Eades v The Queen
[2001] WASCA 329
•1 NOVEMBER 2001
EADES -v- THE QUEEN [2001] WASCA 329
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 329 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:71/2001 | 5 OCTOBER 2001 | |
| Coram: | MURRAY J TEMPLEMAN J ROBERTS-SMITH J | 1/11/01 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time to appeal against conviction refused | ||
| A | |||
| PDF Version |
| Parties: | PAUL LEONARD EADES THE QUEEN |
Catchwords: | Criminal law and procedure Sexual assault Observations by both counsel to jury as to why complainant may have fabricated evidence of nonconsent Absence of direction by trial Judge Absence of direction by trial Judge as to use of evidence of distressed condition of complainant as corroboration of evidence of nonconsent Error alleged in directions about mistake under Criminal Code (WA), s 24 Whether a miscarriage of justice results |
Legislation: | Criminal Code (WA), s 24 |
Case References: | Azaddin v The Queen (1999) 109 A Crim R 474 Deriz v The Queen [1999] WASCA 267; 24 November 1999 Gavin v The Queen (1992) 6 WAR 195 Gill v The Queen [1999] WASCA 68; 23 June 1999 Melbourne v The Queen (1999) 198 CLR 1 Palmer v The Queen (1998) 193 CLR 1 R v Flannery [1969] VR 586 R v McDougall [1983] 1 QdR 89 R v McKay [1986] 1 QdR 476 R v Schlaefer (1984) 37 SASR 207 Smith v The Queen (1993) 9 WAR 99 McComish v R, unreported; CCA SCt of WA; Library No 980529; 16 September 1998 R v Ireland (1970) 126 CLR 321 R v Knight (1966) 50 Cr App R 122 R v Redpath (1962) 46 Cr App R 319 The Queen v McDonald [2000] WASCA 336 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : EADES -v- THE QUEEN [2001] WASCA 329 CORAM : MURRAY J
- TEMPLEMAN J
ROBERTS-SMITH J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sexual assault - Observations by both counsel to jury as to why complainant may have fabricated evidence of nonconsent - Absence of direction by trial Judge - Absence of direction by trial Judge as to use of evidence of distressed condition of complainant as corroboration of evidence of nonconsent - Error alleged in directions about mistake under Criminal Code (WA), s 24 - Whether a miscarriage of justice results
Legislation:
Criminal Code (WA), s 24
(Page 2)
Result:
Extension of time to appeal against conviction refused
Category: A
Representation:
Counsel:
Applicant : Mr M T Trowell QC
Respondent : Mr B Fiannaca
Solicitors:
Applicant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Azaddin v The Queen (1999) 109 A Crim R 474
Deriz v The Queen [1999] WASCA 267; 24 November 1999
Gavin v The Queen (1992) 6 WAR 195
Gill v The Queen [1999] WASCA 68; 23 June 1999
Melbourne v The Queen (1999) 198 CLR 1
Palmer v The Queen (1998) 193 CLR 1
R v Flannery [1969] VR 586
R v McDougall [1983] 1 QdR 89
R v McKay [1986] 1 QdR 476
R v Schlaefer (1984) 37 SASR 207
Smith v The Queen (1993) 9 WAR 99
Case(s) also cited:
McComish v R, unreported; CCA SCt of WA; Library No 980529; 16 September 1998
R v Ireland (1970) 126 CLR 321
R v Knight (1966) 50 Cr App R 122
R v Redpath (1962) 46 Cr App R 319
The Queen v McDonald [2000] WASCA 336
(Page 3)
- MURRAY J:
The proceedings below and the material evidence
1 The applicant was presented in the District Court at Albany to be tried by a Judge and jury upon an indictment containing seven counts. Counts 1 and 2 were of offences of indecent assault. Count 1 was said to have been an offence committed when the applicant touched the complainant upon her vagina with his fingers. Count 2 was said to have occurred when he touched her vagina with his mouth. Counts 3 to 7 inclusive were all counts of sexual assault - sexual penetration without consent. The forms of sexual penetration charged were as follows: Count 3 was alleged to be "by fingering her vagina". Counts 4, 5 and 6 all alleged penile penetration of the complainant's vagina and count 7 was charged in the same terms as count 3.
2 The trial took place on 14 and 15 January 1999. In the result, the applicant was acquitted of counts 1, 3 and 7, those concerned with touching the complainant's vagina and "fingering" her vagina, but he was convicted of the other four counts, the assault committed by touching her vagina with his mouth and the three offences of penile penetration of the complainant's vagina without her consent.
3 It is convenient to note at this point that the only evidence effectively in relation to the commission of each of the alleged offences was the evidence of the complainant and the applicant. The evidence was that all the alleged offences occurred on the one occasion, although the offence which was alleged in count 7, of which the applicant was acquitted, was said by the complainant to have occurred rather later than the other offences and in the shower, whereas the other six offences she alleged occurred in a bedroom. There was a gap in time between counts 6 and 7 during which photographs of the complainant and her female friend had been taken in the kitchen.
4 As to that offence and the others of which the applicant was acquitted, his evidence at trial was that none of these incidents occurred. The jury therefore had to resolve that issue, being satisfied beyond reasonable doubt that the complainant's evidence was reliable in that regard, as well as, if that was the case, that the incidents in question occurred without her consent.
5 In relation to the other four offences charged, the evidence was that the applicant, who was at the relevant time aged 38, and the complainant,
(Page 4)
- who was aged 16, were not known to each other. On the evening of 19 March 1998 the applicant and his nephew came to the complainant's home. She was present, together with a female friend. After some conversation and smoking of cannabis the applicant's nephew and the complainant's friend went to a bedroom. The complainant said that she was taken by the applicant to another bedroom where the offences occurred without her consent. She said that after the commission of the offences which were counts 1 to 5 inclusive on the indictment, she attempted to separate from the applicant but he prevented that and she and the applicant remained in the bedroom where they slept until morning. On waking the following morning the applicant again, without her consent she said, inserted his penis into her vagina and had sex with her in that way. Some time afterwards the applicant said that she should shower. While she was doing so he followed her into the shower and she said that in the course of washing her, he inserted his finger into her vagina. As I have said, this was count 7, an offence of which the applicant was acquitted.
6 I have mentioned that the applicant in his evidence denied committing the acts which were alleged in counts 1, 3 and 7. He did, however, admit the acts which were the subject of counts 2, 4, 5 and 6. His defence to those charges was that the complainant expressly consented to that sexual activity and he raised the question of mistake in relation to the absence of consent, pursuant to the Criminal Code (WA), s 24.
7 It would seem to be clear that the jury was not prepared to accept the complainant's evidence alone as to the occurrence of the acts in question. At least they were not persuaded beyond reasonable doubt that her evidence about that was reliable in those cases where the applicant denied on oath that any such incident had occurred. It does not necessarily follow that they rejected the complainant as a credible witness generally. They may simply have had reservations about the reliability of her recollection and therefore her testimony, and they were not prepared to act upon her evidence alone. However, where her evidence as to what occurred was accepted by the applicant and there was no contest between the two as to that, the jury were prepared to accept the evidence of the complainant that what occurred was without her consent and apparently, having regard to the way in which the trial was conducted, they not only rejected the applicant's evidence about that but also found themselves persuaded beyond reasonable doubt that the applicant did not honestly and reasonably but mistakenly believe that he had the complainant's consent.
(Page 5)
8 The evidence upon the issue of consent between these two witnesses was starkly different. Her evidence was that when she was taken into the bedroom the applicant first said "I don't want to fuck you. I just want to lick you out." She said that she replied that she did not want to do that but he forced her onto the bed, removed her jeans and underwear against her resistance, spread her legs by force and committed the offences which were count 1 and count 2. She continued, she said, to say "no". The acts of digital and penile penetration then occurred while she lay inert and despite the fact that she said that she did not want that to happen and asked him to stop. Although after it was over she left the room, he soon made her return to the bedroom and required her to stay there until, as I have said, at the conclusion of this activity, both slept in the bed. On the following morning when the applicant demanded sex again, she said he must stop because she had to leave for work.
9 On the other hand, the applicant gave evidence that upon seeing the other two persons go to a bedroom, the complainant was willing to go to a bedroom with him. She was on the bed and he was on the floor on his knees when he asked her "If you want me to go down on you to lick you out, you take your own clothes off and I know that it's consent." This she did. The incident which was count 2 on the indictment then followed, at the conclusion of which the applicant asked the complainant if she had had an orgasm and she laughingly said that she had. Thereupon the applicant asked her "Could I root you?" She said "Yes" and with her co-operation he then had sex with her by penetrating her vagina with his penis. The act was completed to ejaculation. This was followed by another act of penile penetration after the applicant asked the complainant again if he could have sex with her and she agreed. After a short time he withdrew and she turned onto her side, in which position he penetrated her from behind. The complainant at no time objected until she asked him to stop so that she could go to work and when she did that, he immediately complied. At no time, including on the following morning, was the complainant distressed. She was at all times "in a good mood".
10 Upon his conviction of the four offences described above, the applicant was sentenced to an aggregate term of imprisonment of 9 years. He is currently serving that term of imprisonment.
Extension of time
11 His application for leave to appeal against his convictions was not made until 26 April 2001, a delay of some 27 months. It is unnecessary to review in any detail the reasons for that gross delay. It was contributed to
(Page 6)
- by inactivity on the part of counsel (not Senior Counsel who appeared for the applicant before us) and his solicitors, but the delay was also contributed to by the applicant and those concerned about him. There are periods of unexplained idleness.
12 The principles to be applied in respect of the grant of an extension of time in such a case are well understood. They have been formulated in a number of cases by this Court and, in particular, in Gavin v The Queen (1992) 6 WAR 195. As Kennedy J said in Azaddin v The Queen (1999) 109 A Crim R 474 at 476:
"The delay in filing the application in this matter has been gross. Delays of this magnitude require a cogent explanation before the Court will be prepared to extend time. The longer the delay, the more exceptional the circumstances must be shown to have been before an extension will be granted, unless it can be demonstrated that there will be a miscarriage of justice if an extension should not be granted."
13 No cogent explanation has been provided for the very considerable delay in this case. The extension of time will therefore only be granted if it clearly appears that to fail to substantively deal with the application for leave to appeal against conviction will result in a miscarriage of justice remaining without remedy.
14 Turning to that question then, I note that the application was sought to be argued upon the following grounds.
The question of the complainant's motive to lie
15 This topic was raised in a ground of application expressed in the following terms:
"1. The learned trial Judge erred in failing to warn the jury that the approach suggested by the Crown prosecutor was irrelevant to their deliberations and that it effectively reversed the onus of proof.
Particulars
(1) The Crown prosecutor in submissions to the jury stated:
(Page 7)
- 'The other thing, when we think about this commonsense issue: why would she make it up? What's her motive?".
- (2) Such an approach was erroneous and the learned trial Judge ought to have cautioned the jury against it."
16 In cross-examining the complainant, learned defence counsel, an experienced practitioner, concluded by putting to the complainant that her allegations that the sexual activity had occurred without her consent were deliberately false. He suggested that what took place was with her consent, that it had been a pleasant evening, cannabis was smoked, she had sex with the applicant and then in the morning, after more sex, she thought twice about it and became concerned about what people would think. And so she complained that what had occurred with her consent, happened without her consent. All of those propositions the complainant denied and there was no evidence to support them unless, ultimately, the jury accepted the evidence of the applicant, rejected as untruthful the complainant's evidence of non-consent and considered that her perjured account was explained in the way suggested by counsel.
17 Counsel followed up this line in his final address to the jury, suggesting that it might well be the case that the explanation for the allegations made by the complainant was embarrassment, regret or a motive of that kind. Unless that view of the facts could be excluded, counsel suggested, the jury could not rely upon the complainant's evidence as being a truthful account and so they would be bound to acquit. The point was taken up in his final address by the learned prosecutor who made remarks which included those of which ground 1 complains. Counsel asked the jury to consider a "first commonsense thing" which was:
"This whole thing about a 16-year-old girl who is unknown to the accused man, an hour and a half later he comes uninvited into her house late at night and lo and behold she is engaging in sexual activity - consensual?
Is that commonsense or is what she is telling you the truth and can you believe that beyond reasonable doubt? The second commonsense point that has been alluded to by Mr Sutherland quite properly - you might ask yourself: why would she make this up? What is her motive? Okay. She has told the police.
(Page 8)
- She has come along in open court, told a whole lot of people she doesn't know what this man did to her - these intimate things. That's a big deal for a young girl to be telling. It's not an easy thing to make up. What has she got against the accused man? She doesn't know him from a bar of soap. She has only met him on one night.
The defence suggest to you, well, it's the after morning sexual regret, if I call it that. She is embarrassed about what she did. Well, if that's right she is a very cunning and manipulative young lady because she has taken this escapade all the way through the court. She has continually said this was not consensual sex. She told the police that. She has told you that yesterday. She told me that when I was asking her the question.
Mr Sutherland, an experienced lawyer, cross-examined her and said, 'Well, I'll put it to you that's not the case,' and she stuck by that the whole way - manipulative, calculating. Is that what you saw? She has done something very serious. I would suggest to you what is serious about this is what this man has done to her. He has forced himself on her, against her will and engaged in these sexual acts throughout the night.
The other thing, when we think about this commonsense issue: why would she make it up? What's her motive? It's after morning - morning after regret. Well, really she has had very little time to make it up this elaborate plan of crying false rape, because within, I would say approximately to you, about an hour or so after they woke the whole time, these men have been until this - there have been very few times where she is alone - with Patricia, and she was part of it, or very few times she has had this to think about in her own mind; that 'I'm just going to go down to someone and tell them that I was raped by this man that I was having consensual sex with.'
When you think about it, if that's right, that she had had regrets about it all, well, let's go back to the facts. Only four people knew Eades was there, the four occupants of the house, and really only two people knew about the sexual acts - her and Eades. So what has she got to worry about if that's the truth?"
18 It was the case that defence counsel was putting to the jury that they might not be prepared to accept the complainant as a truthful witness
(Page 9)
- because they could not exclude the fact that she had a motive to lie. It seems clear to me when the rhetorical question of the prosecutor is considered in its full context that he was merely taking up that issue and presenting for the jury's consideration arguments to counter the proposition advanced by the defence. Counsel argues, however, that the remarks made were calculated to cause the jury to think that unless the applicant was able to persuade them that the complainant had been motivated to lie, they would be bound to accept her evidence and so convict. Counsel suggests that that had the effect of reversing the onus of proof, but it should be said immediately that the trial Judge gave proper and complete directions about the onus and standard of proof, including the need for the jury to be persuaded that the complainant's evidence was not only truthful but also accurate, and they were to acquit if, although they did not positively accept the applicant's evidence as correct, it was sufficient to raise a reasonable doubt in their minds.
19 In arguing this ground, counsel relied principally on the decision of the High Court in Palmer v The Queen (1998) 193 CLR 1. That was a case where during a trial for sexual offences the accused was asked in cross-examination whether he could suggest any reason why the complainant would invent allegations against him. He was unable to do so and was convicted. The convictions were quashed, however, upon the ground that the complainant's credibility could not properly be bolstered by the fact that the accused could not suggest a motive for her to lie and to put that series of questions with that result was to run the risk that the standard of proof applied by the jury might indeed be diminished with the consequent liability for the trial to result in a miscarriage of justice.
20 Brennan CJ, Gaudron and Gummow JJ expressed the majority view at par [9] when their Honours said:
"… a complainant's account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant's account, is strengthened by an accused's inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished. That is the converse of the proposition … that proof of a motive to lie weakens a complainant's credibility. The correct view is that absence of proof of motive is entirely neutral."
- But that was a conclusion expressed against the background of the High Court's express acknowledgment that it was permissible to cross-examine
(Page 10)
- a complainant in order to elicit a motive to lie and indeed that other affirmative evidence might be given of it. At par [7] their Honours said:
"A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts."
22 The approach of the High Court to this question has been followed by this Court in Gill v The Queen [1999] WASCA 68; 23 June 1999, in respect of questions put to the accused during the course of a video-recorded interview by investigating police officers where, however, the conclusion that there had been a miscarriage of justice was not reached because of clear directions by the trial Judge calculated to prevent the jury embarking upon any impermissible reasoning process (per Pidgeon and Parker JJ, Wallwork J dissenting). It was recognised in
(Page 11)
- Palmer by the majority that such a firm and clear direction could prevent a miscarriage of justice.
23 A similar view was taken in the later case of Deriz v The Queen [1999] WASCA 267; 24 November 1999 by a majority of Ipp and Parker JJ, with Wallwork J again dissenting. There the questions asked by investigating police during a videoed interview were to seek from the accused an explanation for the immediate distressed condition of the complainant if events between the complainant and the accused had been as he described them. Parker J, with whom Ipp J agreed, thought those were questions of a quite different kind to those dealt with in Palmer, the answer to which could not properly be regarded as having the adverse affect apprehended in Palmer, giving rise to the need for a special direction designed to prevent any possibility of a miscarriage of justice arising out of the line of enquiry being pursued.
24 However, this is a different case, of a type expressly distinguished by the High Court from its concerns expressed in Palmer, and for the above reasons, in my opinion, ground 1 of the application is not made out.
The distressed state of the complainant
25 The second ground of the application is expressed in the following terms:
"2. The learned trial Judge erred in failing to direct the jury as to what use they could make of the evidence of the distress of the complainant especially in light of the Crown prosecutor's invitation to the jury to deal with it as corroboration.
Particulars
(1) The Crown prosecutor in submissions to the jury stated:
'She was distressed, upset, crying, breaking down. All those things are corroborative or confirm from the witnesses of Amanda Plowman in particular and Kerry Hazell that she was raped, because that's, I would suggest, commonsense would suggest, what you would expect of a rape victim'.
(Page 12)
- (2) The learned trial Judge in dealing with distressed condition said:
'At the time she was crying and she later said that she looked upset. That's evidence of her disposition, how she looked at that relevant time … …'.
(3) The question of distressed condition required a much more comprehensive direction."
26 Senior Counsel elaborated upon this ground by submitting firstly that in the factual circumstances which applied on the morning after the sexual acts which were the subject of the indictment of which the applicant was convicted, the complainant's distressed state really could not be relied upon as corroborative of the truth of her account that the sexual acts in question had occurred without her consent. As I understand it, if the Court is not with him on that point, counsel would support this ground by the submission that the trial Judge erred in not commenting adversely upon the minimal weight which could be accorded to such evidence in the circumstances of the case.
27 I have mentioned that the complainant's evidence was of a series of sexual acts committed during the course of the night, indeed in the early hours of the morning of 19 March 1998. When that activity ended the complainant's evidence was that after an unsuccessful attempt to leave the bedroom and the company of the applicant, the two ended up sleeping in that room. On waking the next morning there was further sexual activity which ended when the complainant said that it really must stop because she had to get ready and go to work. They went to the kitchen and then she went to the bathroom to shower. I need not detail the events which she said occurred during that process. Ultimately the complainant and her housemate left the house with the applicant and the other male and the four walked to the place of work of the complainant and her friend.
28 On arrival at their work the young women went into the shop and the men left. The complainant's evidence was that after they got inside she started crying, as did her friend, in the presence of another workmate, a Ms Plowman, to whom the complainant made her first complaint of rape. The older sister of the complainant's housemate was then called on the telephone. She came and took the two girls, both still distressed, back to her house where a further complaint was made to her.
(Page 13)
29 When cross-examined, the complainant agreed that on that morning, in the kitchen, the applicant's male friend had used the complainant's camera to photograph both her and her housemate. The photographs apparently show both girls presenting a cheerful demeanour but the complainant would not accept that she was in fact in a "happy, contended mood about what had been going on". Nor would she agree when cross-examined that her distress was feigned to bolster her false complaint that what occurred was without her consent. The complainant's friend confirmed her distressed state at their place of work and at the home of her sister where "she was crying, very quiet, just all upset and shaky".
30 Ms Plowman said that the complainant was crying when she first saw her. The complainant went out to the back of the shop and asked Ms Plowman to go to the front to see if there were any men hanging around. She did that and there was no-one there. When she returned the complainant was "bawling her eyes out", "she couldn't really talk properly" but she made a complaint of rape. Later, she said, that when the complainant first came into the shop "she looked upset". She went to the back of the store where she "broke down". She was "really upset".
31 The sister of the complainant's friend gave evidence that when she arrived at the shop, having been called, the complainant came out to the car looking as if she had been crying and she was "very distressed". When they got to her home she was in much the same state.
32 In a case of sexual assault, or concerning sexual offences generally, there is no question that the distressed condition of the complainant after the events in question may, if it is independently observed, be capable of being corroborative of the truth of her account, particularly in respect of the issue of non-consent. It is a question for the trial Judge whether the evidence is capable of being used in that way. As to that question, the Full Court of Victoria said in R v Flannery [1969] VR 586 at 591:
"In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to
(Page 14)
- corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. If such inference is not open, the evidence is not, in our opinion, capable of amounting to corroboration. We should add that except in special circumstances … evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his charge."
33 As to the latter aspect, the case of Flannery was referred to by the Queensland Court of Criminal Appeal in R v McDougall [1983] 1 QdR 89 at 91 where, speaking of the warning about the weight of such evidence, D M Campbell J, with whom the other members of the Court agreed, said:
"The reason for a warning is that distress may be feigned or may not reflect the complainant's state of mind at the time of the offence. But a warning is not called for in every case. It is not absolutely necessary that a jury be told that generally evidence of a distressed condition is of little weight."
34 In my respectful opinion, that is sound in principle. Whether or not a warning of this character is required and if so, in what terms it should be given to assist the jury to a better evaluation of the probative value of evidence, as in the case of warnings to be given to the jury about other evidentiary matters, is to be guided by the principle that what, if anything, a trial Judge is required to do in that regard should be decided by considering what is necessary in the interests of justice to best assist the jury in their fact finding process, having regard to the particular circumstances of the case.
35 In my respectful opinion, the law in this regard is well and succinctly put by Hayne J in his judgment in Melbourne v The Queen (1999) 198 CLR 1 at par [142] - [144] where his Honour said:
"The task of directing a jury in a criminal case is never easy. It would be made no easier (and would serve no purpose) if trial Judges were bound to give more, and more complicated, directions than the particular case requires. But the obligation of a trial Judge, onerous as it is, does not extend so far. … The directions that a trial Judge gives the jury in a criminal trial
(Page 15)
- must instruct the jury on only so much of the law as they need to know for the purpose of deciding the particular case that has been tried before them. It is neither necessary nor desirable that a Judge's charge go further.
It is trite to observe that the jury, not the Judge, are the sole judges of questions of fact. But that does not mean that a trial Judge can leave all questions of fact to the jury without giving them any directions. The trial Judge in a criminal trial must instruct the jury about some matters that affect how they set about finding the facts. Thus in some cases the Judge must warn the jury of dangers of which they must beware when they are considering the facts. Directions about the dangers of identification evidence or about accepting uncorroborated evidence in some circumstances provide ready examples. But it is always necessary to bear steadily in mind that it is the jury that decide the facts - not the trial Judge, especially is this necessary when the question is (as it is in this appeal) whether a trial Judge is bound to direct a jury on some matter that touches how the jury finds the facts in the case. The warnings about factual issues that I have mentioned are given to the jury not just because they relate to one or more of the issues in the case but because, if they are not given, the jury may omit consideration of important matters (of which they may be unaware) and wrongly conclude that guilt has been demonstrated beyond reasonable doubt."
36 In arguing this ground, learned Senior Counsel placed particular reliance upon dicta of King CJ in the Court of Criminal Appeal of South Australia in the case of R v Schlaefer (1984) 37 SASR 207 at 216 - 17 where his Honour, with the agreement of the other members of the Court, when speaking about "manifestations of distress", said:
"To allow such manifestations to be treated as corroborative, other than in exceptional and compelling circumstances, must have the effect of eroding seriously the rule as to corroboration in sexual cases. … The apparently distressed condition of the complainant can only confirm the story of sexual assault if, in the circumstances of the case, it is reasonably explicable only on the basis of the sexual assault having occurred."
- That view would appear to me, with respect, to require the trial Judge to intrude into the fact finding province of the jury. It is not a view which
(Page 16)
- has been accepted in subsequent cases and indeed it has been said to be too extreme: R v McKay [1986] 1 QdR 476, 481.
37 In this case it was not suggested at trial that the distressed condition of the complainant, if the jury so found, in the circumstances about which the witnesses testified, was not capable of corroborating her evidence of sexual assaults committed without her consent. For my part I would see no basis upon which the trial Judge would have been entitled to hold the evidence to be inadmissible because it was not capable of amounting to corroboration. The weight of the evidence was then for the jury. The circumstances which gave it less or greater weight were urged upon the jury in their final arguments by defence counsel and prosecuting counsel respectively. This was not the sort of case, I would have thought, where the questions affecting the weight to be given to the evidence needed further direction by the trial Judge.
38 Indeed the trial Judge gave no direction, particularly about the weight of the evidence as being corroborative of the complainant's account. His Honour dealt with this evidence effectively as part of the background against which the complainant first complained about what had happened to her. His Honour said:
"Amanda Plowman was the photo lab assistant at Fast Photographs. She said she saw the complainant, Danielle, at 8.10am that morning. At the time she was crying and she later said that she looked upset. That's evidence of her disposition, how she looked at that relevant time but she also gave evidence that the complainant told her - the words were, 'She said she had been raped.'
That is, as counsel have told you, complaint evidence. The fact that somebody complains about something doesn't mean it has happened. You would know that from your ordinary experience in life but I need to tell you the use that you can make of that evidence and it is this: evidence of complaint by the complainant, is not evidence of the facts. It is not evidence that it happened and it can only be used by you for the limited purpose of judging the consistency of conduct of the complainant with the evidence given by her. That's the only use which you can make of that fact - of the evidence that she has in fact complained.
(Page 17)
- The other Miss Hazell, Kerry Hazell was called. She gave evidence that the complainant looked distressed when she saw her on 20 March. That was the Crown's case."
39 Those remarks were arguably unduly favourable to the applicant in respect of the evidence of the complainant's distressed condition because they tend to convey to the jury that the complainant's distressed condition was only evidence of how she looked at the time when she made the complaint and that it had no other relevance distinct from it being part of the circumstances in which the complaint was made. In my opinion, ground 2 is not made out.
The question of the accused's mistaken belief in consent
40 With respect to those alleged incidents which the applicant agreed with the complainant in evidence had occurred, the issue was whether they were established to have occurred without the complainant's consent. At the commencement of these reasons I stated the major portion of the material evidence, from which it will be apparent that the complainant's evidence was of protest, physical resistance and tearful objection to what occurred. If that evidence was accepted, as apparently it was, there could, in my opinion, be no doubt that what occurred was without her consent and that it would have been abundantly plain to the applicant that that was so.
41 On the other hand, his evidence presented a picture which was in stark contrast to the evidence of the complainant. His evidence was that from the outset he sought and obtained the complainant's express agreement to participate in every form of sexual activity which occurred, both during the night and on the following morning. Upon his evidence there could be no doubt that the complainant was both a willing participant and happy about what had occurred.
42 In truth it seems to me that upon that evidence the question was simply whether or not the evidence accepted by the jury carried them beyond reasonable doubt to the conclusion that what they found occurred, occurred without the complainant's consent. If they so concluded it had to be upon the basis that they positively rejected the applicant's evidence in this regard and it seems to me that no additional question really arose as to whether upon the complainant's evidence alone the applicant had acted under an honest and reasonable but mistaken belief that he had the complainant's consent to what occurred: Criminal Code (WA), s 24.
(Page 18)
43 However, at trial the defence positively raised the application of s 24 of the Code. There was no suggestion that it should not be left to the jury and the trial Judge did give the jury appropriate directions in that regard. No exception is or could be taken to what his Honour told the jury about s 24, but the relevant ground of the application before this Court complains that his Honour erred in suggesting to the jury that it was for them to decide whether mistake was an issue. But in my opinion that was not the effect of the directions given by the trial Judge who clearly left to the jury the need to be satisfied beyond reasonable doubt that the requirements of s 24 were not made out.
44 The passages about which complaint is made are these:
"I have to tell you that if you consider that the issue of mistake arises in this trial, then the onus is on the Crown to satisfy you beyond reasonable doubt that the accused was not relevantly mistaken."
- Having discussed how the Crown might discharge that onus, his Honour again said:
"… if you are of the view that the accused may be under an honest - or if there is anything in the evidence that causes you to consider that question, then the Crown will need to satisfy you beyond reasonable doubt that the accused did not have an honest and reasonable but mistaken belief that she was consenting."
As I have said, the possible application of the section was left to the jury and in the remarks about which complaint is made, I can see nothing to divert the jury from a proper consideration of the issues raised by the section. It was, of course, ultimately for the jury to say, as the question of mistake was left to their consideration, whether upon the facts as they found them to be the application of the section was negated beyond reasonable doubt.
45 In my view there is no merit in the grounds of appeal which the applicant argues and that being the case, there is no possibility that any miscarriage of justice will be left unaddressed by a refusal to extend the time to appeal. I would refuse the application for an extension of time.
46 TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by Murray J.
(Page 19)
47 I agree with those reasons and am therefore of the view also that the application for an extension of time in which to appeal should be dismissed.
48 ROBERTS-SMITH J: I have had the benefit of reading in draft the reasons to be published by Murray J. I agree with the reasons and conclusions set out by his Honour and have nothing further to add.
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