allegations that the appellant behaved in a crass manner at times.  These matters included allegations that the appellant would ask his wife “want a fuck?” in Mr Chalker’s presence and ask Mr Chalker if he would have sex with his wife if anything happened to him.  He described a game he participated in as a child involving the measuring of participants’ penises.  Such matters had the tendency to be prejudicial to the appellant but their probative value, insofar as relevant aspects of his character were concerned, was marginal at best.

16. It is a sufficient answer to this submission that the appellant was aware of what the witness was to be asked to say in rebuttal of the good character of the appellant and no objection was raised at the trial to the content of that evidence.

17. This ground also fails.

    Misdirections

18. On the hearing of the appeal leave was granted to the appellant to add an additional ground to that which appeared in the original notice of appeal, namely that the trial judge,

    (a)gave inadequate directions as to the use the jury could make of evidence as to the appellant’s bad character;

    (b)gave inadequate directions as to the significance of the delay of between six and eight years in the complainant reporting the allegations to the Ppolice;  and

    (c)by reason of this delay, should have warned the jury of the dangers of convicting without corroboration.

    It is necessary to set out what the trial judge said to the jury by way of directions as to the use the jury could make of evidence as to the appellant’s bad character and then to deal with the other aspects of this ground of appeal.

19. His honour said:

    “I will also just mention character evidence.  It is an issue because the accused has chosen to assert his good character.  He was not obliged to do that if he did not wish to.  He does so generally, he did not have to do that either.  He could have just put his character issue in a particular respect but having done so and having done so generally permits the Crown, as it did, to call evidence which it suggests to you is rebuttal evidence and as Ms de Veau correctly put, and I endorse it, even if you were satisfied that the accused’s character is flawed, that he is or has been a violent drunk, that he is or has been a person whose interests are prurient and crude, unbefitting a Minister of Religion or even that his profession of beliefs is hypocritical.

    That does not mean that the accusations against him are as a result of that are the more likely to be true.  However, if you do think that whether unbalanced or otherwise that he is a person of good character in all or any of those respects and particularly those respects that he and his witnesses assert then you may use that conclusion to support a view that it is unlikely that he would behave as alleged and also the supportive view that he is unlikely to lie particularly on oath before you.  That does not mean that you must therefore, assuming he was a person of good character – you must therefore accept anything he tells you or that you must say he could not possibly have done these things.  But it will matter that you must give weight to it.

    The weight you give is a matter for you. Sometimes persons of good character do commit offences and sometimes persons can appear to be persons of good character to those outside a family but be quite different inside it.  So, it does not preclude the possibility of the accusations being true but it is something that you have to weigh up before you could be satisfied that they are.”

20. It was submitted on behalf of the appellant that in the context of the case where so much prejudicial material as to the appellant’s character had been led, his Honour’s directions as to the use to be made of character evidence did not go far enough and that he should have explicitly and carefully instructed the jury that as a matter of law, if they found that the appellant was a person of bad character, they were bound to disregard this when it came to assessing the evidence in relation to his guilt.

21. Insofar as the second and third legs of this ground of appeal are concerned, the trial judge commented only briefly on the delay in prosecuting the appellant.  No warning was given in relation to corroboration. 

22. Delay was dealt with by his Honour in his directions when reminding the jury of the submissions which had been made on behalf of the appellant by his counsel.  He commented upon the submission that the case was word against word and the passing of time since the events occurred made it much more difficult.  His Honour then went on to say, “of course it does”.  No further direction was sought by counsel for the accused.

23. With regard to corroboration, his Honour was not required, as a matter of law, to give a warning in relation to corroboration.  In the context of the whole of the summing up, if counsel thought that some further directions were necessary, it was incumbent upon counsel to raise the matters at the time. 

24. It is now well recognised that courts of criminal appeal will not entertain objections to the directions of a trial judge when objection has not been taken at the trial, The Queen v Carbone (1976) 14 SASR 280 at 287. More recently the New South Wales Court of Criminal Appeal has reiterated the concern of appellate courts when it comes to the reliance on a failure to give a direction or a misdirection, neither of which has been the subject of objection at trial. In Verma (1987) 30 A Crim R 441, Hunt J (as he then was) said at 448-449 in a judgment with which Wood J (as he then was) and Campbell J both agreed,

    “Counsel who appeared for the appellant at the trial was a very experienced advocate in criminal cases.  He was invited to seek further or amended directions not only at the conclusion of the general directions which were given (that is, very shortly after the direction which is now challenged), but he was also invited to do so after each group of charges had been dealt with and at the conclusion of the summing up itself.  The absence of any complaint at any stage of the summing up concerning the direction which is now challenged is, in my view, eloquent evidence that there was not seen to be a need for any further direction in the atmosphere of the trial which existed at the time.

    It is as well to repeat what was said by this Court in Haeney (unreported, 13 June 1978):

    ‘What is important to be borne in mind is that the absence of objection by counsel, in particular to matters involving criticism of the form, content or balance of the summing up, furnishes a basis for concluding that, in the context of the atmosphere as it existed at the trial, and in the contemporary awareness of the manner in which the summing up was spoken, there was not apparent at the time of the trial any reasonable ground for concern regarding the adequacy and fairness of the summing up.  The Court of Criminal Appeal, no matter how experienced its members, and no matter how comprehensive the written record may be, can never hope to recapture the full texture of the atmosphere in which the question of the accused’s guilt was submitted to the jury in the concluding stages of the trial.  It is for this reason that, at an appellate level, there is a well recognised hesitancy in entertaining grounds of appeal challenging the form, content or balance of a summing up when those matters have not been adverted to by counsel at the proper time during the trial.’”

25. No objection was taken and no further direction was sought by counsel who appeared for the accused at the trial.  Accordingly, and within established principles set out in the above cases, there must have been no need for any further direction in the atmosphere of the trial which existed at the time.  This ground must also fail. 

26. In my opinion, the appeal should be dismissed.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gallop.

Associate:

Dated:             27 July 2000

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

 A 75 OF 1999

BETWEEN:	WILLIAM PAUL COPLEY Appellant
AND:	THE QUEEN Respondent

JUDGES:	GALLOP, SPENDER and MATHEWS JJ
DATE:	27 JULY 2000
PLACE:	CANBERRA

REASONS FOR JUDGMENT

SPENDER J

1. I have had the advantage of reading the reasons for judgment of Gallop J in draft form.  I agree with them and with the disposition of the appeal as he proposes.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:             27 July 2000

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 75 OF 1999

BETWEEN:	WILLIAM PAUL COPLEY Appellant
AND:	THE QUEEN Respondent

JUDGES:	GALLOP, SPENDER and MATHEWS JJ
DATE:	27 JULY 2000
PLACE:	CANBERRA

REASONS FOR JUDGMENT

MATHEWS J

1. I have had the opportunity of reading in draft the reasons for judgment of the presiding Judge, Gallop J.  I agree that the appeal should be dismissed for the reasons given by his Honour.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated:             27 July 2000

Counsel for the Appellant:	Mr J Brewster
Solicitor for the Appellant:	Legal Aid Office (ACT)
Counsel for the Respondent:	Mr R Refshauge
Solicitor for the Respondent:	Director of Public Prosecutions (ACT)
Date of Hearing:	7 February 2000
Date of Judgment:	27 July 2000