Gaffney v Australian Postal Corporation

97/1991
List "A"

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: S v R [1991] TASSC 102; A97/1991

PARTIES:  S, M P
  v
  R

FILE NO/S:  CCA 49/1991
DELIVERED ON:  12 November 1991
DELIVERED AT:  Hobart
JUDGMENT OF:  Green CJ, Crawford and Zeeman JJ

Judgment Number: A97/1991
Number of paragraphs: 66

Serial No 91/1991
List "A"
File No CCA 49/1991

M P S v THE QUEEN

REASONS FOR JUDGMENT GREEN CJ (Dissenting)

CRAWFORD J
ZEEMAN J
12 November 1991

Order of the Court

Appeal dismissed.

Serial No 97/1991
List "A"
File No CCA 49/1991

M P S v THE QUEEN

REASONS FOR JUDGMENT GREEN CJ
12 November 1991

This is an appeal against the appellant's conviction for rape.

The complainant who at the material time was aged 16 years gave evidence that on 20 July 1990 she visited friends for some hours during which time she consumed three or four cans of beer and a small bottle of rum. At about 10.00pm she left and made a telephone call from a public telephone situated on the corner of Brisbane and Elizabeth Streets in Hobart. As she left the telephone box a motor vehicle passed, executed a 'U' turn and stopped in Brisbane Street about 2 or 3 metres away from the telephone box. The appellant got out of the car and invited the complainant to "come for a spin". The complainant said "no" whereupon the appellant "yelled 'get in the car'". The complainant's examination in chief continued:

"And what effect did his voice have on you? ... It scared me.
Did you see anything in the vehicle at about that time? ... I saw a knife on the dashboard.
Could you just describe that knife, the size approximately please? ... It was probably about twenty centimetres long.
Right and what did you do then? After he said this what did you do? ... I was so scared that I ended up getting in the car."

In cross examination the complainant said that she thought that she saw the knife after the appellant had yelled at her but that it could have been at the same time. The complainant gave evidence that the appellant drove the car to the Domain where he stopped and that by the time the car had stopped she was shaking and crying. The appellant gave her marijuana and cigarette tissues which she rolled into a cigarette which she and the appellant smoked. She said that she didn't want to smoke the cigarette but she agreed that the appellant did not make any threats which had the effect of coercing her into smoking the cigarette. After they had finished the cigarette the complainant said that the appellant asked her what she thought about sex to which she replied that she was not interested. The appellant placed his hand on her chest and then after taking down his trousers and the complainant's jeans had intercourse with the complainant. During this time the complainant said she was crying, pushing the appellant on his shoulders and telling him to leave her alone, get off her and take her back. Another motor vehicle arrived on the scene whereupon physical contact between the appellant and the complainant ceased. The complainant believed that the appellant did not ejaculate. The complainant pulled up her jeans and at some stage smoked a cigarette and got out of the car pretending that she was about to be sick. She thought of running away but was "too scared of what might have happened". She returned to the car and the appellant drove her back to the city and dropped her near the telephone box where he had picked her up. The first express indication given by the complainant that the act of intercourse was without her consent was made in her apparent acceptance of the premise contained in the following question which she was asked in examination in chief after she had completed her narrative of what had happened.
"Have you seen this man today who had sex with you without your consent on the Domain? ... Yes."

The complainant's examination in chief concluded with the following questions and answers:
"Did you at any stage consent to this man having sex with you or to his penis remaining inside your vagina ... No
Did you ever do anything that suggested to him in any way that you were agreeable to him having sex with you ... No"

There was evidence that shortly after the complainant had been dropped at the telephone box she appeared distressed and complained that she had been raped. The Crown case also included evidence that after being approached by the police in the street the appellant ran away but after running about 20 yards was intercepted and voluntarily returned to the police car. The Crown also relied upon evidence given by a police officer that whilst the appellant was being escorted by police up a laneway after being interviewed he lied by saying that he did not have anyone in his car, that he did not know the complainant and that he did not have intercourse with her. There was also evidence that no knife was found in the appellant's car when it was subsequently searched. At the trial it was disclosed to the jury that the appellant had previously been tried on this charge but that the trial had miscarried without any verdict being given. A police officer gave evidence that at the previous trial the appellant had given evidence in the course of which he said that he had had intercourse with the complainant but that he did not ejaculate and that the reason he ceased having intercourse was "because he developed a guilt complex about cheating on his wife".

The appellant gave evidence in which in essence he said that he picked up the complainant alongside the telephone box and drove her to the Domain where consensual sexual intercourse took place. He said that the initial approach at the telephone box was made by the complainant when she spoke to him whilst holding a glass of rum and coke in her hand. The appellant denied that the complainant said or did anything which suggested that she was not consenting to intercourse. He agreed that they had shared a marijuana cigarette but said that this was at the complainant's request. He also said that a knife was in a sheath in the glove box of the car but not on the dashboard and that the complainant took the cigarette tissues from the glove box. When asked how he had come to cease having intercourse the appellant said:

"Well when I was having intercourse it was just after we'd smoked this joint and I got a real complex about you know having sex with another woman bar my wife and if anybody smoked dope they'd understand it, it can give you that effect."

The appellant agreed that after he'd been first approached by the police he had "walked away ... pretty fast" but said that he did so in order to dispose of some marijuana which was in his pocket. The appellant denied that a conversation in the terms recounted by the police witnesses ever took place in the laneway or anywhere else.

"1THAT the Applicant's conviction for Rape is unsafe, unjust and unsatisfactory.
2THAT a miscarriage of justice has occurred by virtue of the actions of the Crown Prosecutor in that he:
(a)Cross–examined the Accused as to bad character (adultery) when no basis for such cross–examination had ever been established;
(b)Wrongly used a name on a written note, handed to the Accused, who was then under cross–examination, in that the name was that of a person in respect of whom the accused had been convicted of a crime and sentenced to imprisonment;
(c)Acting in a manner calculated to unfairly cause the Accused to make an outburst in open court in the presence of the Jury, such outburst being intended to prejudice the said Jury against the Accused."

Ground 2

The following exchanges which commenced at the beginning of the cross examination of the appellant are relevant to this ground.

"MR JACOBS: (cross examining) Mr S how long had you been married at the time of this incident? ... How long had I been married?
Yes? ... Seven years.
Had you ever committed adultery before?

HIS HONOUR: Don't answer that question for the moment, Mr McDermott?
MR McDERMOTT:     Well I object Your Honour on the – I just submit that its 1: not relevant to proving any fact in issue, and secondly its a question that in the exercise of Your Honour's discretion as to the probative value of it Your Honour ought to exclude.
HIS HONOUR: Oh, normally I would accede to all of that readily except for the proposition that the accused by his own evidence has offered up his marriage as an explanation for not completing the act of intercourse, hasn't he. Oh, that's putting it badly of course, offered guilty feelings towards his wife as the reason now surely the Crown's entitled to probe that aren't they? In the absence of that I think I'd readily accept what you say. I mean hypothetically if the answer was 'yes, once a week for seven years' then obviously his credit about the answer would go, and conversely hypothetically if the answer is 'no, never' then it would be reinforced but it seems to me he having opened it the Crown is entitled to probe it are they not?
MR McDERMOTT:     Well I can only say Your Honour I maintain my objection for the same reasons.
HIS HONOUR: Yes.
MR McDERMOTT:     I am not going to be seen as agreeing.
HIS HONOUR: Yes, thank you. I will allow the question for the reasons foreshadowed in the exchange just taken place but just take it slowly would you Mr Jacobs.
MR JACOBS: (resuming) Yes, if it please Your Honour. I will repeat that Mr S, had you ever committed adultery before? ... Yes, probably years ago.
Sorry? ... Years ago.
Well I only want to ask about one incident prior to this approximately had you last committed adultery? ... Beg your pardon?
Prior to July last year, when had you previously committed adultery, when had you last committed adultery? ... Years ago.
Well what about in 1989? ... What about 1989.
Had you committed adultery in 1989? ... Beg your pardon?
Had –
HIS HONOUR He's just trying – just a moment, let me intervene we're just trying to find out what you mean when you say years ago, this incident occurred in 1990, so Mr Jacobs is asking you well what about the previous year, does years ago really mean one year ago, and he's asking you whether you committed adultery in 1989? ... No
MR JACOBS: (resuming) Well could the witness be shown that please? Just have a look at that don't say anything."

It is an agreed fact that at that stage counsel for the Crown handed to the appellant a piece of paper upon which was written the name of a person in respect of whom the appellant had been convicted in 1989 of having sexual intercourse with a person under the age of 17 years.

The examination continued:

"HIS HONOUR: I just direct you not to say anything – ? ... Well if he's going to put something like this up Your Honour well then it should be said."

Counsel for the appellant informed this Court that that answer given by the appellant is the "outburst" referred to in ground 2(c). The trial judge then interrupted the appellant and asked the jury to retire. In the absence of the jury discussions took place between counsel and the trial judge during which counsel for the appellant read what was written on the piece of paper. After counsel for the Crown had made it clear that the only question which he proposed asking was to the effect that the appellant had had sex with a female other than his wife in 1989 the learned trial judge ruled as follows:
"It seems to me that the proper course is to allow that question, that question alone, I must say this straight away that as the question doesn't go to a fact in issue or a fact relevant to a fact in issue but only to the credit of this witness, I would be minded to exercise my discretion to exclude it because there's a grave risk that the trial may miscarry, however, it shouldn't miscarry on that alone because I will direct Mr S as I do now to answer that question just yes or No"

When the jury returned the following exchange took place:
"I suggest to you Mr S that you had sexual intercourse with a female other than your wife in 1989? ... I can't remember."

I find it difficult to understand why ground 2 is couched in terms which confine the question to whether the conduct of counsel for the Crown caused a miscarriage of justice. In my view this ground should be determined by considering whether the course of events at the trial which I have set out above caused a miscarriage of justice rather than by a determination of the extent to which counsel for the Crown was responsible for them.

Grounds 2(b) and 2(c)

I reject the submission made by counsel for the appellant that the action of counsel for the Crown in confronting the appellant with the handwritten note might have led the jury to conclude or at least speculate that the appellant had prior convictions. I can see no basis for counsel's submission that the jury would assume that the document which they saw placed before the appellant must have come from a Crown or other "official" record of some kind. All that the jury could have concluded was that something appearing on the piece of paper had something to do with the appellant having had sexual intercourse with someone other than his wife in 1989. There was not the slightest indication of the provenance of the document other than that it was in the custody of counsel for the Crown and there is no justification for concluding that the jury would have thought that the Crown had obtained it from any particular source. Further, even if the jury might have thought that the document came from some Crown or "official" file there is no basis for believing that the jury would for some reason have concluded that therefore the document related to some previous conviction of the appellant.

I do not accept any of the assertions which comprise ground 2(c). There is no basis for concluding that the action of giving the document to the appellant was likely to provoke the response which counsel for the appellant characterised as the "outburst" which I have identified above. The appellant was aware of the identity of the person named in the document and knew that the Crown knew that he had had sexual intercourse with her so there could be no suggestion that it should have been foreseen that the presentation of the document might provoke the appellant into making an involuntary exclamation of shock or surprise. The document did no more than draw the appellant's attention to an event which showed that his denial that he had committed adultery in 1989 was untrue. The action of counsel for the Crown was a common forensic technique which does not usually provoke prejudicial outbursts and there was no reason why counsel for the Crown should have thought that it would do so in this case. There is no basis at all for the submission made by counsel for the appellant that counsel for the Crown took the action he did with the intention of provoking the appellant into some such response. Further, in determining the broad question of whether this incident gave rise to any unfairness or the risk of a miscarriage of justice it is relevant to note that the appellant deliberately chose to make the "outburst" notwithstanding that he had just been expressly directed by the trial judge not to say anything. In any event I am not persuaded that the appellant's exclamation would have unfairly prejudiced the jury against him.

Ground 2(a)

Counsel for the Crown submitted that in the light of changed community attitudes an allegation that a person has committed adultery should no longer be regarded as tending to show that he is of bad character. Whether for the purposes of s85(10) of the Evidence Act 1910 a question put to an accused person in cross examination should be regarded as "tending to establish that ... he is of bad character" cannot be determined by the application of some fixed objective standard. This Court is concerned with the possible effect which a question put to an accused person might have upon a jury in the circumstances of a particular trial so that the issue is not so much whether a question tends to establish that an accused person is of bad character but rather whether it is reasonably possible that a jury in a particular case might regard it as having such an effect. It follows that the fact that eg the law no longer regards adultery as a matrimonial "offence" as it used to be called does not determine the issue – see the observations by the Court of Appeal in Bishop (1974) 59 Cr App R 246 at p248 to the effect that an allegation of homosexual activity was still capable of impugning the character of an accused person notwithstanding that by statute a homosexual act between adult males was no longer an offence. In my view in assessing the effect of the question this court should also take judicial notice of the fact that whilst it is no doubt the case that a significant proportion of the community would regard adultery as morally neutral and so would not regard an allegation of adultery as relevant to their assessment of the character of the person who committed it, another significant proportion of the community would regard adultery as morally wrong and would regard an allegation of adultery as reflecting adversely on the character of a person who committed it. Applying those observations to this case I am not able to exclude the real possibility that at least some members of the jury in this case might have regarded the question of whether the appellant had committed adultery as tending to show that he was of bad character. However be that as it may I have reached the conclusion that the question was not prohibited by s85 of the Evidence Act. The question was relevant to the issue of why the appellant ceased having intercourse when the other car came upon the scene and that issue in turn was relevant to the determination of the issue of whether his conduct showed a consciousness of guilt in the same way eg as would evidence of flight. It may have been evidence of limited probative value because the appellant's conduct could also have been regarded as simply disclosing a disinclination to have intercourse whilst being observed by another person but that is a consideration going to weight not admissibility. In these circumstances even if the question could be characterised as tending to establish that he was of bad character it was not prohibited by s85 of the Evidence Act: Attwood v The Queen (1960) 102 CLR 353.

For completeness I note that the refusal by the learned trial judge to exclude this evidence in the exercise of his discretion has not been made the subject of a ground of appeal. I also note that the submission made by counsel for the appellant at the trial that the trial judge should exclude the evidence in the exercise of his discretion was not supported by any argument and that in any event evidence that the appellant had previously committed adultery could not be regarded as being very damaging when the appellant's own case involved an admission that he had committed adultery with the complainant.

Ground 1

In order to determine this ground this Court is required to make an independent assessment of the evidence for the purpose of considering whether a jury acting reasonably should have entertained a reasonable doubt as to the guilt of the appellant: Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at p534; Morris v The Queen (1987) 163 CLR 454; Chidiac v The Queen (1991) 171 CLR 432.

In this case there was no issue about the age of the complainant or about the allegation that sexual intercourse took place between the appellant and the complainant at about the time and place alleged. The primary question which this court must therefore ask in the circumstances of this case is whether the jury ought to have entertained a reasonable doubt as to whether the complainant consented to sexual intercourse or as to whether the appellant reasonably believed that she was consenting.

A significant aspect of the events leading up to the act of intercourse is the circumstances under which the complainant came to get into the appellant's car in the first place. The complainant's only direct evidence about the matter consisted of her assertions that she was "so scared" by the sound of the appellant's voice that she "ended up getting in the car". She gave no evidence that she was scared of any particular thing and more importantly she gave no evidence of why the sound of the appellant's voice caused her to get in the car as opposed to remaining on the footpath or walking away. At no stage did she say anything to the effect that the appellant did or said anything which she construed as a threat which caused her to get in the car against her will. As I have already indicated the complainant did give evidence about the presence of the knife on the dashboard but in my view the jury would not have been entitled to take that into account when they were considering whether the complainant voluntarily entered the appellant's car. It is important to note that the complainant's reference to the knife was not part of a continuous narrative by the complainant but was prompted by a leading question about whether she saw anything in the vehicle at about the time when the appellant yelled at her. The juxtaposition of the complainant's evidence about the knife and her evidence about why she got into the car was thus only a consequence of the sequence in which counsel for the Crown chose to ask questions of the complainant and the way in which he framed those questions and cannot give rise to any inference that there was any causal or any other connection between the complainant seeing the knife and her reason for getting in the car. An inference that there is some causal connection between two events can sometimes be drawn from their juxtaposition in a witness's evidence when it forms part of the witness's unprompted narrative but not, as was the case in this trial, when it is determined by the way counsel leads the evidence. At no stage in her examination in chief did the complainant say that she was scared or that she got into the car because she had seen the knife. In cross examination it was put to the complainant that the reasons she was scared were that the appellant yelled at her and that she saw a knife on the dashboard but her reply was not responsive – it being confined to a reassertion that the two events occurred at the same time – and the question was not pursued.

In the course of his address to the jury counsel for the Crown made these comments:
"You recall her evidence. He asked her to come for a spin and then he said –, I forget her exact words, but in a demanding, threatening voice 'get in the car'. She saw the knife there."

Counsel also subsequently referred to the knife "that had been so prominent in the vehicle earlier" and made comments in support of his submission that the appellant had thrown the knife away. In the course of his summing up the learned trial judge said:
"Now there's the knife. Of course, there's a primary dispute as to whether it was on the dashboard or not, she said it was in the beginning, he later removed it. He says it was never on the dashboard. But it does seem to be common ground that there was one. The accused says it was in a pouch in the glovebox. It's gone. The Crown say he must have thrown it away and that indicates a guilty mind. The defence say I gather, but you may not agree with me about this, that it must have been taken by the Police or perhaps some stranger. Although in that context I remind you of the Police witness Moore, who said that he secured the car, I think whilst the accused was still up there in Elizabeth Street. Now you may see no significance in this business of the knife one way or the other, as Mr McDermott said to you, it wouldn't be easy to throw it away and why would he throw it away anyway. On the other hand the Crown say that that indicates a guilty mind because he knew that it had been used in this rape and therefore it would be a piece of evidence against him.
Well you will see of course that the knife and its disappearance by itself doesn't prove anything. It doesn't go to the core of the matter. But it's a factor that you can put into your mind when you're considering the core, namely, the evidence of the complainant, and the evidence of the accused."

In my opinion the foregoing statements in counsel's address and in the summing up gave the knife a prominence and significance which could not be justified by the evidence. The evidence does not justify the drawing of any inference that there was a connection between the presence of the knife and the complainant getting into the car or being scared and it does not support the suggestion that the knife "had been used in the rape". There was no evidence from the complainant or anyone else that the presence of the knife frightened her or played any part in her decision to get into the car or caused her to submit to intercourse against her will and in the circumstances of this case it would not have been open to the jury to have drawn inferences to that effect. Some rational basis must exist before such an inference can be drawn but in this case bearing in mind that it was not the complainant but counsel who was responsible for the juxtaposition of the evidence relating to the knife and the evidence relating to the complainant being scared, that the inference related to a matter about which explicit questions could have been asked of the complainant but were not and that there was no other evidence at all supporting it, I am of the view that the jury could not reasonably have drawn the inference that the knife caused or contributed to her will being overborne either at the telephone box or on the Domain. In summary therefore I have reached the conclusion that there was no evidence upon which it would have been open to the jury to find that the complainant was frightened by the knife or that the presence of the knife played any part in her decision to get into the car or to submit to intercourse. It follows of course that the evidence and comments about the appellant throwing the knife away have little or no weight either as their significance depends upon it being shown that the knife had some connection with the rape in the first place.

There is no ground of appeal that the jury might have been misled or misdirected by the references to the knife in the address by counsel for the Crown or in the summing up but the conclusion I have reached is relevant to my determination of whether the verdict was unsafe or unsatisfactory.

There is no doubt that there was evidence before the jury upon which it would have been lawfully open to the jury to convict the appellant but in evaluating the case against the appellant I take into account the following:

1At no stage did the complainant give any explicit evidence that the appellant had physically overpowered her or that she was forced to submit to intercourse because of the words or conduct of the appellant. The complainant expressly agreed that at no stage did the appellant threaten her.
2Much of the complainant's evidence in chief was elicited by leading questions including in particular the leading rolled up question to which I have already referred which elicited her first indication that she had not consented to intercourse.
3Once one excludes or at least substantially discounts the significance of the evidence of the knife the evidence we are left with does not provide any convincing explanation of why the complainant got into the appellant's motor vehicle in the first place.
4There was little corroboration of the complainant's evidence.

By themselves the foregoing considerations would not be such as to persuade me that the verdict was unsafe or unsatisfactory. However after considering their cumulative effect taken in conjunction with the real risk that for the reasons I have given the jury might have given the evidence of the knife more weight than it deserved I am satisfied that the appellant's conviction should be regarded as unsafe and unsatisfactory and that it ought to be quashed.

As the reason for my concluding that the conviction ought to be quashed is derived in part from my views about the course which the trial took rather than from any firm conclusion that the case against the appellant is inherently weak or unsound, in which latter event I would have been inclined not to order that the appellant be retried, I have reached the conclusion that the proper order is that the appellant be retried upon this indictment.
File No CCA 49/1991

M P S v THE QUEEN

REASONS FOR JUDGMENT CRAWFORD J

12 November 1991

Ground 1 –

Unsafe or Unsatisfactory Verdict

The first ground of appeal is that the conviction for rape is unsafe, unjust and unsatisfactory. This Court should uphold the ground if it concludes that the jury, acting reasonably, should have entertained a reasonable doubt as to the guilt of the accused so as to entitle him to an acquittal. The question requires this Court to undertake an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to guilt. That function is not discharged merely by a consideration of whether there was a sufficiency of evidence to sustain a conviction, Chamberlain v The Queen(No 2) (1984) 153 CLR 521; Morris v The Queen (1987) 163 CLR 454; Chidiac v The Queen (1991) 171 CLR 432.

If the evidence of the complainant is to be believed, she was raped by the appellant. The appellant's evidence was that she consented to the act of intercourse following mutual kissing and fondling by him of her breasts. It is therefore immediately apparent that the credibility and reliability of the oral testimony of the complainant and the appellant were critical factors at the trial. The logical conclusion from the verdict is that the jury were so convinced by the complainant's evidence and so unconvinced by the appellant's evidence to the extent that they had no reasonable doubt concerning guilt. In his summing up to the jury the learned trial judge referred to "this massive conflict between them" and he confirmed what the appellant's counsel had said to the jury, that it was not the task of the jury to decide which of the two witnesses were to be believed, but whether "at the end of the day" there was a reasonable doubt about who was telling the truth and, if there was, the jury's duty was to acquit. He further explained:

"Now what I want to say to you though in this context is, it seems to me, that you could not convict the accused of rape, as opposed to the alternative (to) rape, unless you are satisfied beyond reasonable doubt, that the complainant was telling you in substance the truth about her not consenting, about her crying, and about her shaking and so on. In other words, I ask you rhetorically how could you be satisfied of this accused's guilt unless you are satisfied beyond reasonable doubt that the girl's story, in substance, not in every single detail, but in essence was true. Because there's no other evidence, is there. There's no film of what went on up there on the Domain, there's no witness who came forward to say that I saw it, and so it seems to me that you cannot convict this accused of rape unless you are satisfied beyond reasonable doubt, that in substance, the girl's complaint is true."

I will deal first with the complainant's evidence. She was 16 at the time. She had spent the evening at the flat of some friends in Elizabeth Street where she consumed beer and a mixture of rum and coke. At about 10pm she went to a nearby telephone box on the corner of Elizabeth Street and Brisbane Street. While coming out of the box she noticed the appellant's car coming along Brisbane Street from the direction of the Domain. It crossed the intersection, executed a U–turn and parked two or three metres back from the telephone box. The appellant got out and said to her, "Come for a spin". She said, "No". He then yelled at her, "Get in the car", and the effect of his voice was that it scared her. She was so scared that she complied with the demand and got into the car. What she was frightened might happen was not asked of her. Because of a question from counsel for the Crown she said that she saw on the dash–board a knife about 20 centimetres long, but she gave no evidence–in–chief concerning whether her seeing it contributed to her being scared. In cross–examination, she said that she saw the knife at about the same time as the appellant yelled at her but she was not certain. She was also asked whether her reasons for being, "scared were because he yelled, "Get in the car and you saw a knife on the dash–board, is that correct?" Her answer was, "At the same time he said 'Get in the car'". Her answer was therefore not responsive and the part that the knife played, if any, in causing her to unwillingly get in to the car was not clearly established.

In cross–examination she was not sure how far she was from the car when the appellant yelled at her, she did not know if she had to walk some distance to get into it and she was not sure whether she opened the car door. There was nothing in her evidence to suggest that the appellant walked towards her or that he acted in any threatening manner other than might be inferred from his yelling, "Get in the car". It seems surprising that she would have complied so readily, but of course her age must be taken into account and there may have been something in her personality and emotional state which rendered her more submissive than might have been expected with most similarly placed women.

The appellant then drove to the Domain and parked. The complainant admitted that on the way she told him that she had just come back from Melbourne. She said that she was scared of what he was going to do and by the time the car stopped she was shaking and crying. When the car had stopped the appellant got some marihuana out of the glove box and told her, "to roll a joint". He gave her cigarette papers and she rolled it having had experience with rolling cigarettes before. She said that she was shaking and spilled some of it onto the seat, her legs and the floor. The appellant smoked it and told her, "to have a drag" which she did. After he finished it he said, "What do you think about sex"? She said, "I'm not interested". He then put his hand under her top clothing and touched her "chest", his hand remaining there for "probably about 2, 3, 5 minutes". She was telling him to leave her alone and to take her back. She was crying. She was not sure whether her body was still or moving, nor whether his hand stayed still on her chest or whether he moved it around. Next, the appellant moved the back of her seat down until it rested on the seat behind. He undid his trousers and undid her jeans and pulled them down to about knee height. She was continuing to cry. Because of her fear she could not remember if he pulled her jeans down gently or by tearing them down vigorously. She could not remember if she lifted her bottom off the seat, "because I was that scared". She could not remember whether he had any difficulty pulling them off. In fact, she said she was "blank" and "can't remember what happened because I was that scared". She said that he climbed over across her and began to have intercourse, using his hand to enter her. After doing so he said something like, "Does that feel good?" to which she replied, "No, just take me back, get off me". He was moving up and down on top of her and penetration continued for about 5 minutes. She was crying and shaking. She was pushing him at about his shoulders as she was lying back on the seat which was as far back as it would go.

The appellant did not ejaculate. When he withdrew from her she, according to her evidence, got out of the car and pretended to be sick at the rear. She said that she noted the number plate of the car and while at the back of it the appellant got out and came to her and asked whether she was alright. She said that she had been thinking of running away but did not because she was too scared of what might happen. The appellant then drove her back to near the telephone box and dropped her off. Before she got out she agreed to meet him the next day outside a shop referred to in evidence as "Gelati". She agreed to that rather than cause him to think that she intended to contact the police. Her friend's flat was behind the Gelati shop. She was not asked in evidence how that shop came to be identified as the proposed meeting place. After getting out she looked at the rear of the car again and noticed that it was a Chrysler and she once again checked the number plate so that she would not forget it. She then ran to her friend's flat half a block away where she complained of having been raped and stated the make and number plate of the car. This was confirmed by the evidence of one of the occupants of the flat. The police were called. In answer to leading questions from counsel for the Crown she gave evidence that at no stage did she consent to intercourse and did nothing to suggest to the appellant that she was agreeable to it.

The complainant gave no evidence of a violent struggle and it is apparent that there was not one. Her clothing was not damaged. She did not suffer any bruises, scratches or other visible signs of force having been used against her although there was evidence from a doctor, which did not establish anything conclusive, of a minor abrasion in the vaginal area. It was not inconsistent with the appellant's version of the events. However, when the police saw her shortly after, she was crying, very upset and distressed.

Police officers were alerted to look out for the appellant's vehicle and about 1½ hours after the complainant left him, police officers driving in Elizabeth Street came upon the appellant's vehicle driving in the opposite direction. The officers' vehicle performed a U turn and came up behind the appellant's car which then pulled over near a service station. 1st Class Constable Herbert walked up to the driver's door of the appellant's vehicle and asked him to come back to the police vehicle without saying why. According to that officer's evidence, as they got back to the police vehicle the appellant ran up the footpath away from the police car with the officer in pursuit. After only about 20 metres, the officer got in front of the appellant and he came to a standstill. They then returned to the police car. The other police officer at the scene, 1st Class Constable Badcock, said that when 1st Class Constable Herbert and the appellant were between the police vehicle and the appellant's vehicle, the appellant turned and walked back towards his vehicle and then ran off up the street with 1st Class Constable Herbert in pursuit.

The appellant was interviewed by detectives having first obtained advice from a solicitor and he declined to say anything, which was his right. However, two detectives gave evidence of a brief conversation with the appellant in a lane–way shortly afterwards, when they were making their way with him to the watch–house at the rear. Their evidence was that the appellant was told that he would be charged and that he said, "Why, I never raped anyone, I never had anyone in my car". Detective Senior Constable Barber then responded by saying that he had not denied the allegation during the interview and the police only had the complainant's side of the story and prima facie it was a case against him. The appellant then said, "I never fucked her, I don't even know her".

The evidence of police was that a search of the appellant's car revealed traces of marihuana on the front floor where the complainant had been sitting but no knife.

I next turn to the evidence of the appellant, who called no other witnesses. He said that he was driving in the opposite direction to that described by the complainant, that is to say, along Brisbane Street towards the Domain and pulled up at the traffic lights at the intersection of Elizabeth Street. The complainant came out of the telephone box alongside him and said something to him which caused him to wind down his window. She asked where he was going. She had a beer glass full of rum and coke and asked if he wanted some and passed it in to him. She asked where he was going and he said to the Empire Hotel. She said she would like a ride there. He opened the door without getting out and she climbed in. As they drove off along Brisbane Street she asked if he smoked, apparently referring to marihuana. It so happened that the appellant had just purchased a full pack of marihuana and he said she could have one if she wanted it. So, he said, they decided to drive to the Domain to smoke it. He maintained that he made no threats or demands of the complainant and that the knife was in the glove–box where it would later have been seen by the complainant. He used the knife for the purposes of tree surgery.

The evidence of the appellant was that at the Domain the complainant said that she would roll a joint. She got the tissues from the glove–box and rolled it. There was a conversation about a teddy bear in the glove–box. They shared the joint between them. He thought that sex play commenced by them holding hands although he also said that he could not remember how it started. They kissed with her kissing him back. He played with her breasts from outside and underneath her clothing. She then took her jeans right off. He took his trousers down but not completely off. She inclined her seat and he did likewise with his. He then had intercourse with her. He was on top. She made no objection and did not attempt to push him off. Intercourse lasted for about 5 to 8 minutes but he withdrew without ejaculating. He was asked why he ceased and he said, "Well, when I was having intercourse it was just after we'd smoked this joint and I got a real complex about you know having sex with another woman bar my wife and if anybody smoked dope they'd understand it, it can give you that effect". In the course of cross–examination he was asked whether or not he had committed adultery before and the obvious interpretation of his answers was that he was being evasive, even untruthful.

The appellant's evidence was that after intercourse had ended the complainant put her clothes on and lifted up the back of her seat. They sat there and each smoked an Ascot cigarette provided by the appellant. She got out, apparently to relieve herself and he heard her coughing outside. She then got back in and he drove her back to near where he picked her up. He gave evidence about a desire expressed by her to drive the car and his refusal to permit her to do so. He said that she mentioned once having been in trouble with the police over stealing a car, or something to that effect and this evidence has the ring of truth about it, particularly because the complainant admitted in her evidence that there had been some trouble over the driving of a car, although she said it was to do with her sister. She maintained that she had made no mention of it to the appellant. He said that when he got to the Empire Hotel she asked to be dropped off at the Gelati shop, and when they reached there she asked him to drop her off at the telephone box where he picked her up. He did so. He gave her a kiss and she got out. As he was about to drive off she called out and he stopped. She said that she had forgotten her glass and he picked it up from the floor and passed it out to her. He then drove off.

His evidence of what occurred when the police intercepted him was that he was driving up Elizabeth Street and coincidentally pulled in at the service station because his vehicle was almost out of petrol. When he realized that a police officer was coming to his vehicle he took a bag of marihuana out of the centre console and put it in his pocket. When walking back to the police vehicle he realized that he had to be rid of it and so he walked away "very fast" but did not run and dropped the bag (unseen by the pursuing officer it would seem) so that it would not be found in his possession. He then voluntarily stopped and returned to the police vehicle. He entirely disputed the words attributed to him in the lane–way on the way to the watch–house. He maintained that his knife was still in the glove–box of the vehicle when he went with the police.

The strongest argument that the verdict should be considered to be unsafe and unsatisfactory is that the complainant's evidence reveals submission by her to the wishes of the appellant and almost no physical resistance. Her explanation for getting into his car was not satisfactorily explained. Once at the Domain she did nothing physically to resist his advances nor the act of intercourse, apart from pushing at about his shoulders during the act of intercourse. This submission and virtual lack of physical resistance was a matter for consideration by the jury. So too was her apparent inability to remember many matters of detail. But it does not necessarily follow that a reasonable jury should have acquitted on that basis. There was ample evidence from the complainant that she was not consenting and that that should have been obvious to the appellant. Not having the advantage of hearing the witnesses and of being able to assess their credibility and reliability with that advantage, I am unpersuaded that the jury should have acquitted and that this ground of appeal should succeed.

The vagueness of the complainant's evidence concerning the knife and its affect on her as one of the reasons for her complying with the appellant's demand to get into the car does not persuade me that the verdict was unsafe and unsatisfactory nor that there was a miscarriage of justice because of it. The appellant's counsel put to the complainant that the presence of the knife was one of the reasons why she was scared. In print her answer seems inconclusive. The appellant's counsel did not pursue the matter. It was for him to decide whether he did so or not. I suspect that there was something in the manner the questions were asked and in the manner of the complainant's answers that left the impression that she gave the knife as part of her reasons for being scared and that the appellant's counsel chose not to pursue the matter. It was his choice not to do so and I am unable to conclude that the appeal should succeed because that piece of evidence appears to be inconclusive. In their closing addresses to the jury both counsel referred to the knife. The learned trial judge did also in his summing up and suggested to the jury that, "you may see no significance in this business of the knife one way or the other" and that it and its disappearance "doesn't prove anything. It doesn't go to the core of the matter. But it's a factor that you can put into your mind when you're considering the core, namely, the evidence of the complainant, and the evidence of the accused".

Ground 2

As part of the case for the Crown, Detective Senior Constable Barber was asked in examination–in–chief about evidence he had heard given by the appellant in an earlier trial (in which the jury could not agree on its verdict on the same rape charge). The following passage of evidence occurred:

"QTell us what he said as to whether (he) did or did not have sexual intercourse with" the complainant.
AHe said that he did have sexual intercourse in his car with" the complainant. "He said that he did not ejaculate.
QDid he say anything as to the reason that sexual intercourse ceased?
AHe told the court that he ceased having intercourse because he developed a guilt complex about cheating on his wife."

In cross–examination he agreed that the appellant's evidence had been, "Well, I think the marihuana was taking effect on me and I got a real guilt complex about cheating on my wife."

In his evidence–in–chief at the trial from which this appeal has been brought, the appellant gave evidence that intercourse lasted for, "about five – eight minutes something like that" and that he did not ejaculate. The following question and answer were given:

"QHow did you come to cease having intercourse?
AWell when I was having intercourse it was just after we'd smoked this joint and got a real complex about you know having sex with another woman bar my wife and if anybody smoked dope they'd understand it, it can give you that effect."

The Chief Justice has set out in his judgment the detail of what occurred in the course of the appellant's cross–examination.

That the smoking of marihuana might assist the creation of a guilt complex in the appellant concerning the commission of adultery by him is beside the point. He claimed that he decided to stop the act of intercourse because of his feeling of guilt about committing adultery. Under cross–examination Crown counsel asked him questions which sought to ascertain whether he had committed adultery before. If he had, his evidence that he had a guilt complex about it on this occasion and that it caused him to stop intercourse might be suspected of being false and his credit would have been affected.

Ground 2 of the appeal is in the following terms:

"THAT a miscarriage of justice has occurred by virtue of the actions of the Crown Prosecutor in that he:
(a)Cross–examined the Accused as to bad character (adultery) when no basis for such cross–examination had every been established;
(b)Wrongly used a name on a written note, handed to the Accused, who was then under cross–examination, in that the name was that of a person in respect of whom the accused had been convicted of a crime and sentenced to imprisonment;
(c)Acting in a manner calculated to unfairly cause the Accused to make an outburst in open court in the presence of the Jury, such outburst being intended to prejudice the said Jury against the Accused."

To ask questions of a person about whether he had committed adultery is to ask questions tending to show that he is of bad character. A substantial section of the community would be of this view. However if, as I think they did, the questions asked of the appellant in cross–examination tended to show that he was of bad character it can conversely be said that by giving evidence of his guilt complex about being unfaithful to his wife he gave evidence of his own good character. This is so notwithstanding that in the light of his own admission of adultery on this occasion the quality of the goodness of his character may not have been very high. Therefore, it might be argued that he having given the evidence, Crown counsel was entitled to pursue this line of questioning because of the rule permitting it in the Evidence Act 1910, s85(10)(b). But whether this is correct is unnecessary to decide, because in any event the cross–examination went to a relevant fact, that being what caused him to stop the act of intercourse, and not simply to bad character and was permissible. It did not contravene s85(10) in the circumstances. Attwood v R. (1960) 102 CLR 353. Ground 2(a) therefore fails.

There was nothing improper in Crown counsel writing on a piece of paper the name of a young woman in respect of whom the appellant had previously been convicted of having sexual intercourse with a person under the age of 17 years in 1989, handing that paper to the appellant and then asking him whether he had committed adultery in 1989. The circumstances were that he had said that he had not committed adultery in that year. It was a practical and fair method of pursuing the matter without disclosing the prior conviction of the appellant to the jury. I find the submission that the conduct of counsel for the Crown would have led the jury to conclude that the appellant had previously been convicted of an offence involving unlawful sexual intercourse as having no merit. So far as the so called "outburst" is concerned, it arose because of the attitude of the appellant and was made by him directly contrary to the direction of the trial judge to say nothing. He has only himself to blame. I find the claim that Crown counsel acted, "in a manner calculated to unfairly cause the Accused to make an outburst in open Court in the presence of the Jury, such outburst being intended to prejudice the said Jury against the Accused" as nothing more than fanciful. Grounds 2(b) and (c) also fail. No miscarriage of justice occurred for any of the reasons contained in ground 2.

I would dismiss the appeal.
File No CCA 49/1991

M P S v THE QUEEN

REASONS FOR JUDGMENT ZEEMAN J

12 November 1991

The appellant has appealed against his conviction for rape. The grounds of appeal are expressed in the following terms:

"1THAT the Applicant's conviction for Rape is unsafe, unjust and unsatisfactory.
2THAT a miscarriage of justice has occurred by virtue of the actions of the Crown Prosecutor in that he:
(a)Cross–examined the Accused as to bad character (adultery) when no basis for such cross–examination had ever been established;
(b)Wrongly used a name on a written note, handed to the Accused, who was then under cross–examination, in that the name was that of a person in respect of whom the accused had been convicted of a crime and sentenced to imprisonment;
(c)Acting in a manner calculated to unfairly cause the Accused to make an outburst in open court in the presence of the Jury, such outburst being intended to prejudice the said Jury against the Accused."

It is convenient to consider ground 2 first, and for that purpose it is necessary to outline the nature of the Crown case as it was put before the jury. The evidence of the complainant was that at about 10.00pm on 20 July 1990, having earlier spent some time with friends at a flat occupied by one of them consuming intoxicating liquor, she went to use a public telephone situate at the corner of Brisbane and Elizabeth Streets, Hobart. Having unsuccessfully attempted to make a telephone call she left the telephone booth. At about that time, the accused, who was driving a motor car, brought his vehicle to a stop nearby. He got out of the car and suggested to the complainant that she "come for a spin". Initially the complainant declined, but the appellant yelled at her to get into the car. She said that his voice frightened her, and she entered the car. The appellant drove her to the Glebe where the appellant produced some marihuana and cigarette papers. The complainant rolled a marihuana cigarette at the appellant's request. Each smoked some of it, in the complainant's case after the appellant had told her to have a "drag". The appellant then said to the complainant, "What do you think about sex?", to which she replied, "I am not interested". The complainant then related what followed, culminating in the appellant having sexual intercourse with her, although not involving ejaculation on the part of the appellant. The complainant did not give any express evidence as to anything which led to the appellant withdrawing without having ejaculated. The nearest she got to giving such evidence appears from the following:

"Q... Right, after some time did another vehicle enter the area?
AYes.
QAnd when that vehicle came near by did physical contact between Mr S and yourself cease?
AYes."

One of the investigating officers, Det Snr Const Barber, gave evidence. In the course of his evidence–in–chief, he was asked about evidence given by the appellant in his presence during the course of an earlier trial of the appellant for the same crime, which, it was common ground, had resulted in the jury being discharged without having been able to agree upon a verdict. Det Snr Const Barber gave the following evidence:

"QCan you tell us what he said in that evidence as to the presence of a knife or otherwise in his vehicle that evening?
AWhilst giving evidence the accused stated in court that he had had a knife in his vehicle.
QTell us what he said as to whether [he] did or did not have sexual intercourse with [the complainant]?
AHe said that he did have sexual intercourse in his car with [the complainant]. He said that he did not ejaculate.
QDid he say anything as to the reason that sexual intercourse ceased?
AHe told the court that he ceased having intercourse because he developed a guilt complex about cheating on his wife."

The Crown was, of course, entitled to lead evidence that the appellant had, on an earlier occasion, admitted to having had sexual intercourse with the complainant on the occasion the subject of the charge. As part of seeking to prove that, the surrounding circumstances, and in particular the appellant's explanation as to why he had ceased the act of sexual intercourse, could be led. Had the matter been left there, then any cross–examination of the appellant as to prior acts of adultery might have been quite inappropriate. However, the matter was not left there.

The appellant gave evidence. During the course of his examination–in–chief, he was asked as to how he came to cease having intercourse. To that he made the following reply:

"AWell when I was having intercourse it was just after we'd smoked this joint and I got a real complex about you know having sex with another woman bar my wife and if anybody smoked dope they'd understand it, it can give you that effect."

The appellant having given that explanation, the Crown was entitled to test it. Quite apart from anything else, if the Crown, through cross–examination, established that the explanation given by the appellant for withdrawing prior to ejaculation was untruthful, that in itself could have been taken by the jury as adversely affecting the credibility of the appellant. The respondent submitted that further use could be made of cross–examination on this issue, in that if the jury concluded that the appellant had been untruthful in his explanation, they could conclude that the true explanation was that the appellant ceased having sexual intercourse because he became aware of the presence of another motor vehicle in the area. It was submitted that such a conclusion could lead to an inference that the appellant was then well aware of the relevant criminal nature of his conduct. I do not consider that the jury could have used the evidence in this way. If there was a cessation of sexual intercourse by reason of the intrusion of another motor vehicle and its occupant or occupants it might well have been the case that the appellant did not desire to be found by such occupant or occupants in the act of sexual intercourse, whether or not that act of intercourse was of a criminal character. In any event, the necessary factual basis for drawing the inference that sexual intercourse ceased by reason of the arrival of another motor vehicle did not exist. The complainant did no more than fix the time when "physical contact" ceased by reference to the arrival of another motor vehicle. Nothing she said could lead to the conclusion that that arrival was in itself causative of the cessation of intercourse. It may well have ceased at an earlier time. Physical contact could not have been equated with sexual intercourse. The relevant evidence of the complainant and the appellant was not inconsistent. There was nothing inconsistent between the complainant fixing the time of cessation of physical contact (whatever that meant) by reference to the arrival of another motor vehicle, and the appellant giving as the reason for the cessation of intercourse the reason which he provided to the jury. Nevertheless, for the reasons I have expressed, the explanation for cessation of intercourse given by the appellant to the jury remained a proper subject to be tested in cross–examination as it went to the matter of the credit of the appellant generally. In addition the appellant's stated reason for ceasing the act of intercourse could have been taken as being exculpatory so that it went to a relevant issue.

Counsel for the Crown sought to attack the explanation at the commencement of his cross–examination of the appellant. The following exchanges occurred:

"QMr S how long had you been married at the time of this incident?
AHow long had I been married?
QYes?
ASeven years.
QHad you ever committed adultery before?"

(At this stage an objection was made, but over–ruled).
"Q... I will repeat that Mr S, had you ever committed adultery before?
AYes, probably years ago.
QSorry?
AYears ago.
QWell I only want to ask about one incident prior to this approximately had you last committed adultery?
ABeg your pardon?
QPrior to July last year, when had you previously committed adultery, when had you last committed adultery?
AYears ago.
QWell what about in 1989?
AWhat about 1989.
QHad you committed adultery in 1989?
ABeg your pardon?
QHad –
His Honour:     He's just trying – just a moment, let me intervene we're just trying to find out what you mean when you say years ago, this incident occurred in 1990, so Mr Jacobs is asking you well what about the previous year, does years ago really mean one year ago, and he's asking you whether you committed adultery in 1989?
ANo
QWell could the witness be shown that please? Just have a look at that don't say anything.
His Honour:     I just direct you not to say anything – ?
AWell if he's going to put something like this up Your Honour well then it should be said.
His Honour:     Look – excuse me – excuse me?
AI am sorry Your Honour."

At this stage the jury retired and the learned trial judge raised with counsel certain risks associated with the line of cross–examination, it being common ground that the appellant previously had been convicted of having had unlawful sexual intercourse with a female under the age of 17 years in 1989. The learned trial judge determined to allow the question, indicating that he would direct the appellant to answer it either "Yes" or "No", undoubtedly so as to obviate the risk of the appellant's prior conviction being disclosed to the jury. Upon the jury returning, learned counsel for the Crown suggested to the appellant that he had had sexual intercourse with a female other than his wife in 1989. The appellant's answer to that was, "I can't remember". Counsel for the Crown then said to the appellant, "Is that the best you can do for us?", but the learned trial judge intervened and the question was not answered nor was the matter referred to again during the balance of the cross–examination of the appellant.

In the absence of any particular statutory provision or other evidentiary rule or principle having relevance to the matter, cross–examination of the appellant as to whether or not he had on a previous occasion (at least during the course of his marriage to his then wife) committed adultery, went to the issue of credit generally and specifically to the truthfulness of his explanation for ceasing intercourse. However, it was submitted for the appellant that the questions should not have been allowed by virtue of the provisions of s85(10) of the Evidence Act 1910 in that the questions tended to establish that the appellant was of bad character and that none of the provisions of paras(a), (b), (c) and (d) of that subsection applied so as to make the questioning permissible. Some suggestion was made during argument that before a question of the type referred to in s85(10) may be asked, some order, direction or ruling needs to be obtained from the trial judge. I do not consider that to be correct. The section precludes the asking of questions of a certain type of an accused person during cross–examination, except in four defined circumstances. Whether such a question may be asked in any particular case depends upon whether one or more of the four defined circumstances exist. Such questions are in no different category from any other question asked of any witness during the course of a criminal trial. It is the duty of a trial judge to ensure that a criminal trial is conducted according to law and inter alia that requires that a trial judge ensures that only admissible evidence is placed before the jury. A ruling on the part of a trial judge that a question of the type referred to in s85(10) may be asked is no different from any other ruling during the course of a trial as to the admissibility of evidence. The subsection is not concerned with the exercise of any discretion. It does not refer to or confer any discretion. It deals with particular types of questions during the course of the cross–examination of an accused person and defines when they may be and when they may not be asked. Consequentially, the subsection deals with the admissibility of evidence. If in the terms of the subsection the question is permissible then, prima facie, it may be asked. No order of the trial judge is required for that purpose. That is not to say that where s85(10) does not operate so as to make impermissible the asking of a particular question a trial judge does not retain the general residual discretionary power to exclude evidence which is strictly admissible. Clearly a trial judge has such a discretion which is to be exercised on now well–established principles and applies to all evidence sought to be adduced by the Crown in a criminal trial.

I consider that what I have said is in accord with what Cosgrove J said in Harris v The Queen [1988] Tas R 31, at pp36–37:
"The other matter which I wish to mention is the Evidence Act 1910, s85, and the common law discretion which a trial judge has to exclude character evidence. It was submitted by counsel for the appellant that this was a discretion to permit the introduction of such evidence. The difference in the manner of describing the discretion would, perhaps, be immaterial, were it not for the fact that it is used as a basis for the suggestion that the prosecution, having successfully proved the requirements imposed by the section, has yet another hurdle to surmount before the evidence may be introduced.
The submission was based on Phillips v The Queen (1985) 62 ALR 479,60 ALJR 76, in particular some verbal expressions in the majority judgment and an outright statement in the dissenting judgment of Deane J. The statute under consideration in that case differs from the Tasmanian statute in that it specifically provides that the permission of the trial judge to introduce character evidence must be obtained. That is, however, hardly a sufficient ground for distinguishing the case, as such permission must, as a matter of understood procedure, be obtained in this State. It does, however, serve to explain why the justices in the majority spoke of a 'discretion of a trial judge to permit'.
But it is clear that those justices did not by that expression intend in any way to support a limitation of the general nature of the discretion, as their approving references to Reg v Selvey [1970] AC 304 show. It needs only a little thought to see that the discretion cannot be used to permit the introduction of inadmissible evidence, and that there is no statutory or other warrant for the imposition of any further obstacle to admissibility than the conditions imposed by the section. The discretion to be exercised is that described by Viscount Dilhorne in Reg v Selvey (supra, at pp 340, 341) ie to exclude otherwise admissible evidence or disallow otherwise permissible cross–examination in the interest of securing a fair trial. This power of exclusion is exercised generally and is not confined to character evidence."
Nevertheless, I should hasten to add that nothing I have said ought to be construed as suggesting any alteration to what I understand to be the current practice whereby questions of the type referred to in s85(10) generally are not asked until the matter has been raised with the trial judge in the absence of the jury. That is a sensible course, as it enables the trial judge to consider the admissibility of the evidence in the terms of the subsection and enables an accused person to invoke the discretion to exclude the evidence if he is minded to do so. That practice is one which obviates the risk of a trial miscarrying.

It is essential to the first part of the second ground of appeal that in fact the questions relating to the issue of prior adultery were questions which may be characterised as tending to establish that the appellant was of bad character. If the questions cannot be so categorized, then s85(10) has no application and ground 2(a) must fail. In saying that, I should say that I do not consider that there is any merit in the submission made for the appellant that the cross–examination was in any event unfair because the questions as to prior acts of adultery did not relate to occasions when the appellant had smoked marihuana. The question must be asked as to what is bad character within the meaning of the subsection. Some consideration was given to the meaning of that expression, as it appeared in a corresponding provision contained in the Crimes Act 1958 (Vic), in Attwood v The Queen (1960) 102 CLR 353, at pp360–361, as follows:

"... The words 'bad character' although possessing no technical meaning are apt to describe a head of exclusion already known and understood. At common law no motives of policy or humanity or fairness excluded the proof of facts and circumstances forming the parts and details of the transaction and the incidents or matters tending to explain, identify or lead up to the occurrences forming the subject of the issue, in short what we commonly embrace under the term 'relevant facts'; it did not exclude such evidence notwithstanding that it might disclose acts or conduct on the part of an accused person which would be considered inconsistent with good character."

I do not consider that in today's society evidence that a person has committed adultery would necessarily be considered inconsistent with that person being of good character. However, counsel for the appellant submitted that in the particular circumstances of this case, the suggestion that the appellant had previously committed adultery amounted to a suggestion that he was a person of bad character. He submitted that evidence that for a mature man to have sexual intercourse with a young girl whom he had not met before was evidence of bad character, and any suggestion that he had previously committed adultery amounted to a suggestion that he had had previous "flings" of similar character to the act of intercourse the subject of the indictment. He submitted that a married man who made a habit of having sexual dalliances without emotion, feeling or commitment and with no concern about the risk of pregnancy would be considered to be a person of bad character. He submitted that the impact of the questions was such as to suggest that the appellant was a womaniser or a man who preyed on women for mere sexual gratification. Whilst it might well be said that a man engaging in the types of conduct referred to by counsel might be categorised as a person of bad character, I do not consider that such a submission assists the appellant in this case. None of the questions were directed to the age of any person with whom the appellant might have committed adultery, nor were they directed to any of the surrounding circumstances of the type referred to by counsel as making an act of adultery one which is indicative of bad character. Whilst the act of sexual intercourse the subject of the charge against the appellant might be thought to have all the characteristics referred to by counsel, it does not follow that any previous act of adultery would have had any of the same characteristics. The questions asked did not suggest that that was so. They were directed to the commission of adultery simpliciter so that no necessary connotation of bad character was involved. It is not permissible to impute to the questions going to prior adultery a suggestion of adultery in circumstances similar to the circumstances surrounding the appellant's admitted act of sexual intercourse with the complainant. In my view, the cross–examination of the appellant could not be categorised as cross–examination "as to bad character" as suggested in the notice of appeal. The questions did not fall within the ambit of s85(10) of the Evidence Act. They were perfectly permissible. In any event as the questions went to a relevant fact, i.e. why did the appellant cease the act of intercourse, s85(10) did not operate so as to prohibit the questioning even if it tended to establish that the appellant was of bad character.

Ground 2(b) may be dealt with quite briefly. It is common ground that during the course of cross–examining the appellant, counsel for the Crown, in the presence of the jury, wrote a name upon a piece of paper and that it was that piece of paper, containing that name and nothing else, which was shown to the appellant. In taking that step, counsel was adopting a perfectly normal and proper course by way of prompting the memory of the appellant. The fact that the appellant had been convicted of committing a crime of a sexual nature upon the person whose name was written on the note was not known to the jury. It can not be suggested that the action of showing the appellant the note would have carried with it the suggestion that what had been written on the note was the product of some records held by the Crown or of some record of criminal convictions.

Ground 2(c) also may be dealt with quite briefly. The "outburst" referred to was the statement by the accused, "Well, if he's going to put something like this up Your Honour well then it should be said", which was made in the context set out earlier in these reasons. Whether it could be described as an outburst is questionable, but in any event the appellant had been told not to say anything about the piece of paper. Nevertheless the appellant said something. In my view, he was not provoked in any way at all. There was nothing in the conduct of counsel for the Crown which provoked the appellant. In any event, I do not consider that the appellant's statement could be said to have been such as to prejudice the jury against him.

I now turn to the first ground of appeal. I have had the advantage of reading the reasons for judgment prepared by Crawford J and agree with his Honour's summary of the evidence before the jury and his conclusion that upon the basis of that evidence the jury's verdict cannot be said to be unsafe or unsatisfactory. However I wish to add some observations as to specific submissions made by the appellant in support of this ground. Three principal matters were addressed in the course of submissions that the jury's verdict was unsafe. Those matters were the following:

(a)the matters more specifically the subject of ground 2;
(b)what was said to be the inherent improbability of the complainant's version of the relevant events; and
(c)matters relating to evidence of the presence of a knife in the appellant's motor vehicle at the time that the complainant entered it and its subsequent disposition.

I do not need further to consider the first of those matters. As to the second of those matters, it was particularised in the appellant's written submissions in the following terms:

"... the inherent improbability of the complainant's version renders his conviction for rape unsafe and unsatisfactory in that:–
(a)the complainant, then a 16 year old girl and a complete stranger to the Appellant got into his vehicle at about 10 pm at night in a Hobart city street;
(b)the complainant, having admitted consuming a small sized bottle of rum and 3 or 4 stubbies of beer, smoked marijuana with the Appellant in his small Sigma sedan, before any sexual activity occurred;
(c)the complainant had claimed that she had been subjected to non–consenting sexual intercourse twice in the small car – once where she was on top of the Appellant. (The Appellant was acquited (sic) of the second alleged rape in the first trial).
(d)the inherent improbability of the Appellant being able to remove the complainant's jeans, without her consent, while she was seated in the front seat of the Appellant's Sigma sedan.
(e)the fact that the complainant sat in the Appellant's car and smoked a cigarette with the Appellant after she had allegedly been raped twice (page 49 of the transcript).
(f)The fact that were no clinical signs on examination inconsistent with consensual sex and no damage to clothing in respect of the complaint (sic) or the Appellant.
(g)The fact that in her evidence in chief the complainant did not say 'no' before sexual intercourse occurred and did not say to the Appellant that she would not consent to sexual intercourse. Further, at no time did the complainant in her evidence in chief claim to have told the Appellant to stop before he penetrated her vagina. The complainant did say that after sexual intercourse had commenced she said 'just take me back, get off me'."

Particular (a) accurately summarises the evidence, although it ought to be added that the complainant's evidence was that the appellant had yelled at her, "Get in the car", that she was scared by the appellant's voice, and that she was so scared that she ended up getting into the car. As to particular (b), the evidence of the complainant was that the consumption of rum and beer had occurred at a friend's flat (where, on the evidence, she had been for about five hours prior to going out to the public telephone) and that the evidence of her smoking marihuana was limited to her saying that she smoked some of a marihuana cigarette which she had rolled for and at the direction of the appellant after the appellant had told her to "Have a drag". Particular (c) may be disregarded as there was no evidence before the jury of any act of sexual intercourse other than that which was the subject of the indictment. In so far as particular (d) is concerned, I would not be prepared to conclude that it was inherently improbable that the appellant was able to do what is therein referred to. There was no sufficient cross–examination of the physical characteristics of the motor vehicle to enable such a conclusion to be drawn. Particular (e) is not supported by the evidence. There was evidence that after intercourse had occurred, the complainant smoked a cigarette which she had obtained from the appellant's car. However, there was no evidence that she did so while she was seated in the appellant's car, nor of course, was there any evidence that she had been raped twice. Particular (f) is equivocal. By itself it adds nothing to the case other than that no corroboration was to be found in any physical injury to the complainant. Whilst it is correct to say, as is asserted by particular (g), that the complainant did not ever say "No" before the commencement of sexual intercourse, there was quite clear evidence from the complainant that she was not consenting, in that she expressed the absence of consent by crying prior to the commencement of intercourse, and by her statement, "Get off me", during the continuance of intercourse. The jury was entitled to infer from the whole of the complainant's evidence that the appellant continued to engage in intercourse after having been told by the complainant to get off. If the jury so inferred, they were entitled to treat that evidence as negating consent at least to a continuance of intercourse and as negating any belief on the part of the appellant that in fact the complainant was consenting. Regardless of the situation at the time intercourse commenced the appellant was nevertheless guilty of rape if he continued to have sexual intercourse after consent was withdrawn by the complainant and he knew that its continuance was without the consent of the complainant.

That leaves the matter of the knife. The complainant gave evidence that at the time the appellant yelled at her to get into his car, she saw a knife on the dashboard. She said that it was probably about 20 centimetres long. Whilst there was no suggestion during the course of the complainant's evidence–in–chief that the presence of the knife played any part in her decision to get into the car or that its presence had any other effect upon her, she was nevertheless cross–examined on the issue in the following terms:

"QAnd the reasons you say you were scared are because he yelled 'get in the car' and you saw a knife on the dash board?
ASorry.
QThe reasons you were scared were because he yelled 'get in the car' and you saw a knife on the dash board, is that correct?
AAt the same time he said 'get in the car'.
His Honour: At the same time as he yelled 'get in the car'. Yes."

I construe the complainant's answers as possibly expressing an acceptance by her that she was frightened because the appellant had yelled at her and because she saw a knife on the dashboard. The appellant gave evidence that he did have a knife in the car at the relevant time, but that it was contained in a leather pouch which was in the glovebox. He said that it was a very sharp hunting knife and that he always kept it in the glovebox to keep it away from his children. The evidence was that the knife was not in the car when it was later impounded by a police officer, and the appellant offered no explanation beyond conjecture as to what had become of the knife.

The learned trial judge made some observations in relation to the knife, in the following terms:

"Now there's the knife. Of course, there's a primary dispute as to whether it was on the dashboard or not, she said it was in the beginning, he later removed it. He says it was never on the dashboard. But it does seem to be common ground that there was one. The accused says it was in a pouch in the glovebox. It's gone. The Crown say he must have thrown it away and that indicates a guilty mind. The defence say I gather, but you may not agree with me about this, that it must have been taken by the Police or perhaps some stranger. Although in that context I remind you of the Police witness Moore, who said that he secured the car, I think whilst the accused was still up there in Elizabeth Street. Now you may see no significance in this business of the knife one way or the other, as Mr McDermott said to you, it wouldn't be easy to throw it away and why would he throw it away anyway. On the other hand the Crown say that that indicates a guilty mind because he knew that it had been used in this rape and therefore it would be a piece of evidence against him.
Well you will see of course that the knife and its disappearance by itself doesn't prove anything. it doesn't go to the core of the matter. But it's a factor that you can put into your mind when you're considering the core, namely, the evidence of the complainant, and the evidence of the accused."

Counsel for the Crown had earlier made reference to the knife, but without specifically suggesting to the jury what significance attached to it, in the following terms:

"You recall her evidence. He asked her to come for a spin and then he said – I forget her exact words, but in a demanding, threatening voice 'get in the car'. She saw the knife there."

His Honour's reference to the knife having been "used in this rape" could only have been construed by the jury as being a reference to the use of the knife by way of inducing fear in the complainant leading to her acceding to the appellant's demand that she enter his motor car. There was no evidence that the knife had played any other part. There was evidence given during the course of cross–examination, to which I have referred, from which the jury could have concluded that the presence of the knife had engendered some fear in the complainant's mind whereby she was induced to enter the car. The jury was entitled to conclude that the appellant had disposed of the knife in circumstances indicative of a guilty mind. I do not consider his Honour's observations on the subject of the knife to have been erroneous. In my view, the jury was entitled to make use of the evidence of the knife in the manner referred to by his Honour. No objection was taken by counsel for the appellant at the conclusion of the charge to the jury as to the manner in which the learned trial judge had dealt with the issue of the knife. I suspect that no such objection was taken because the way in which the complainant had given her answer to the proposition put to her by counsel for the appellant conveyed a form of assent.

I would dismiss the appeal.

[1991] TASSC 102

7 November 1991