Jones v The Queen
[1997] HCATrans 73
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Hobart No H6 of 1996
B e t w e e n -
MARK RODNEY JONES
Applicant
and
THE QUEEN
Respondent
BRENNAN CJ
TOOHEY J
GAUDRON J
McHUGH J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 14 MARCH 1997, AT 10.18 AM
Copyright in the High Court of Australia
MR T.J. ELLIS: May it please the Court, I appear for the appellant. (instructed by Clarke & Gee)
MR D.J. BUGG, QC: I appear with my learned friend, MS C.J. GEASON, for the respondent. (instructed by the Director of Public Prosecutions (Tasmania))
BRENNAN CJ: Mr Ellis.
MR ELLIS: Thank you, your Honour. Your Honours, the appellant’s conviction on two counts of rape and one count of attempted rape was not possible unless the evidence of the complainant was accepted as to those counts. There was no evidence independent of the complainant in the least sufficient to make the conviction of the appellant possible. Now, in the present case the appellant’s credit was at the very least enhanced by quite a deal of attention being given to evidence being led of complaints she made after the alleged offences.
BRENNAN CJ: It is common ground that there was an error in failing to give a direction.
MR ELLIS: Thank you, your Honour.
BRENNAN CJ: The question is the application of proviso, is it not?
MR ELLIS: Yes, it is, your Honour. As to the proviso, though, it is perhaps necessary to restate that there was a great deal of evidence of recent complaint. It was not just a small matter in this trial. It was a very large feature of the trial. The complainant ‑ ‑ ‑
TOOHEY J: But in a sense that is what seems to have persuaded Wright J to take the view that he did, that in the circumstances a direction was not necessary. In other words, because there was so much evidence, in giving a direction the trial judge would be dwelling, perhaps to the detriment of the accused, on the evidence of complaint.
MR ELLIS: Yes, so that it might have been detrimental to the accused but he ‑ ‑ ‑
TOOHEY J: That is not to say that Wright J was correct, but that is a matter that could be put against your argument.
MR ELLIS: Yes. In the context of this trial, the only point I wish to make was that because of the sheer number of witnesses called devoted to that point there was at least the possibility of a misapprehension of strength in numbers, namely that a jury not instructed as to the limited use to be made of that evidence may well have said, “These witnesses were independent”, may well have identified with those witnesses as not being doctors or policemen or forensic scientists, and see those witnesses as, in effect, corroborating - although corroboration was not required in this case - corroborating the complainant. It was, therefore, the number of them could have been something which influenced the jury. Whether that influence was articulated in the jury room or not, of course we do not know, but the jury at least has gone into the jury room having heard the complainant backed up by independent lay witnesses as to certain parts of her account and that may have enhanced her credibility in an entirely impermissible way, which is why I mentioned the number of witnesses, the time ‑ ‑ ‑
TOOHEY J: You are using Justice Wright’s point, in a sense, to advance your case as it were, because the sheer amount of evidence regarding complaint made it all the more necessary to explain how that sort of evidence should be treated by the jury.
MR ELLIS: Yes, your Honour. The amount in itself may have tended to overwhelm in an impermissible way. As to the proviso, then, as your Honours say, it is conceded that this is virtually a proviso point. I will have to depart, I am sorry, fairly substantially to what I have proposed in my written submissions and seek to take the Court, if I could, through how the majority of the Court below came to apply the proviso, because it would be my submission that that was done in a way which was, with respect to them, somewhat illogical.
KIRBY J: It would not be a proviso case on the primary view taken by Justice Wright but, as I understand it, the Crown does not support that view.
MR ELLIS: No, your Honour.
KIRBY J: Therefore, Justice Wright did in fact say he would apply the proviso if he had to.
MR ELLIS: Yes. When I come to him, your Honour, he used several steps in a chain of reasoning in relation to the proviso point, as he did to conclude that the direction was not required as a matter of law, and the point is conceded to be wrong.
TOOHEY J: My comments and question to you a moment ago, Mr Ellis, were in the context of a proviso, because, as you have pointed out, it is common ground that there should have been a direction.
MR ELLIS: Yes, thank you. It would also appear to be common ground now that the conviction of the appellant was by no means inevitable. The Crown case will be said to have been strong but not overwhelmingly strong, as is pointed out in the majority judgments below. There were several features of the defence case which were not without merit including, in particular, the absence of confession, the fact that the appellant gave sworn evidence and, according to Justice Wright, performed well, creditably, that there was an opportunity during the course of the alleged rapes for the complainant to have sought assistance and she failed to do so, and that there was video-taped evidence of the two, complainant and appellant, immediately after the rapes, hand in hand. So there were certainly features. It would have been no surprise at all had the appellant been acquitted. In fact, this was ‑ ‑ ‑
KIRBY J: You say video-taped evidence. What was the video‑taped evidence?
MR ELLIS: It was evidence of a video tape set up as a security camera at a night club which was close ‑ ‑ ‑
KIRBY J: I see, that they were hand in hand. The complainant of course explained that. She said that she did that so that she could get away and that this would be a matter of fact to be determined by the jury.
MR ELLIS: Yes, your Honour.
KIRBY J: She did not deny that she was hand in hand with him.
MR ELLIS: No, she did not. It was agreed. It was an agreed fact that the video tape was somewhat unclear and there were certain agreed things seen to have been shown in it.
The application of the proviso by his Honour Mr Justice Underwood commences at page 388 of volume 2 of the appeal book, your Honours, after an excursion as to the origins of the rule. Having set a scene as to counsel’s addresses at lines 5 to 10, his Honour commences his logic at line 15 in what is, with respect, a non sequitur, where he says:
No direction about the danger of convicting on the uncorroborated evidence of the complainant was given or called for. Thus, there was no risk of the jury erroneously treating the evidence of complaint as independent corroborative evidence of the commission of the crimes.
TOOHEY J: So, it is perhaps only supportable if his Honour was referring to corroboration in a technical sense. It is difficult to perhaps conclude that there was, therefore, no risk of the jury erroneously treating the evidence of the complaint as independent confirmatory evidence, in other words, as going to confirm the complainant’s account of what happened.
MR ELLIS: Yes. It seems there that, certainly in the first sentence in that paragraph, “corroboration” is used in the legal sense but in the second sense it almost seems to be used in the colloquial sense as confirmatory. His Honour does not return ever to that point.
BRENNAN CJ: It does not follow, does it?
MR ELLIS: No. That is my point, that those two sentences do not follow logically. Simply because corroboration was not an issue it does not mean that the jury could not have treated it as corroborative. That is the very danger, of course, that has been pointed out in Lillyman and cases since, that that is what the jury would naturally do to treat it as corroborative. So, his Honour Mr Justice Underwood, I submit, starts with a non sequitur. He then, in the next sentence makes a mistake of fact:
This is not a case where the evidence of recent complaint was given only by witnesses other than the complainant.
As to one of those complaints, that said to have been made to Damien Jones, that was only given by Jones and not by the complainant, so that sentence is not true. His Honour then points out in the same paragraph that there were no inconsistencies or minor inconsistencies. In my submission that is not in itself of any moment in deciding whether the proviso ought to apply. If there were inconsistencies they would be admissible, presumably, as prior inconsistent statements in any event.
His Honour then at line 25 sets out two propositions which, he says, would have had to have been part of the direction and number one of those, in my submission, is an error in law because it would be wrong to direct the jury to
Consider the evidence of recent complaint and if you accept that evidence, consider whether it was true at the time it was made.
That would be the very exercise that they should not go through, it being circular, and using, therefore, the complaint as evidence of the truth of the matters complained of.
His Honour goes on to say such logic would be impossible to apply, which it possibly would, being circular, and concludes - it would seem concludes that there is only one way the jury would have been able to have taken that evidence. At page 389, he points out that:
the fact that recent complaint was made was not in issue.
Again, it hardly ever is, and could not be in this case. With respect to his Honour, it is difficult to say in the end on what basis his Honour applies the proviso. He conceded, under the Mraz test, that there was a prospect of acquittal, that conviction was not inevitable, but seems to say that it would have made no difference but for the reasons previously advanced, which I submit are unsustainable.
He fails to consider in his judgment what the jury - he seems to assume, I am sorry, that the jury would have considered the evidence of recent complaint and come to the only conclusion as to it, which is approved by law, without considering that the jury may not have taken that issue separately and may not have applied any rational process to it whatsoever, but may simply have taken it as an impression, giving them comfort in acceptance of the credibility of the complainant.
His Honour Mr Wright J’s application of the proviso has its genesis at 392, the paragraph next to line 10, at which part of his judgment he is coming to the conclusion that the direction was not required as a matter of law. He commences:
We treat jurors as logical and rational human beings.
He concludes there from that thought:
How they could think that, in a case such as that now before us, a complaint could have some independent weight or could be viewed as anything other than material suggesting either credibility or untruthfulness on the part of the prosecutrix as the case may be, surpasses my comprehension.
The starting point of that, your Honours, is not, in my submission, entirely correct either. We do treat jurors as logical and rational human beings, but we do not expect that their verdict proceeds entirely from rationality or reason. We permit them and, indeed, encourage them to form assessments of witnesses based on such non-reasoning processes as demeanour, impression, how they appeared to you and so on. And so, the jury process is not one of cold logic. It does not pretend to be. An appeal will not lay because, as a matter of cold logic, a jury might not have convicted when they in fact have, because they are entitled to take impressions and non-logical things into account.
So his Honour’s basic premise that the jurors are rational is true enough in a polite sense, but we do not expect their process to be rational, yet from that his Honour extrapolates that therefore they would have applied to this evidence a rational process ‑ ‑ ‑
GAUDRON J: Well, his Honour’s line of reasoning there would be such as to dispense altogether with the need for warning juries about the use that they might make of any evidence.
MR ELLIS: Yes, your Honour, that is right. They would always come to the conclusion authorised by law because it is rational and logical. Again, his Honour does not proceed on the basis that conviction was inevitable. His Honour does not consider the prospect that the jury may not have dissected that evidence and come to a conclusion about it at all or that having done so may have come to an erroneous conclusion and may have treated the evidence as corroboration in some way in the colloquial sense.
That is how the majority appear to have got the application of a proviso and, in my submission, they do so by ignoring the warnings of common sense, I think more recently than any, the case expressed in Reg v E (1996) NSWLR 450, the decision of the New South Wales Court of Criminal Appeal. In point of time this judgment in Reg v E had been given by the time the judgment here appealed from was, but it is my submission it appears to be per incuriam. I know that no one found it in the course of argument and their Honours appear not to have found it in the course of their decisions. At page 460 in the judgment of Justice Sperling, certainly not the only time such a sentiment is expressed, at paragraph C he says:
I pause here to observe that for a jury to think that evidence of complaint could be treated as corroboration may be an easy mistake in circumstances where corroboration is in the air, but it is a monumental mistake.
This really completes, I suppose, the circle back to Lillyman where it was said to be what the natural impact of such evidence on the juror would be that the juror would treat it as evidence independent of the complaint.
The Court of Criminal Appeal of Tasmania has decided that a jury would not do so and, moreover, could not make that mistake even absent a direction from the trial judge. The Court of Criminal Appeal in New South Wales in R v E held that it would be most possible for a jury to make that mistake even where, as in this case, directions were given which were correct in law, although their Honours held almost unintelligible for the jury. So, in my submissions, still more so where there was no direction whatsoever.
The proviso, in my submission, should not have been applied especially on the logic there set forth, (a) because the conviction was not inevitable and now, in the appellate’s way it is impossible to know whether or not the jury came to any conclusion and, if so, what concerning that evidence. Alternatively, I would submit that it was in this case a fundamental miscarriage, that is, a fundamental omission where so much evidence was devoted, so much time in a four-day trial was devoted to evidence of recent complaint to let that go through completely unexplained as to its limited basis. It was an error of a fundamental way and, therefore, both tests proposed to this Court as to when the proviso should not be applied, I submit, are satisfied here. If it please the Court, they are my submissions.
KIRBY J: Could I just ask you this, and this is the only matter that is troubling me. This was, it seemed to me, a pretty strong Crown case and I think Justice Slicer acknowledged that. One must be very careful jumping from that to the view that the conviction was inevitable where there has been a legal misdirection, but did Justice Underwood accept that conviction was not inevitable? I think he said so?
MR ELLIS: Yes, your Honour, he did say so.
KIRBY J: I was just looking for that passage.
McHUGH J: It is 389 between 10 and 15.
MR ELLIS: Yes, thank you, your Honour, that is exactly the passage I had in mind.
KIRBY J: Would you give me that page again, I am sorry?
MR ELLIS: Page 389, paragraph 10 to 15, your Honour. The concession is there made that there was to the contrary.
BRENNAN CJ: Yes, thank you, Mr Ellis. Mr Bugg.
MR BUGG: Yes, thank you, your Honour. In so far as the application of the proviso by the Court of Criminal Appeal in this matter is concerned, your Honours, I have endeavoured to address the argument in support of the result obtained before the Court in the outline of submissions starting at page 3. I accept that to succeed, the Court of Criminal Appeal would have to be satisfied in the end of the Mraz test in so far as the inevitability of an outcome such as that which was obtained during the trial process but, of course, in light of the clear indication given by this Court in Kilby, there would need to be some consideration of the issue of whether or not the error, that is the omission, to give a direction was of a fundamental nature and of such a nature that the trial departed from the essential track, that is, that no fair trail was in fact had by the appellant.
TOOHEY J: Now, I am not sure what you mean by that, Mr Bugg. Are you using that in the Wilde sense?
MR BUGG: Yes.
TOOHEY J: Is that the way in which you approach the operation of the proviso? If the trial has fundamentally miscarried, that is the end of it.
MR BUGG: If the Court is satisfied that it has not fundamentally miscarried and, of course, one of the propositions that has been put to you by my learned friend is that there was a fundamental deviation from the path of a fair trial.
KIRBY J: I thought that was his second fall‑back position. His primary position was that there had been a miscarriage because an essential direction had not been given and, therefore, the accused lost the fair chance of being acquitted. The other is a much more drastic error that is so bad that the trial is not really a trial and I understand that to be an alternative proposition for the appellant but also an alternative basis for the interference by an appellate court.
MR BUGG: Yes, your Honour.
KIRBY J: I suppose they are both pointed in the one direction but they are, I think, different concepts.
MR BUGG: They are different concepts and I had, I suppose, regarded the latter as presented by my learned friend as one which would need to be addressed first in response. Certainly it seems to be that that is the way that this Court has addressed the issue in both Wilde and Glennon.
BRENNAN CJ: We do not need to hear you on that aspect of the matter, Mr Bugg.
MR BUGG: Thank you. Your Honours, then moving to the other issue, that is the inevitability of conviction. The outline addresses a number of issues which seek to examine the way in which this trial was conducted and that is the emphasis that was given to the recent complaint evidence and the cross‑examination of the complainant as to that material. There was certainly a focus upon it. I would not have said, not having conducted the prosecution of the case, but I would not have said in time there was an overdue concentration on this particular evidence and that is ‑ ‑ ‑
TOOHEY J: What do you mean by “this particular evidence”? You mean the evidence of the complainant as to complaint?
MR BUGG: The evidence of the independent witnesses as to the complaint which she made and her own evidence in‑chief. Certainly, she was cross‑examined but not in great detail about that and the two passages of cross‑examination are referred to in the outline of submissions where it was suggested to her in cross‑examination that she did - there was no point taken about the complaint or the content of it. It was suggested that the complaints were made because, on emerging from the laneway, she saw people who she knew and who knew her current boyfriend and she panicked, made up a tale of non‑consensual intercourse, and then had committed herself to that course and had to follow it through right to the end of the trial process.
TOOHEY J: In a sense that really only points up, does it not, the problem that arises here, because the evidence of the complaint, as it emerged from other witnesses, was pretty telling, unless the jury were properly directed as to how they should treat that evidence.
MR BUGG: If the risk is that the jury treated that evidence as proof of an occurrence rather than evidence of a statement, I would agree with your Honour, but it seems to me that when you isolate that evidence and see how it was dealt with in the trial, you have defence counsel effectively not challenging the evidence of complaint from the independent witnesses: putting to the complainant and forcefully stressing the point in his closing address that what was said to these people was untrue because it was a fabrication to hide from her boyfriend the true nature of what had occurred. So the jury was examining it from the point of view of something she said not something she did or something that was done to her in the car park.
So that the focus in terms of is relevance in the deliberative process of the jury was, that proves she is untruthful, because when she emerged from the laneway she told lies about what happened down there. So the recent complaint evidence was addressed and presented as a fabrication, that is a tale and not factual evidence. To some extent ‑ ‑ ‑
BRENNAN CJ: That is no doubt right - rather, I should say, that is no doubt one way in which the case could have been run and perhaps was run. If one approaches it only in that way the danger is this, is it not, that you say, “We are not satisfied with this story that she was just there to tell a lie, and obviously they are concerned about his evidence of what she said to these people because there it is, if ever you have seen a case where the whole thing hangs together and this is the proof of it, look what she told these others and they have confirmed everything that she said, so, therefore, we find him guilty.” That is, in other words, a mistaken way of reasoning because it goes from a rejection of the defence case to a finding of corroboration of the Crown case.
MR BUGG: Your Honour, I understand that proposition because, of course, that is precisely what Justice Hawkins said in Lillyman.
BRENNAN CJ: If that is the case, then how can you pray in aid the proviso?
MR BUGG: Because I would hope that I can convince your Honours that the manner of the presentation of that evidence and the way in which the trial was conducted, whilst under normal circumstances you might concede that there is a risk that the jury would proceed down that path, in my submission, that is not the case here. If you look at what the evidence is presented to the jury for, that is to bolster the credit of the complainant, you become involved in an argument that certainly has a circuitous route to it; but the proposition is, it is evidence before the jury of what she said happened when she came out of the laneway.
One of the witnesses, O’Neill, when confronted with the account - that is, she was one of the passengers in the motor vehicle she entered - left the car and went back to the appellant and confronted him with it in questioning terms. In other words, “What have you been doing?”. It was not a proposition that she was presenting him with an evidentiary fact. She interrogated him as to what had happened based on the complaint that was given to her. So, the character of that evidence was a recounting of what had occurred in the car park. Not evidentiary proof ‑ ‑ ‑
BRENNAN CJ: That rather points up that proposition. The question was, “What have you been doing?”. Now, that, from the point of view of the questioner relates back to what she had been told. From the point of view of the accused, if you give him credibility it was a question with respect to consensual intercourse.
MR BUGG: If you consider the atmosphere in which that witness, O’Neill, returned, or went to the accused, in the jury’s mind she has been told that an incident had occurred in a particular way. She takes that tale to the accused and asks the question. In other words, it is presented as an account but not evidence.
KIRBY J: His answer was consistent with his story, “You had better ask her”. That would be consistent with a consensual act of intercourse.
MR BUGG: Yes.
KIRBY J: So that you have got that and you have the three elements in the evidence which Justice Underwood concedes are evidence telling for the accused. You have a pretty powerful Crown case on the facts and on the complaints. It seems to me it is all the more important that the legal direction should be accurate.
MR BUGG: The direction, if one examines - and I must say that Kilby obviously was considering lateness of complaint and therefore not this specific issue, but it would seem to me that the judgments in Kilby adopt as a correct statement of the law, even though it was not applicable specifically to the issue before the Court in Kilby, the statement by Justice Hawkins in Lillyman, and if a direction in those terms was given it would be certainly one which invited the jury to consider the consistency of the account given by the complainant, the limitation to which they could put that evidence, but invite them also to consider whether or not that was conduct which they could expect from someone who had experienced what the complainant was saying she had.
TOOHEY J: But there is a step that you have not taken I think, Mr Bugg, and that is that when the complainant’s friend approaches the appellant, you put it in terms of almost a sort of very low key questioning of the appellant ‑ ‑ ‑
MR BUGG: Well, it is an accusation.
TOOHEY J: It was, was it not?
MR BUGG: And I think used the word interrogation, but I do not think - we think of those terms when we speak of police interrogating.
TOOHEY J: But you really put it in terms of an inquiry from the appellant as to what he had been doing, but it would not be very difficult to imagine a juror thinking, “Well, if the friend had been told something such that it prompted her to confront the accused, then that is pretty good evidence of the fact that it did happen as she recounted.” I mean, the distinction that the direction requires, everyone agrees, is a pretty sophisticated one, but that does not mean that it ought not to be given and that it ought to be explained as clearly as the circumstances permit.
MR BUGG: Look, I would not try to convince this Court on the issue that is now before it that it ought to be a direction which is considered lightly in terms of the frequency of its presentation to a jury, but I would submit that the door should not be closed. In other words, if the proviso has any relevance at all in terms of an examination of an issue such as this, what must be considered is whether or not the jury, if given the direction in the circumstances of this case, would have dealt with the matter differently, that is ‑ ‑ ‑
BRENNAN CJ: Might have.
MR BUGG: Might have, I am sorry, your Honour, and was a conviction inevitable, given ‑ ‑ ‑
BRENNAN CJ: I am not quite sure which way you are putting this proviso. Are you putting it on the basis that, having regard to the way in which the trial was run, there was no risk of the jury dealing with this evidence in a fashion inconsistent with that which the direction would have required?
MR BUGG: Yes.
BRENNAN CJ: Or are you saying even though there was that risk, the other evidence in the case was so overpowering that it was impossible for the jury to come to any other verdict?
MR BUGG: No, I would not try to convince the Court that the overwhelming nature of the Crown case was such that a verdict of guilty was inevitable.
BRENNAN CJ: In that case we are concerned only with the risk of this misunderstanding of the true nature.
MR BUGG: Yes, that is right.
BRENNAN CJ: Now, having regard to that particular evidence that you spoke about in terms of the question asked by the person to whom the complaint was made of the accused immediately afterwards, was there not a very real risk that the jury, understanding that the question was put on the footing of the complaint, might have taken the response as an admission of the facts contained in the complaint?
MR BUGG: No, because the response was not inconsistent with the account which he gave to the police within 12 hours or thereabouts of this incident occurring, and consistent with the account he had given on oath. Now, the jury was effectively examining a denial of the aggression and the assertion that was made by the witness, O’Neill, and that is certainly my reading of the transcript and my understanding of the material that was presented at the court. There was certainly nothing which would have indicated that there was an admission in that. It was never presented, either by the Crown, or treated by the defence, as anything touching an admission; but, rather, a consistency in conduct.
The issue which, it seems to me, does not invite the landslide that my learned friend suggests in his outline of submissions, that if there is nothing exceptional in this particular matter in the way in which the two Justices of the Court of Criminal Appeal dealt with the application of the proviso, then there would seem to be no need at all to give a Lillyman direction in any matter involving recent complaint, overlooks the fact, in my submission, that there are a number of unusual features about his case.
In examining what would be presented to the jury with a direction in accordance with Lillyman, and their treatment of that evidence, it would be illogical, in my submission, to anticipate or expect that the jury would deal with that evidence in any other way, and that is that her credit is put in issue on the basis of a lie told on the emergence from the laneway; a consistent lie told throughout. For the jury to convict, they must have accepted her as a witness of the truth. Now, to then say, well, we cannot exclude from that proposition a consideration by the jury of this evidence in an impermissible way, in my submission, extends an illogical consideration of the issue by the jury, or applies an illogical consideration by the jury.
TOOHEY J: I am sorry, I do not follow that. If anything, one might think that the evidence given by those to whom the complainant complained might well have tipped the balance on a question of credibility, absent a proper direction as to how the evidence should be treated. It is the real crux of it, is it not? Could I just go on? This is a somewhat unusual case, and very often these complaints are made in the absence of the accused. Perhaps more often than not, I am not sure. It has a very dramatic impact, because the complaint is made very shortly after the incident and the - one or more of the persons to whom the complaint is made confronts the accused. Now, it would not be very difficult for the jury to treat that evidence as confirming the complainant’s account of what had taken place.
MR BUGG: It certainly confirms the content of the complaint to the witness. The issue, in so far as that evidence is concerned, is that we are not dealing here with a direction which is wrong, we are not dealing with the admission of evidence which is inadmissible. The evidence is admissible. It is presented to the jury as an account she gave when she emerged from the laneway. It is repeated by the people to whom she spoke and it is not disputed, but it is presented, or attacked I should say, as an account and nothing more. Therefore, in the consideration of it by the jury, you have it presented only at that level, that is, it is what she said, it is made up ‑ ‑ ‑
GAUDRON J: Yes, but is not the difficulty this? So concentrated was the attack on it, that much is clear, that the jury might well think they would only attack it because of its critical importance.
MR BUGG: It was not the only matter attacked.
GAUDRON J: No, but there was a fairly concentrated attack on it and it tended to develop a certain prominence that it might not otherwise have had in a different case.
MR BUGG: Your Honour, I would have thought that the attack was certainly concentrated, in that it was brief. The proposition put to her that what she had said was untrue when she came out of the laneway was based on the proposition that it was made up. She was cross-examined at length about the truthfulness of the allegation she was making in the witness box, but the questioning, or cross-examining of her as to what she said when she came out of the laneway and the reason for being dishonest about that was only very brief. On the two occasions, defence counsel touched upon the subject, it takes up about a page and a half in total of the transcript and it takes approximately a third of the page of his summing up. The passages are referred to in the outline of submissions.
I know there are difficulties with it. I know that when this Court has examined the matter only recently in a related issue with Crofts, it expressed concern, but the way in which this trial was run clearly presented this material to the jury not as evidence of the facts, but testing the truthfulness or credibility of the complainant. In one sense, the defence used it as an attack on the credibility of the complainant. Therefore, that is the only basis upon which it was before the jury. I am now going around in circles ‑ ‑ ‑
BRENNAN CJ: You are going around in circles.
MR BUGG: ‑ ‑ ‑ and digging a hole at one end of it but, in any event, your Honours, I cannot take the matter any further in terms of the status of that material within the trial process, but it does not have the taint that this Court has been critical of in other matters.
BRENNAN CJ: What you cannot exclude is this, is it not, and that is that the jury says the main question here is, “Is she to be believed?” Here are some statements that she made immediately after the event. If those statements were made immediately after the event then the Crown’s allegation of the facts must be true, and that tells us that she is telling the truth instead of what has to be done, the question is the truthfulness of the witness. If she is telling the truth? One would expect that she would make a complaint. Yes, there is a complaint here, so there is no reason on that account to doubt the truthfulness of what she says.
MR BUGG: There is a little more to the Lillyman direction than that issue. It is the content of the complaint, the consistency in terms of it.
BRENNAN CJ: That is the whole point. In other words the notion of truthfulness and a notion of the truth of the facts are very closely related notions, and sometimes the truthfulness may be inferred from a finding of fact, whereas the Lillyman direction requires the finding of fact to be made only after truthfulness is determined.
MR BUGG: Yes. Part of that exercise would - I have joined issue with the proposition that the Freeman decision from Victoria sets out an appropriate direction to the jury, but following Justice Hawkins’ judgment in Lillyman, the directions to the jury in this case to comply with that requirement would have said that it affirmed the acts complained of, that they were against her will, and in accordance with the conduct, the jury would expect in a truthful woman under the circumstances detailed by her. Now, in weighing that credibility component of the trial process, the evidence was never presented as evidence of the facts. It was only dealt
with in the way in which I have already submitted to your Honour and I cannot take that matter any further. If the Court pleases.
BRENNAN CJ: Thank you. We need not trouble you in reply, Mr Ellis, but the Court will adjourn briefly.
AT 11.05 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.14 AM:
BRENNAN CJ: The appellant was convicted, following a jury trial, of rape and attempted rape. His appeal against conviction to the Court of Criminal Appeal of Tasmania was dismissed by a majority (Underwood and Wright JJ, Slicer J dissenting). Underwood J and Slicer J each held that there had been error by the trial judge in failing to direct the jury as to the use they might make of complaints made by the complainant that the appellant had raped her. The complainant gave evidence that on three separate occasions she had complained to a total of five people. Three of those five persons testified that the complainant had accused the appellant of raping her. There was similar evidence from another person whom the complainant had not mentioned.
Underwood J accepted that there was evidence which the jury could have regarded as tending to show consent but held that, notwithstanding the absence of a direction, the appeal should be dismissed by the application of the “proviso”. Wright J held that no direction by the trial judge was required in all the circumstances of the case but, in any event, applied the proviso. Slicer J held that a direction was necessary, that it had not been given and that the proviso was inapplicable.
It has been clear, at least since R v Lillyman [1896] 2 QB 167, that upon a trial for rape or a kindred offence the fact that a complaint was made by the prosecutrix shortly after the alleged occurrence and the particulars of the complaint may be given in evidence, not as evidence of the facts complained of, but of the consistency of the conduct of the prosecutrix with her account in the witness box of the relevant events, including her non‑consent to the act of sexual intercourse to which she deposes.
Lillyman was considered by this Court in Kilby v The Queen (1973) 129 CLR 460. The point in Kilby was rather different from that in Lillyman but the English decision was referred to with apparent approval, by the members of the Court. Indeed, Menzies J, speaking of the use that could be made of a complaint, described a passage in the judgment in Lillyman as, and I quote, “all that needs to be said on the matter.” That is at (1973) 129 CLR 460 at page 474.
Now, the need for a specific direction as to the use which might be made of evidence of complaint is apparent from a number of decisions, including R v Freeman, [1980] VR 1, R v E (1996) 39 NSWLR 450. Its need was rightly accepted by Underwood J and Slicer J, as the respondent acknowledged in this Court. Section 402(2) of the Criminal Code Act 1924 (Tas), provides:
“The court may, notwithstanding that it is of the opinion that the point raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”
The operation of such a provision was identified by Fullagar J in Mraz v The Queen (1955) 93 CLR 493, at page 514, where he said:
If.....the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice.
The appellant did not deny sexual intercourse with the complainant, but he alleged it was consensual. And he denied the complainant’s account of the circumstances in which it occurred. Thus the credibility of the complainant was very much in question. Slicer J put the matter this way:
Given that the credibility of the complainant was central to the respondent’s case, I am unable to conclude, notwithstanding the strength of the case against the appellant, that the respondent has shown that no substantial miscarriage of justice has occurred.
We agree with his Honour. The account which the complainant gave to others of what had occurred was, as Slicer J pointed out, “linked to the veracity of the account given by [her] to the jury”. Unless the trial judge made clear to the jury the limited use they might make of the evidence of the complainant of her complaints and the evidence of those to whom she complained, there was every likelihood the jury might treat that evidence as confirmatory proof of the facts which the Crown alleged. The distinction may not be an easy one for a jury to grasp but this does not detract from the need for the distinction to be carefully explained. Unless explained the evidence might well have played an important part in the jury’s assessment of credibility. There was no such explanation and, in our view, it is not possible to conclude that the appellant did not thereby lose a chance of acquittal which was fairly open to him.
We would allow the appeal, quash the appellant’s convictions on both charges and order a new trial.
MR BUGG: Your Honour, I can indicate I would not seek an order for a retrial. The appellant has been in custody since February 1996. He was sentenced to a term of imprisonment for three years. Certainly that is not an option I would be considering.
BRENNAN CJ: Then what is the appropriate order which this Court should make in the light of the quashing of the convictions?
MR BUGG: I think, your Honour, if I could give that indication to the Court. The complete order of this Court should be for a retrial, but I would certainly not take the matter further, if that is a matter of concern to the Court, in light of what has occurred.
TOOHEY J: Otherwise, the alternative would be to enter verdicts of acquittal and that may not be appropriate in the circumstances.
MR BUGG: I would have some difficulty with that.
BRENNAN CJ: The order will be as I have indicated.
MR BUGG: May it please the Court.
AT 11.22 AM THE MATTER WAS CONCLUDED
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