K v The State of Western Australia
[2010] WASCA 157
•3 AUGUST 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: K -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 157
CORAM: PULLIN JA
BUSS JA
JENKINS J
HEARD: 18 MARCH 2010
DELIVERED : 3 AUGUST 2010
FILE NO/S: CACR 114 of 2009
BETWEEN: K
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
File No :IND 250 of 2009
Catchwords:
Criminal law - Appeal against conviction - Evidence - Scope and application of the rule in Browne v Dunn
Criminal Law - Appeal against conviction - Judge's directions - Adequacy of direction on weight to be give to evidence from expert witness
Legislation:
Criminal Procedure Act 2004 (WA), s 112, 145
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Ms J D Whitbread
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Browne v Dunn (1893) 6 R 67 HL
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486
Hall v The Queen (1988) 36 A Crim R 368
Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430
Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
Mahmood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397
Merrey v The State of Western Australia [2010] WASCA 62
Middleton v The Queen [2000] WASCA 213; (2000) 114 A Crim R 258
MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436
R v Coswello [2009] VSCA 300
R v Ferguson [2009] VSCA 198
R v Foley [2000] 1 Qd R 290; (2000) 105 A Crim R 1
R v Klamo [2008] VSCA 75; (2008) 18 VR 644
R v Morrow [2009] VSCA 291
R v Thompson [2008] VSCA 144; (2008) 21 VR 135
PULLIN JA: I agree with Jenkins J that leave to appeal should be refused. I add the following observations. The details of the charges of which the appellant was convicted and the circumstances relating to the charges and to the grounds are set out in her Honour's reasons.
My observations concern ground 1. One issue which arose was whether the sexual penetration which had occurred on 19 September 2008 was consensual or not. The complainant's evidence was that she had a previous sexual relationship with the appellant but she eventually obtained a violence restraining order against the appellant on 8 September 2008. The complainant said she did not see the appellant between that date and 19 September 2008 the date when the offences were committed against her. The appellant said in his evidence that he saw the complainant between the date of the violence restraining order and 19 September 2008, that consensual sexual relations continued between them in the week before 19 September and that sexual relations on 19 September were consensual.
Ground 1 of the appeal which is set out in Jenkins J's reasons, concerns some evidence called by the prosecution about a telephone call made by the complainant, with the assistance of the police, to the appellant on 10 October 2008. This call was made after the complainant had made a complaint to the police. The call which was recorded by the police, was played to the jury and became exhibit 6 (ts 64). The transcript of the telephone call opens with the complainant referring to a note which the appellant had left for her. The complainant is recorded as saying that she understood that the appellant wanted to see her. During the telephone call she accused the appellant of raping her and holding her with a knife. The appellant did not deny these accusations (although he did ask whether he had used a knife). His response to these accusations was to apologise to the complainant and to say that he had gone 'off the rails'.
Later in the recorded telephone conversation, the complainant said that she understood that people go off the rails and added 'everybody does that but - but they don't rape and they don't bash up and they don't fucking make people do things they don't want to do' to which the appellant responded:
I just - fucked up. Right, I've never done that shit before. Fuck. I went off the rails (indistinct) whack. You know what I miss, I miss you having good times.
There was discussion in the telephone conversation about the complainant and the appellant meeting up at a hotel because the appellant had come into some money and then the transcript records the following:
AppellantOkay and J…, you know what, thank you so much for ringing. I have missed you every day for the week since I last seen you okay. Okay. And I swear on Courtney's life, I swear on my grandmother's grave, I swear on fucking - put it this way all right, if I was ever to see you again, I realise I'll never get another chance, ever to see you again okay. And I don't want to fuck that up.
Complainant You better not hurt me P….
AppellantI promise - J…, I promise you I won't.
Complainant You know the crap I've already been through all right.
Appellant(indistinct) but I'll get us a good shot okay so fucking when we do catch up whatever, we'll have a nice good shot okay. So you might not okay but I want to have a good shot okay.
Complainant Well I thought you'd already organised it all and I'm all ready to go. I was organising a lift to get out there because you know, I can't drive the car. (emphasis added)
AppellantNo well don't - I've got everything under control okay, all right.
The two words 'you know' which I have placed in italics, were seized upon and made the subject of comment by counsel for the appellant at the close of the case. Before referring to the point counsel set out to make, it is necessary to mention that when counsel for the appellant cross‑examined the complainant, he attempted to establish that the complainant had damaged her car 'around' 14 or 15 September 2008. The complainant responded to this by saying that the car was damaged, not while she was driving it, as counsel for the appellant suggested, but when the appellant was driving it. She could not remember the date when that happened. The dates 14 or 15 September 2008 were suggested because counsel for the appellant put it that she had telephoned the appellant on either the night of 14 September or the morning of 15 September 2008. The complainant denied telephoning the appellant. She answered the proposition that she had telephoned the appellant on that date with the answer 'No, not that I am aware of' (ts 102). Counsel for the appellant did not cross‑examine the complainant about what she meant by the words 'you know' in the recorded telephone call on 10 October 2008.
When the appellant gave evidence, he said that the complainant telephoned him on 14 or 15 September and that during that conversation she had told him that she had wrecked the car.
Thus there was a dispute between the complainant and the appellant about whether the telephone call was made, and if made, whether she said that she had damaged the car. Who actually drove the car when it was damaged was also in issue.
In closing addresses, counsel for the appellant seized upon the two words 'you know' in the 10 October 2008 recorded telephone conversation. Before referring to what counsel's point was, I observe that on reading the transcript, the words 'you know' can be read as a meaningless filler. However, whether the complainant was simply using a meaningless filler or whether the complainant was asserting that the appellant actually knew that the car was damaged, was a matter for the jury. Counsel for the appellant in his closing address, attempted to persuade the jury in effect, that they should accept the appellant's evidence that he had not damaged the car, could therefore not have known that the car was damaged, unless he had been told about it by the complainant and thus, the jury should believe the appellant's evidence about what he had been told on 14 or 15 September. Further, counsel contended that during the 10 October telephone call the complainant added the words 'you know' before the statement 'I can't drive the car', which was as a reference to what the appellant had been told on 14 or 15 September. Stretching a very long bow, counsel for the appellant in his address then, in effect, suggested that this proved that the complainant and the appellant had been in contact between the date of the violence restraining order and the date of the offences, that the complainant's credit was therefore diminished and ultimately that the jury should believe the appellant and not the complainant when the jury came to consider the issue of consent and other disputed evidence.
The trial judge's observations about this submission are set out in Jenkins J's reasons. The appellant alleges that this gave rise to a miscarriage and involved an erroneous application of the rule in Browne v Dunn (1893) 6 R 67 HL. In submissions, the appellant's primary assertion was that the judge erred 'in the way he chastised defence counsel' and that it was not for defence counsel to 'clear up inconsistencies in the complainant's evidence'. I agree with Jenkins J that the trial judge
did not chastise defence counsel and as Jenkins J explains, there was no inconsistency in the complainant's evidence. The inconsistency was between the evidence of the complainant and the evidence of the appellant which was to be resolved by whether the jury believed the complainant or the appellant. I also observe that the trial judge did not make any observation about the consequences of the failure to cross‑examine the complainant. As a result, I would dismiss ground 1.
I agree with Jenkins J's reasons for dismissing ground 2.
BUSS JA: The appellant was convicted, after a trial in the District Court before Stevenson DCJ and a jury, on one count of robbery, one count of aggravated home burglary and two counts of sexual penetration of the complainant without her consent.
The appellant has appealed to this court against his convictions.
I have read the proposed reasons for decision of Pullin JA and Jenkins J. I agree with their Honours that neither of the appellant's grounds of appeal has a reasonable prospect of success and that in consequence leave to appeal should be refused and the appeal dismissed. I propose, however, to state my own reasons for those conclusions. The material facts and the relevant events at the trial are set out in Pullin JA's and Jenkins J's reasons, and I will not repeat them except to the extent necessary to explain my reasons.
The grounds of appeal
The appellant relies on two grounds of appeal, as follows:
1.The learned trial judge erred both in law and in fact, and there was a miscarriage of justice, in his application of the principle established in Browne v Dunn (1896) 6 R 67;
Particulars
a)the Appellant relied upon a comment uttered by the complainant during a telephone call she made to the Appellant, which call was recorded ('the comment');
b)His Honour directed the jury the complainant had not been asked in cross‑examination what she meant by the comment;
c)there was no obligation on the Appellant to clarify what the complainant meant by the comment.
2.The learned trial judge erred both in law and in fact, and there was a miscarriage of justice, when he failed to adequately direct the jury that they did not have to accept the expert opinion of Dr Angela Jane Lumsden, such that there was a danger the jury would feel obliged to accept it.
On 18 September 2009, Owen JA referred the appellant's application for leave to appeal to the hearing of the appeal.
Ground 1 of the appeal: the course of the trial
At the trial, the complainant gave evidence, relevantly, to the following effect:
(a)The appellant committed the offences on 19 September 2008 (ts 37, 42, 45 ‑ 51).
(b)The complainant obtained a violence restraining order (VRO) against the appellant before the date on which the offences were committed. Although the complainant could not recall the precise date on which she obtained the VRO, she said that it was obtained about two or three weeks before 19 September 2008 (ts 37).
(c)The complainant did not have any contact with the appellant between the date on which the VRO was obtained and 19 September 2008 (ts 104 ‑ 105).
(d)On 20 September 2008, the day after the offences were committed, the complainant went to the Sexual Assault Referral Centre. On the evening of 20 September 2008, while she was at home, she heard the appellant call out her name. She thought that he had dropped off her bag. She told him to go away or she would call the police. Later, she found her bag on the doorstep of her home (ts 59 ‑ 60).
(e)On another occasion, on a date she could not recall, the appellant left a note for the complainant under the front door of her home. In the note, the appellant invited the complainant to meet him at a hotel room for the weekend. The complainant gave the note to the police (ts 61).
On 10 October 2008, with the assistance of the police, the complainant telephoned the appellant (ts 64). The police made a recording of the telephone call. At the trial, the prosecution played the recording to the jury. The recording was tendered by the prosecution and it became exhibit 6 (ts 64 ‑ 65). The prosecution relied on some of the material in the recorded telephone call as admissions by the appellant to the commission of some of the offences.
During the recorded telephone conversation, the complainant said:
Well I thought you'd already organised it all and I'm already to go. I was organising a lift to get out there because you know, I can't drive the car. (emphasis added)
The complainant was not cross‑examined in relation to this comment. She was, however, asked several questions in cross‑examination concerning her motor vehicle and whether, between the date on which she obtained the VRO and 19 September 2008, something had happened to make the vehicle unserviceable.
Also, it was put to the complainant in cross‑examination that about a week after she obtained the VRO:
(a)her relationship with the appellant recommenced after she had telephoned him late at night on 14 September 2008 or early in the morning on 15 September 2008, and told him she had damaged the underneath of her car by driving it onto a median strip or traffic island (ts102);
(b)she and the appellant had been together each night of the week before 19 September 2008 (ts 104); and
(c)their sexual relationship had resumed on 15 September 2008 (ts 105).
The complainant denied these propositions.
At the trial, the appellant gave evidence, relevantly, to the following effect:
(a)The appellant denied committing any of the offences. He admitted that sexual activity had occurred between the complainant and him on 19 September 2008, but he denied having had anal intercourse with her. The appellant said that the sexual activity was consensual (ts 246 ‑ 247, 251 ‑ 253).
(b)The appellant became aware on 10 September 2008 that the complainant had obtained the VRO (ts 273).
(c)The appellant said that on 14 September 2008 the complainant telephoned him and said that she had 'wrecked her car' (ts 229 ‑ 230).
(d)On 15 September 2008, the appellant met with the complainant at her home after a discussion between them by telephone that day (ts 230).
(e)According to the appellant, he had met with the complainant on every night of the week between 15 and 19 September 2008 and consensual sexual activity had occurred on each occasion (ts 235 ‑ 237).
(f)The appellant said that on 15 September 2008 he had seen the complainant's car in the garage at her home, and it did not have any obvious signs of damage (ts 236).
(g)The appellant denied driving the complainant's car when it was damaged (ts 236).
(h)According to the appellant, the complainant telephoned him about two or three days after 19 September 2008 and he met her later at a fast food restaurant. They discussed meeting again. Subsequently, he sent her a note suggesting that they meet at a hotel. He also went to the complainant's home and knocked at the front door. After an exchange with the complainant in the doorway of her home, he left (ts 253 ‑ 255).
The appellant's trial counsel, in the course of his closing address, sought to discredit the complainant's evidence that she had had no contact with the appellant between the date on which she obtained the VRO and 19 September 2008. Counsel sought to discredit this evidence by comparing it with her comment to the appellant in the recorded telephone call on 10 October 2008, and submitting that by this comment the complainant was asserting that the appellant knew she could not drive her car, and was an admission that she and the appellant had been in contact with each other between the date on which the VRO was obtained and 19 September 2008. Counsel said:
Or is it as [the appellant] said, there was contact? And there is a way of taking you to this, that there must have been contact of the sort that [the appellant] tells you about, and it's all to do with the motorcar. The motorcar is used to drop him off at work a couple times. That can only be the 4th and the 5th, because after that she says 'no contact'. The motorcar is obviously going then. Now, come 10 October, in the course of the call that was played into evidence, towards the end of it, it's on page 10 of 13 of the transcript, discussion about going to a motel room. And [the complainant] says: Well, I thought you'd already organised it all and I'm ready to go. I was organising a lift to get out there because, you know, I can't drive the car.
10 October. We know from the evidence that the car was out of action, don't we, because she says: Yeah, it was, but I don't know when. Don't know the circumstances, don't know the time of day, anything of that sort. But here, she's saying the car: I can't drive the car. She's not saying, 'I'm not allowed to drive': I can't drive the car. All right. So how does that ‑ why is that said in that way? Because it's not just, 'I can't drive the car': You know I can't drive the car. How does [the appellant] know that? If he hasn't had any contact with her, at the time of the restraining order or the day after, when she turned up in the motor car, he said, and it's working, until the evening of 19th ‑ and the car doesn't come into it on the 19th ‑ and then we have this comment being made.
And there's no evidence of discussion other ‑ from [the complainant]. [The appellant's] evidence is entirely different, of course. How does this get said? Why would it be said: You know, I can't drive the car. Now, that car has been damaged at some point, from the time of getting the restraining order when [the complainant] came back and 10 October. When was it damaged? Well, this, I think perhaps supports what it is that [the appellant] has to say, but he gets a call in the middle of the night of Sunday, 14 into 15 September: My life's fucked, my car's written off ‑ et cetera. He - you heard his evidence, and so, as a consequence of that, the next day, he goes out to [the complainant's address]. Now, out of the mouth of [the complainant] is evidence that supports what it is that [the appellant] has to say. Now, why do you think that [the complainant] was being so forgetful or so unable to remember details about the car and when it got damaged and even who she bought it from, unless there was something there perhaps she didn't want to tell us? (ts 458 ‑ 459).
The appellant's trial counsel then asserted that the complainant had deceived the appellant when she telephoned him on 10 October 2008 in that she did not mention that she was telephoning from a police station and she had no intention of meeting with him again. Counsel added:
Now, if she's capable of behaving like that on that particular day, what's the problem with coming to court and telling us stuff like where the car was bought, when it got damaged and so on? And how do you explain why it is that she says: You know, I can't drive the car. Unless it's as [the appellant] says: She rang me, complained about the situation with the car. And he sees it in the garage, unable to be moved. So did he go? Does that support his assertion that he stayed there from the night of the 15th or 16th, all day on the 17th, at home the night of the 17th, 18th, goes to work, 19th, as he'd done a couple of ‑ four of the other days of the week ‑ three of the other days - four in all, of the week, and comes back on Friday night to take her out for a meal because he's got his pay in his pocket and they go to the pub for a meal (ts 460).
Counsel made comments to similar effect on three other occasions in his closing address (ts 467, 468, 469).
After the appellant's trial counsel completed his closing address, the prosecutor complained to the trial judge that the appellant's trial counsel had not put to the complainant in cross‑examination that her comment to the appellant in the recorded telephone call on 10 October 2008, 'you know, I can't drive the car', meant she was asserting that the appellant knew she could not drive her car, and was an admission that she and the appellant had been in contact with each other between the date on which the VRO was obtained and 19 September 2008. The prosecutor elaborated that the appellant's trial counsel was submitting to the jury that they should conclude, on the basis of the complainant's comment in the recorded telephone call, that her oral evidence at trial to the effect that she and the appellant had not been in contact during the period in question was wrong.
The trial judge, in the course of his summing up, gave the jury this direction:
In the course of Mr Sutherland's closing address to you on Friday he drew your attention to the complainant's statement in the telephone intercept conversation which is exhibit 6 and you have that.
And I just want to say something about that aspect of the evidence. You will recall that Mr Sutherland referred you to a response made by the complainant in the course of the telephone conversation when she said: Well, I thought you'd already organised it all and I'm all ready to go. And she was referring there to the room which he had referred to in the note, and spending some time together. But she went on to say in her answer, 'I was organising a lift to get out there because you know I can't drive the car'. And Mr Sutherland suggested to you that you should infer from that comment. That is because you know that the complainant must therefore had [sic] been in contact with the accused after 8 September which obviously she in her evidence denied. He asked you rhetorically the question, 'How does she know', and suggested that this should be weighed up when considering her credibility and whether she is a witness of truth. What she said and what she meant by that comment was not put to her directly in the course of her cross examination by Mr Sutherland. And usually the rules of evidence require if there is to be a dispute about a matter to put it to a witness as a matter of fairness so that they have the opportunity to comment on it. So it's really a matter of fairness if you intend to contradict a witness about evidence that they have given, that you should give them an opportunity to comment on it.
Now, that was her evidence in the course of the telephone discussion. And you can listen to it if you wish. But she was not given the opportunity to comment on it directly, in the course of her cross examination. And that's no criticism of Mr Sutherland. There may be many reasons why that didn't happen. But you may wish to bear in mind what I've said about that when you come to use it, if you do, in the course of your deliberations. And how you use it in the course of your deliberations when you are considering whether to accept what Mr Sutherland urged upon you in the course of his closing submissions about that particular aspect of the evidence (ts 399 ‑ 400).
Ground 1 of the appeal: applicable legal principles
In R v Foley [2000] 1 Qd R 290; (2000) 105 A Crim R 1, de Jersey CJ, Thomas JA and Derrington J stated the essence of the so‑called rule in Browne v Dunn (1893) 6 R 67 HL, in the context of criminal proceedings, as follows:
[A] cross-examiner should put to an opponent's witness matters that are inconsistent with what the witness says and which are intended to be asserted in due course. It is generally necessary to give a witness who might be in a position to contradict the cross-examiner's case the opportunity to do so (Cf Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, 16, 17, 21, 23 and 26; R v Birks (1990) 19 NSWLR 677, 686, 688, 689, 691). Countermeasures become necessary when failure to observe the rule deprives the court of the opportunity of hearing relevant responses from the witness, or when unfair statements are made about a witness or the witness' evidence, or when it may give unfair advantage to a party who lies by and belatedly produces a version tailored to meet the evidence (290 ‑ 291).
In R v Thompson [2008] VSCA 144; (2008) 21 VR 135, Redlich JA said in relation to the application of the rule in Browne v Dunn in a criminal trial:
In a criminal trial the rule will become relevant during the cross-examination of any prosecution or defence witness whose evidence is to be contradicted by other evidence called by cross-examining counsel or otherwise challenged. The obligation will also arise where the cross‑examiner intends to adduce evidence as to the conduct of the witness which may be a matter of controversy. That conduct must be put to the witness. The rule rests upon notions of fairness. It is designed to give the witness, and the party calling that witness, an opportunity to meet that challenge and to facilitate the tribunal’s assessment of the reliability and accuracy of the witness (R v Demiri [2006] VSCA 64 at [36] per Redlich AJA). Where matters in controversy are not 'put' to the witness in cross‑examination, the tribunal's capacity to assess the credit of the witness is likely to be impeded (Johnson Matthey (Aust) Pty Ltd v Dascorp Pty Ltd (2003) 9 VR 171 at 200 per Redlich J). Any relaxation of the obligation to comply with this rule increases the risk of injustice to the witness and the party calling that witness [111].
See also R v Coswello [2009] VSCA 300 [3] (Nettle JA).
As the court noted in Foley, the cases do not clearly mark out how far counsel must go in putting the State's or the accused's case, as the case may be, to a witness (291). Their Honours then said:
We do not think it possible to suggest a universal formula or principle that will tell counsel the amount of detail that may need to be put from case to case. But plainly, if the essential elements of the eventual case are not put to witnesses who might have the capacity to cast doubt upon the case, a fair trial (ie a trial fair to both sides) has been jeopardised … (291).
See also the observations of Nettle JA in Coswello [4].
It is well‑established that the rule in Browne v Dunn must be applied with considerable care and circumspection in criminal proceedings, especially where defence counsel has not adequately put the defence case to the complainant or another prosecution witness. The rule does not apply in criminal proceedings in the same manner or with the same consequences as in civil litigation. See MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436 [18] (Gleeson CJ & Heydon J), [40] ‑ [41] (Gummow, Kirby & Callinan JJ); Coswello [7].
Where the rule in Browne v Dunn has been breached in a criminal trial, the manner in which the breach should be remedied will depend on the nature and extent of the breach and the particular facts and circumstances generally. This point was considered in Foley and also in R v Ferguson [2009] VSCA 198.
In Foley, the court said:
While variations in circumstances of particular cases may call for different responses, it is now generally recognised in criminal trials that in summing up on this issue, the judge should simply point out to the jury that the particular matter was not put to the relevant witness; that it should have been put so that the witness could have the opportunity of dealing with the suggestion; and that the witness has been deprived of the opportunity to give that evidence and that the court has similarly been deprived of receiving it (Cf R v McNamara (CCA (NSW), 15 December 1995, unreported)). There will be exceptional cases where it is necessary to go further, for example where there seems to be a tenable case of recent invention. There may for example be a strong perception that the cross‑examiner has deliberately preserved a case from damage by preventing it from being tested, and that this has enabled the client to lie by and present the case that belatedly seems opportune. The giving of additional directions in such cases is, however, fraught with difficulty.
'It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence … of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person's counsel' (Birks at 690).
…
There are of course ways and means of avoiding the necessity of presenting such issues to juries at the end of the trial. Sometimes it is possible to have a witness or witnesses recalled for cross-examination. Sometimes it may follow from the conduct of the trial that it is not fairly open to counsel to make a particular suggestion in address. Sometimes the reason for the omission is itself explored at trial, and if it can be seen that the omission reflects only on counsel (or solicitor) and not the accused, then the only available comment would relate to the potential disadvantage to the witnesses or to the Crown's case from the omission, with an express statement that this was not the fault of the accused but rather of counsel (291 ‑ 292).
In Ferguson, Maxwell P, Buchanan and Weinberg JJA made these comments:
What is necessary in any given case to ensure procedural fairness ‑ or to remedy a breach of its requirements ‑ will depend on the circumstances (R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552 ‑ 553). It has been said, moreover, that 'the notion of fairness … may have a somewhat different practical content in a criminal trial' (R v Birks (1990) 19 NSWLR 677 at 689 (Gleeson CJ)). And of course particular care will be required when (as here) it is the prosecution, rather than the defence, which has suffered the unfairness. The trial judge will wish to avoid adopting a remedy for unfairness to the prosecution which might itself work unfairness against the accused. That is, of course, precisely what is said to have occurred here.
There are various ways in which a breach of procedural fairness can be remedied (Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236 ‑ 7). The judge may draw the attention of counsel to the need to put matters fairly during the course of cross-examination. Sometimes, the issue does not arise until later in the trial as, for example, when it is sought to call evidence contradicting an earlier witness or, as in the present case, when it is sought to address the jury on a basis that ought to have been put in cross-examination. Sometimes, the interests of justice will be served by having a witness recalled for further cross-examination. In some cases, the only way in which the matter can be dealt with is by a direction to the jury in strong terms that it was not open to counsel, in the course of his or her final address, to advance a particular submission, while leaving it to the jury, in the final analysis to resolve the issue of fact concerned.
The course adopted by his Honour in the present case was an intermediate one. He invited the jury, when reflecting upon the defence submission that the police had not carried out a proper investigation, to consider the fact that that suggestion had not been put to any of the investigating officers. He did not comment strongly upon the failure to comply with the rule, as he might have done. In our view, the course adopted was appropriate to secure the object of remedying the unfairness, without making the trial unfair for Ferguson [276] ‑ [278].
In R v Morrow [2009] VSCA 291, defence counsel failed to put to the complainant in a sexual assault case the substance of evidence which the accused later gave as to the timing and circumstances of various acts of sexual intercourse which he admitted having had with the complainant. The Court of Appeal of Victoria held that it was open to the trial judge to direct the jury that they could take the 'lack of puttage' into account in assessing the weight to be attached to the accused's evidence on those matters [3]. Nettle JA noted, however, that this did not mean that it was generally appropriate for a trial judge to make a comment to the effect that an adverse inference as to credibility may be drawn against the accused [4]. This point was also emphasised by Redlich JA (Nettle JA & Lasry AJA agreeing):
The terms in which a party’s counsel cross-examines a witness for the opposite side are sometimes said to reveal the version of events with which the party has instructed that party’s counsel (R v Robinson [1977] Qd R 387 at 394; R v MAP [2006] QCA 220). But the dangers attendant upon a direction in a criminal trial about non-compliance with the rule in Browne v Dunn are well-recognised. Having regard to the essentially accusatory character of a criminal trial, the rule can only be applied with serious qualifications. Trial judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with the rule. Neither should the trial judge ordinarily instruct the jury that the conduct of the case is something from which they may draw inferences (R v MAP; see R v SWC[2007] VSCA 201 [16] ‑ [18]) [57].
See also his Honour's comments at [59] ‑ [71].
Ground 1 of the appeal: its merits
In my opinion, ground 1 of the appeal has no prospect of success. My reasons are as follows.
First, the expression 'you know' which the complainant used in the recorded telephone conversation on 10 October 2008 is, at least arguably, ambiguous. The expression may imply something generally known or known to the hearer. Alternatively, the expression may be used as a gap‑filler in conversation. Although the apparent ambiguity may have been removed by the complainant's vocal intonation or emphasis, the meaning which she intended to convey required investigation at the trial if the particular meaning formed a material part of the prosecution's or the appellant's case.
Secondly, the appellant's trial counsel was obliged, but failed, to comply with the rule in Browne v Dunn in that he submitted to the jury in his closing address that the complainant's statement in the recorded telephone call, 'you know, I can't drive the car', meant that she was asserting the appellant knew she could not drive her car, and was an admission that she and the appellant had been in contact with each other between the date on which the VRO was obtained and 19 September 2008. Counsel should have, but failed to, put to the complainant in cross‑examination that:
(a)the meaning contended for by counsel was in fact the meaning the complainant intended to convey; and
(b)her statement in the recorded telephone call was inconsistent with her oral evidence at the trial to the effect that she did not have any contact with the appellant during the period in question.
Thirdly, the trial judge was entitled, in the particular circumstances, to draw the jury's attention to the appellant's trial counsel's failure to comply with the rule in Browne v Dunn, and to direct them that they could take into account the failure to put the relevant matters in assessing the weight to be attached to the complainant's evidence on those matters.
Fourthly, the trial judge did not make a comment to the effect that an adverse inference as to credibility may be drawn against the appellant or, indeed, any other comment prejudicial to the interests of the appellant.
Fifthly, the trial judge was careful not to criticise the appellant's trial counsel in the course of his directions. His Honour did not, on any reasonable view, 'chastise' counsel.
Ground 2 of the appeal
The evidence of Dr Lumsden was necessary to enable the jury properly to appreciate and evaluate the evidence which her opinions addressed.
There is no rule of law that at every criminal trial in which expert opinion evidence is adduced the trial judge must give a direction that the weight to be given by the jury to expert evidence, whether contested or uncontested, is exclusively a matter for the jury, and the jury is not bound to accept the expert's opinion. See Middleton v The Queen [2000] WASCA 213; (2000) 114 A Crim R 258 [49] (Anderson J, Kennedy & Wheeler JJ agreeing).
Although, in the present case, the jury were not bound to accept and act upon the evidence of Dr Lumsden, her evidence was uncontested (that is, there was no expert evidence to the contrary) and the jury were not entitled capriciously to disregard it. See Hall v The Queen (1988) 36 A Crim R 368, 370 (Roden J); Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 [124] (Miller JA, Steytler P relevantly agreeing & Wheeler JA agreeing); R v Klamo [2008] VSCA 75; (2008) 18 VR 644 [44] (Maxwell P, Vincent JA agreeing).
I agree with Jenkins J, for the reasons she gives, that ground 2 has no prospect of success. The trial judge's approach to Dr Lumsden's evidence, and to the evidence generally, in his summing up did not adversely affect the fairness of the appellant's trial or occasion a miscarriage of justice.
JENKINS J: On 6 August 2009, after trial in the District Court, the appellant was convicted of one count of robbery, one count of aggravated home burglary and two counts of sexual penetration of the complainant without her consent. The appellant appeals against his convictions.
Grounds of appeal
On 18 September 2009, Owen JA referred the appellant's application for leave to appeal, on the following grounds, to the hearing of the appeal:
1.The learned trial judge erred both in law and in fact, and there was a miscarriage of justice, in his application of the principle established in Browne v Dunn (1896) 6 R 67;
Particulars
a)the Appellant relied upon a comment uttered by the complainant during a telephone call she made to the Appellant, which call was recorded ('the comment');
b)His Honour directed the jury the complainant had not been asked in cross‑examination what she meant by the comment;
c)there was no obligation on the Appellant to clarify what the complainant meant by the comment.
2.The learned trial Judge erred both in law and in fact, and there was a miscarriage of justice, when he failed to adequately direct the jury that they did not have to accept the expert opinion of Dr Angela Jane Lumsden, such that there was a danger the jury would feel obliged to accept it.
The State's case
The appellant and the complainant were in an intermittent sexual relationship for about eight months. They broke up two to three weeks before the offences occurred on 19 September 2008. The complainant went to court and obtained an interim Violence Restraining Order against the appellant (the VRO).
On the evening of 19 September 2008, the complainant went to a tavern which was within walking distance of her home in a suburb, south of Perth. After a short time, the complainant saw the appellant walk into the tavern. The complainant left the tavern and walked to a liquor store, which was a couple of minutes away. She purchased some liquor and waited for a taxi which had been ordered by a shop assistant on her behalf.
Whilst she was waiting inside the store, the appellant approached her and spoke to her. She was frightened and pulled away from him. The complainant was carrying a handbag inside of which were her house keys, car keys, purse containing approximately $500, telephone and other personal items. It did not contain any of the appellant's property. The appellant grabbed hold of the bag and pulled it towards him. The complainant kept hold of it and this resulted in her being dragged out of the liquor store. Once outside, the appellant grabbed the complainant with both of his arms and pushed her on to the ground. There was a struggle for the bag. The appellant managed to wrestle the bag from the complainant and he ran off with it. Those facts constituted the offence of robbery.
The police were called to the liquor store and an officer subsequently took the complainant to her home. The police officer left and the complainant broke a window at the back of her home in order to gain entry. The complainant used her foot to break the window and as a consequence she cut her lower calf area. The police officer returned with his partner and they bandaged the cuts before they left. The complainant went to a friend's house for a couple of hours. She consumed a couple of glasses of wine at her friend's house. Her friend then dropped her back home. At that stage, there was no one else in her house.
The complainant went and lay down on a couch and watched television. The next thing the complainant recalled was hearing someone creeping down her hallway. She turned around and saw the appellant there. He ran around the couch on which the complainant was lying and grabbed her. He picked her up and threw her down on to the ground. He lay on top of her, grabbed her throat, pinched her nose and then covered her face. The complainant kicked and struggled because she thought she was going to die. She also saw a knife to her left, which had been in the kitchen prior to the appellant's arrival.
The appellant picked the complainant up and punched her left eye. He put her back on the lounge, lifted her skirt, pulled aside her underwear and penetrated her anus with his penis.
The appellant turned the complainant over and penetrated her vagina with his penis. The complainant gave evidence that she was screaming for the appellant to stop and he then threatened to kill her.
The appellant grabbed the back of the complainant's head and forced his penis into her mouth. After that, the appellant penetrated her vagina again. He withdrew prior to the point of ejaculation and masturbated himself until he ejaculated on to the complainant.
The appellant then demanded that the complainant take a shower. He pressed the knife into her back as she walked to the bathroom. He watched the complainant shower. They then went back into the lounge room and lay down on a mattress which was on the floor in front of her television. The complainant said she did that because she did not want to die. She turned her back to the appellant and pretended to go to sleep. The appellant then left and the next thing that the complainant remembered was seeing police or ambulance officers. She could not remember how they had got to her home.
Those facts constituted the offence of aggravated home burglary and the two counts of sexual penetration without the complainant's consent; constituted by anal and vaginal intercourse. The appellant was tried on two further charges of sexual penetration without consent relating to the incidents of oral sex and the second vaginal penetration. The appellant was acquitted of those two charges.
There were a number of circumstances of aggravation charged in conjunction with the offence of burglary. The jury found that the State had failed to prove that the appellant was armed with a knife and that he had threatened to kill the complainant. There were also circumstances of aggravation charged in conjunction with the sexual penetration offences. The jury found that it was not proven that the appellant threatened to kill the complainant but that it was proven that he did bodily harm to the complainant.
The defence case
Immediately after the State's opening, defence counsel opened the case on behalf of the appellant. He acknowledged that the complainant and the appellant had been in a relationship. He said that there were problems in the relationship due to the consumption of alcohol and other drugs and that on one occasion, they had had an argument about the use of a motor car. The following day whilst the appellant was at work and without his knowledge, the complainant obtained the VRO.
Counsel said that there was further contact between the parties after that date. He said that on the night in question, the appellant took the complainant's handbag because it contained his money but he did not intend to keep the handbag. Defence counsel said that the appellant said that the other offences did not happen as the complaint said they did.
At the end of the State' case, the appellant gave evidence in his defence. He said that on 19 September 2008, he picked the complainant up from her home in a taxi and together they went to the tavern for dinner. He said that whilst they were there, the complainant received a text message on her phone. He read it, got angry and an argument developed. Whilst he was in the bathroom, the complainant took $200 from his wallet and left the table. When he returned, he realised what she had done and pursued her, to seek the return of his money.
The appellant went to the nearby liquor store and took the complainant's handbag from her, in order to retrieve his money. He said he had no intention of permanently depriving the complainant of her handbag.
Later that evening, the complainant phoned the appellant and asked him to get some drugs for her. He went to her home to see her. She let him in through the front door. Whilst there, he used a knife to cut a bandage from the complainant's leg and together they attempted to put a new bandage on her leg.
The appellant said that consensual sexual activity then occurred. First, he masturbated and then he had vaginal intercourse with the complainant. He said that he noticed he had blood on his shirt and on his leg, so he went and showered. The complainant also showered. The appellant denied that anal sex occurred between them that evening.
The appellant told the complainant not to worry about the drugs and to go to sleep. The complainant told him she would take some sleeping pills instead. The complainant went and got her pills. The appellant tried to take them from her. They struggled over the bottle of pills and both fell to the ground. They talked for a while and then fell asleep.
The appellant also called a taxi driver who gave evidence that on a Friday night in 2008 he picked up the appellant and took him to an address which was consistent with the complainant's address. He said that there he picked up a young woman and dropped her and the appellant at the tavern.
Ground 1
At trial, there was an issue between the parties as to whether the appellant and the complainant had an ongoing sexual relationship between the date the complainant obtained the VRO and the date of the offences. The date on which the offences occurred was 19 September 2008. The complainant could not recall the exact date she obtained the VRO. She said that she obtained it two to three weeks before 19 September 2008 (ts 37). The appellant said that it was obtained on 8 September 2008 (ts 265).
The complainant's evidence was that in the intervening period she did not have any contact with the appellant (ts 104). The appellant's evidence was that they met every night in the week prior to the offences and sexual activity occurred on each occasion (ts 233 ‑ 237).
One way that the appellant sought to discredit the complainant's account of their relationship during this time was to establish that there had been some contact between them, whether or not it included sex.
Before referring to the evidence of the contact between the parties between those dates, it is relevant to note that there was also evidence of contact between the appellant and the complainant after the night of the offences. The complainant gave evidence that on 20 September 2008, the day after the offending, she went to the Sexual Assault Referral Centre (SARC) and then came home. She said that evening she was in her house and she heard the appellant yell out her name. She was very vague about the details, but she said that she thought that he had dropped her bag off at her house. She said that she told him to go away or she would call the police. She said that she found her bag on the doorstep (ts 60).
She said that on another occasion, on a date which she could not recall, the appellant left her a note underneath her front door. It invited her to meet him in a room at a hotel for the weekend (ts 61).
The complainant said that she gave the note to the police. On 10 October 2008 with the assistance of the police, she telephoned the appellant and the call was recorded. The recording was played to the jury and became exhibit 6 (ts 64). There was material in the recording which the State relied upon as constituting admissions to some of the offences.
Relevant to this ground, the complainant and the appellant spoke about meeting up at the hotel. During that part of the discussion, the complainant said:
Well I thought you'd already organised it all and I'm already to go. I was organising a lift to get out there because you know, I can't drive the car.
During examination‑in‑chief, the complainant was not asked any questions concerning her above comment. In cross‑examination, the complainant was asked a series of questions concerning her motor vehicle and whether, between the date she obtained the VRO and 19 September 2008, something had happened to it to make it unserviceable. The passage of evidence was as follows:
Around about that time did something happen to render your car unserviceable‑‑‑I know my car was unserviceable because of [the appellant].
Isn't it the case that you damaged it by driving it onto a median strip or an island somewhere, damaged it underneath‑‑‑No, that wasn't me.
It did happen, did it, that your car became unserviceable, couldn't be driven‑‑‑I remember my car was undriveable.
And it got put in the car port at [the complainant’s home] ‑‑‑Yes.
Yes. And when do you say that happened‑‑‑Pardon?
When did that happen‑‑‑I can't remember exactly when that was.
Were you present when it happened‑‑‑Yes, I was.
Where did it happen‑‑‑Not very far away from where I lived.
Who was driving it‑‑‑[The appellant].
That's not the truth is it‑‑‑Yes, it is the truth.
You damaged that car and you rang [the appellant] to explain that you had problems, you'd wrecked your car‑‑‑I don't recall that at all.
And that's between - that was after the restraining order, isn't that the case‑‑‑No, not that I'm aware of.
Isn't it the case that you had driven to [a hotel] for tea the day before you got the restraining order‑‑‑Not that I'm aware of. No, I can't remember that.
So the car was running was it not, the day before you got the restraining order‑‑‑I don't know.
How did you get to the [courthouse] ‑‑‑I can't remember. I'm not sure.
Well just cast your mind back, where did you wake up on the morning that you got the restraining order‑‑‑(Inaudible) I don't know.
Who did you go to the courthouse at [omitted] with to get the restraining order‑‑‑I know I had a lady called, Vicky with me.
Did you pick Vicky up and take her to the court with you‑‑‑I can't remember. All I know is I know the lady that was at the courthouse was there to help me.
Do you recollect [the appellant] getting his phone out of your car after you got the restraining order, at [the complainant’s home] ‑‑‑No, I don't.
What day of the week was it, that you car got damaged‑‑‑I don't know.
What time of the day was it‑‑‑I have no idea (ts 102 ‑ 103).
It was also put to the complainant that approximately a week after she obtained the VRO, her relationship with the appellant recommenced after she rang him to tell him about her car accident. It was put to her that she and the appellant had been together each night of the week prior to the date the offences occurred (ts 104). It was also put to her that their sexual relationship resumed on Monday, 15 September 2008. The complainant denied these allegations (ts 104 ‑ 105).
The complainant was asked whether she had walked to the tavern on the night of the offences because her car was not working. She said 'I don't know about that. All I know is that it was just close enough for me to walk there so I walked' (ts 108).
The complainant was also cross‑examined about a meeting she allegedly had with the appellant at a fast‑food restaurant near her home on the Monday or Tuesday after the date of the offences. The complainant said she did not remember that meeting (ts 120).
In re‑examination, the complainant said that she had not seen the appellant from the time she obtained the VRO to the date of the offences. However, the complainant said that the appellant would come to her door, knock at the door and run off. She said that she did not see him but she heard him outside her home (ts 125).
The two police officers, who attended at the liquor store and later at the appellant's home on 19 September 2008, gave evidence for the prosecution. Both officers said that when they attended the complainant's home they entered her house through a door which led from the garage into the house (ts 131). One officer said that he could not recall whether the garage roller door was up or down (ts 131), but the other officer said that the roller door was up (ts 136). The police officer who attended the complainant's home on the morning of 20 September 2008 said that he entered the house through the garage and that the roller door was up (ts 172). None of the police officers were questioned about whether there was a car in the garage and, if so, its condition. The jury were also shown photographs of the complainant's home which were taken after the date of the offences. One of these photographs shows the front of the complainant's house with a garage that either does not have a roller door or on which the roller door is in the open position (ts 52). It is not possible to see the inside of the garage.
When the appellant gave evidence he said that on Sunday night, 14 September 2008, the complainant telephoned him and told him that she had 'wrecked her car' (ts 229). He said that the car had been apparently working when he had seen it the previous Tuesday. The appellant said that after that he saw the complainant every day that week and they had sex (ts 237). He said that on the Monday of that week he saw the complainant's car in the garage and that it did not have obvious signs of damage (ts 236). He denied driving the car at the time it was damaged (ts 236).
The appellant admitted to being at the complainant's house on 19 September 2008, the night the offences occurred. He agreed that they had sex but said that it was consensual. In the morning, the appellant said he asked the complainant where the 'buzzer' was for her garage door. The complainant said she did not know where it was and so he said that he left out the back door and jumped over the fence (ts 250).
The appellant said that two or three days later the complainant telephoned him and he subsequently met her at a fast‑food restaurant (ts 253). They discussed meeting again and sometime later he wrote her the note suggesting that they meet in a hotel. He said that he went around to the complainant's home and knocked on the front door. After exchanging words with the complainant in the doorway, the appellant left (ts 254 ‑ 255).
Defence counsel asked the appellant questions about the recorded telephone conversation on 10 October 2008. He was asked what he meant by some of his comments (ts 255). His counsel did not ask the appellant anything about the complainant's comment about him knowing that she could not drive her car.
In cross‑examination, the appellant said that on 9 September 2008 he was at the complainant's home when he heard the garage door go up. The complainant drove into the garage and entered the house through the side door (ts 272). He said that he grabbed his phone out of her car and then walked to his cousin's house (ts 272). Essentially, he said that he terminated the relationship at that time (ts 273) and he only found out from the police that the complainant had obtained the VRO against him (ts 273).
The appellant confirmed that the next time he spoke to the complainant was on Sunday, 14 September 2008 around 2.00 am when she telephoned him (ts 274) and told him that she had 'written her car off' (ts 275). The remainder of the appellant's evidence was consistent with his examination‑in‑chief.
In defence counsel's closing address, counsel sought to discredit the complainant's evidence that she had no contact with the appellant between when she got the VRO and 19 September 2008, the date of the offences, by contrasting it with her comment in the recorded telephone call that the appellant knew she could not drive her car. After mentioning the former version of events, defence counsel said:
Or is it as [the appellant] said, there was contact? And there is a way of taking you to this, that there must have been contact of the sort that [the appellant] tells you about, and it's all to do with the motorcar. The motorcar is used to drop him off at work a couple times. That can only be the 4th and the 5th, because after that she says 'no contact'. The motorcar is obviously going then. Now, come 10 October, in the course of the call that was played into evidence, towards the end of it, it's on page 10 of 13 of the transcript, discussion about going to a motel room. And [the complainant] says: Well, I thought you'd already organised it all and I'm ready to go. I was organising a lift to get out there because, you know, I can't drive the car.
10 October. We know from the evidence that the car was out of action, don't we, because she says: Yeah, it was, but I don't know when. Don't know the circumstances, don't know the time of day, anything of that sort. But here, she's saying the car: I can't drive the car. She's not saying, 'I'm not allowed to drive': I can't drive the car. All right. So how does that - why is that said in that way? Because it's not just, 'I can't drive the car': You know I can't drive the car. How does [the appellant] know that? If he hasn't had any contact with her, at the time of the restraining order or the day after, when she turned up in the motor car, he said, and it's working, until the evening of 19th - and the car doesn't come into it on the 19th - and then we have this comment being made.
And there's no evidence of discussion other - from [the complainant]. [The appellant's] evidence is entirely different, of course. How does this get said? Why would it be said: You know, I can't drive the car. Now, that car has been damaged at some point, from the time of getting the restraining order when [the complainant] came back and 10 October. When was it damaged? Well, this, I think perhaps supports what it is that [the appellant] has to say, but he gets a call in the middle of the night of Sunday, 14 into 15 September: My life's fucked, my car's written off - et cetera. He - you heard his evidence, and so, as a consequence of that, the next day, he goes out to [the complainant’s home]. Now, out of the mouth of [the complainant] is evidence that supports what it is that [the appellant] has to say. Now, why do you think that [the complainant] was being so forgetful or so unable to remember details about the car and when it got damaged and even who she bought it from, unless there was something there perhaps she didn't want to tell us? (ts 458 ‑ 459)
Defence counsel then went on to mention the extent of the complainant's deception to the appellant when she telephoned him on 10 October. That is, that she did not mention to him that she was in a police station and had no intention of meeting up with him. Defence counsel continued:
Now, if she's capable of behaving like that on that particular day, what's the problem with coming to court and telling us stuff like where the car was bought, when it got damaged and so on? And how do you explain why it is that she says: You know, I can't drive the car. Unless it's as [the appellant] says: She rang me, complained about the situation with the car. And he sees it in the garage, unable to be moved. So did he go? Does that support his assertion that he stayed there from the night of the 15th or 16th, all day on the 17th, at home the night of the 17th, 18th, goes to work, 19th, as he'd done a couple of - four of the other days of the week - three of the other days - four in all, of the week, and comes back on Friday night to take her out for a meal because he's got his pay in his pocket and they go to the pub for a meal (ts 460).
Defence counsel mentioned the issue on another three occasions in his address (ts 467, 468, 469). At the conclusion of defence counsel's address to the jury, the prosecutor complained to the trial judge that it had not been put to the complainant in cross‑examination that her comment to the appellant in the recorded telephone conversation that the appellant knew she could not drive the car (ts 348) was an admission that she and the appellant had been in contact with each other between the date of the VRO and 19 September 2008. The prosecutor said that the defence was asking the jury to conclude that because of that comment in the recorded telephone conversation, the complainant must have been wrong when she said that she and the appellant had not been in contact in that period (ts 349, 350).
Defence counsel submitted that he was entitled to ask the jury to draw inferences from the evidence, bearing in mind that he was not seeking to prove any particular fact but simply seeking to cast doubt on the prosecution case (ts 351).
In response to the prosecutor's submission, the trial judge gave the following direction to the jury:
In the course of Mr Sutherland's closing address to you on Friday he drew your attention to the complainant's statement in the telephone intercept conversation which is exhibit 6 and you have that.
And I just want to say something about that aspect of the evidence. You will recall that Mr Sutherland referred you to a response made by the complainant in the course of the telephone conversation when she said: Well, I thought you'd already organised it all and I'm all ready to go. And she was referring there to the room which he had referred to in the note, and spending some time together. But she went on to say in her answer, 'I was organising a lift to get out there because you know I can't drive the car'. And Mr Sutherland suggested to you that you should infer from that comment. That is because you know that the complainant must therefore had been in contact with the accused after 8 September which obviously she in her evidence denied. He asked you rhetorically the question, 'How does she know', and suggested that this should be weighed up when considering her credibility and whether she is a witness of truth. What she said and what she meant by that comment was not put to her directly in the course of her cross‑examination by Mr Sutherland. And usually the rules of evidence require if there is to be a dispute about a matter to put it to a witness as a matter of fairness so that they have the opportunity to comment on it. So it's really a matter of fairness if you intend to contradict a witness about evidence that they have given, that you should give them an opportunity to comment on it.
Now, that was her evidence in the course of the telephone discussion. And you can listen to it if you wish. But she was not given the opportunity to comment on it directly, in the course of her cross‑examination. And that's no criticism of Mr Sutherland. There may be many reasons why that didn't happen. But you may wish to bear in mind what I've said about that when you come to use it, if you do, in the course of your deliberations. And how you use it in the course of your deliberations when you are considering whether to accept what Mr Sutherland urged upon you in the course of his closing submissions about that particular aspect of the evidence (ts 399 ‑ 400).
The parties' submissions on ground 1
The appellant submits that the trial judge erred in 'chastising' defence counsel to the jury in his summing up. He says that it was not the obligation of defence counsel to clear up or resolve any inconsistencies in the complainant's evidence. He says that it was open for defence counsel to make the submission that he did and to ask the jury to consider what the complainant meant by the comment in the recorded telephone conversation. He says that the prosecutor could have clarified the point in re‑examination if she had wished to do so.
The appellant says that the trial judge's comment to the jury transgressed the principles stated in MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436.
The respondent submits that MWJ can be distinguished on the facts of this case as there was no inconsistency in the prosecution case. It was the appellant who alleged that he and the complainant had been in contact between the time of the restraining order and the date of the offences, contrary to the prosecution case.
The respondent says that the complainant gave unambiguous evidence that it was the appellant who damaged her vehicle and rendered it unserviceable. In those circumstances, if the appellant wished to contend that the statement made by the complainant in the recorded telephone conversation on 10 October 2008 was an admission that she had been in contact with the appellant between the date of the VRO and the date of the offences, that proposition should have been put to her in cross‑examination. As it was not put to the complainant but the jury were asked by defence counsel to draw that inference, it was open and proper for the trial judge to make the challenged observations to the jury.
Legal principles applicable to ground 1
The appellant contends that the trial judge inappropriately applied the rule in Browne v Dunn (1893) 6 R 67 HL. The High Court considered the application of the rule in MWJ. In the latter case, the appellant was convicted of three sexual offences which occurred at certain premises. He was acquitted of an offence alleged to have occurred earlier at other premises in Sutcliffe Street. The complainant had given evidence of the four offences. The appellant contended that the complainant's evidence was that only one offence had occurred at Sutcliffe Street. The complainant had complained to her mother about other sexual misconduct that occurred at Sutcliffe Street. Thus, it was said that there was an inconsistency between the complainant's evidence and the mother's evidence concerning the complainant's complaint to her. The complainant was not cross‑examined about the other sexual misconduct at Sutcliffe Street which her mother subsequently said the complainant had told her about. However, in her final address, defence counsel relied on the inconsistency between the evidence of the complainant and the evidence of her mother.
The case was heard by a judge, sitting without a jury. The trial judge found that the supposed inconsistencies did not in truth exist. Before reaching that conclusion, the trial judge noted that if there had been inconsistencies, it would have been unfair to use them to impugn the credit of the complainant as what was put to the trial judge in respect to the alleged inconsistencies should also have been put to the complainant.
On appeal, Doyle CJ said that the trial judge 'wrongly treated the failure to cross‑examine [the complainant] as precluding the use of the inconsistencies to impugn her evidence'. His Honour said that the fact that the inconsistencies were not put to the complainant was something to be taken into account in assessing the weight to be given to the inconsistencies. It was open to counsel for the appellant to have the complainant recalled for further cross‑examination. She did not do so. The consequence was not that the inconsistencies should be ignored, but that the failure to put the inconsistencies to the complainant had to be taken into account.
In the High Court, Gummow, Kirby and Callinan JJ said that the trial judge's criticism of the appellant's failure to give the complainant an opportunity to explain away the inconsistencies arising out of her mother's evidence was ill‑founded. This was because it was not the appellant's obligation to resolve inconsistencies in the case for the prosecution. Secondly, their Honours held that the trial judge erred in holding that avoidance of unfairness to the complainant prevailed over an adherence to the rules of evidence. Their Honours said that it was not for a judge to depart from the rules of evidence on such a basis as '[t]he rules are designed to ensure fairness to all, certainly not least, to an accused in a criminal trial' [36] ‑ [37].
Referring to the rule in Browne v Dunn, their Honours said:
The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit.
One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non‑compliance with it. A further corollary of the rule is that not only will cross‑examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her. An offer to tender a witness for further cross‑examination will however, in many cases suffice to meet, or blunt a complaint of surprise or prejudice resulting from a failure to put a matter in earlier cross‑examination. In this case, the appellant was confronted with a forensic dilemma: whether to seek to have the mother's evidence of her daughter's assertions of repeated misconduct at Sutcliffe Street excluded by reason of its prejudicial effect, or deliberately to leave it untouched to provide a basis for a submission that a fundamental inconsistency tainted the whole case. In the event the appellant chose the former. In that endeavour he failed, but was still able, albeit unsuccessfully, to rely on it as setting up a significant inconsistency. On no view was the appellant obliged however to seek to have the complainant recalled as a condition of his reliance upon the inconsistency which had emerged in the case for the prosecution.
Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross‑examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice [38] ‑ [40].
Their Honours said that Doyle CJ's criticism of the appellant for not putting the inconsistencies between the complainant and her mother to the complainant did not:
[G]ive due weight to the obligations of the prosecution to which we have referred. It is not for the defence to clear up, or resolve inconsistencies in the case for the prosecution. As soon as the inconsistency emerged, and the trial judge rejected the appellant's objection to the evidence intended to be adduced from the complainant's mother, it was open for the prosecution to offer to tender the complainant for further cross‑examination. Had that happened it would then, and only then have been for the appellant, to decide whether to embrace the offer or not. If he had not, then and only then would the criticism that the Court of Criminal Appeal made of his conduct have been valid. The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country [41].
Resolution of ground 1
There is a significant difference between the facts of MWJ and this case. In this case, there was no inconsistency between what the complainant said to the appellant in the recorded telephone conversation and the balance of her evidence. The comment she made to the appellant in the recorded telephone conversation was to the effect that he knew she could not drive her car as of 10 October 2008. In cross‑examination, the complainant said that she did not know when her car became unserviceable. Her evidence left open the possibility that her car became unserviceable before the date she obtained the VRO. In any event, she said that the appellant had made her car unserviceable. Even if the jury did not accept that evidence, her evidence left open the possibility that the appellant had found out that the complainant's car was unserviceable on or after 19 September 2008.
Defence counsel's address to the jury assumed the truth and accuracy of the appellant's evidence that the complainant's car was serviceable the week before he and the complainant broke up and his evidence that it became unserviceable in the period between the complainant taking out the VRO and the date of the offences. The complainant's evidence did not leave the latter version of events open as a possibility in that she denied that there had been any contact between her and the appellant during that period. The complainant could not recall when the car was damaged. Thus, the evidentiary basis for defence counsel's submission to the jury only arose from the appellant's evidence.
Consequently, the inconsistency, such as there was one, was between the evidence of the complainant and the evidence of the appellant.
Defence counsel urged the jury to draw an inference adverse to the complainant from the evidence, including her evidence that she said to the appellant on 10 October 2008 that he knew that she could not drive her car. The rule in Browne v Dunn, if it was applicable, required the appellant to give 'appropriate notice' to the complainant of that adverse inference.
On one view of the evidence, the complainant had an adequate opportunity to give evidence about the relevant issues as it logically followed from her testimony that the appellant damaged her car, that the appellant knew that she could not drive it. However, there may have been other reasons for the complainant's comment to the appellant in the recorded telephone conversation. For example, it could have been that the complainant knew that the appellant had seen that the car was damaged when he had been at her home after 19 September 2008 or there may have been a reason other than damage to the car for her inability to drive it. By giving these examples I do not mean to speculate about such matters but simply to indicate that without the issue having been put squarely to the complainant, it is not possible to say that she was given appropriate notice of the imputation so as to enable her to respond to it. In his closing address, defence counsel even urged the jury not to 'imagine' other explanations for the complainant's comment (ts 469).
This submission was unfair as the complainant had not been given an opportunity to give an explanation for her comment in the context of the appellant's evidence. Defence counsel should have put to the complainant the defence position, that was, that the reason that she told the appellant on 10 October 2008 that he knew that she could not drive the car was because she had told him that she had damaged it in the period between when she obtained the VRO and 19 September 2008.
The next question is whether the trial judge's comment to the jury about this matter went beyond what was permitted as judicial comment in response to the defence counsel's omission.
First, this was not a case where it was practical or appropriate for the prosecution to seek to recall the complainant. As I have explained, the inconsistency, such as it was, was not in the State's case but rather between the complainant's evidence and the appellant's evidence. The adverse inference which the defence sought to draw from the complainant's comment in the recorded telephone conversation only became apparent during defence counsel's address to the jury. Unlike MWJ, the prosecution could not have sought to resolve the inconsistency by recalling the complainant during the State's case. Although the High Court has said that courts are usually inclined to allow a re‑opening to call evidence considered to be of sufficient importance, even after addresses (Mahmood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397 [15], the recalling of the complainant after addresses would have been a deviation from the trial process as provided for in the Criminal Procedure Act 2004 (WA), s 112 and 145, would have contravened the general principle that the prosecution should not split its case and, in all likelihood, have placed undue and incurable emphasis on the complainant's evidence to the detriment of the appellant.
Secondly, the trial judge's comment to the jury was just that. It was not couched in terms of a direction on the law. It was prefaced by the comment that the trial judge wished to say something about an aspect of the evidence. The trial judge had previously told the jury that anything he said or might comment on about the evidence was not binding on the jury (ts 365, 371). After reminding the jury of the complainant's evidence and defence counsel's submission in respect to it, his Honour told the jury that what the complainant meant by her comment was not put to her directly in the course of her cross-examination by Mr Sutherland. There can be no objection to that statement as it was the truth. His Honour then went on to say that usually the rules of evidence provide that if there is to be a dispute about a matter it should be put to a witness as a matter of fairness so that they have an opportunity to comment on it (ts 400). To the extent that that was a statement of law, there can be no criticism of it as it is correct.
The trial judge said that his comments were not a criticism of defence counsel and there may have been many reasons why the allegation was not directly put to the complainant.
In my opinion the appellant has failed to make out a complaint in this ground that the trial judge chastised or criticised defence counsel. The trial judge was at pains to point out that he was not doing so (ts 400).
The trial judge then said that the jury may wish to bear in mind what he had said when it came to use the complainant's evidence in this respect, if it did, in the course of its deliberations. The effect of the comment was to tell the jury that when they were considering whether to draw the adverse inference that defence counsel had asked them to draw, they may take into account that the complainant had not been given an opportunity to comment on part of her evidence that was directly relevant to the drawing of that adverse inference.
There was nothing unremarkable or inappropriate about that comment. It did not suggest to the jury that the defence had an obligation to resolve inconsistencies in the case for the prosecution. Neither was the direction as strong as Doyle CJ's approach in MWJ, which was criticised by the High Court. In any event, this case is distinguished from MWJ because this was not a case of an inconsistency in the prosecution case. It was an inconsistency between the evidence of the appellant and the complainant which was not fully exposed until defence counsel's closing address.
Lastly, contrary to the contention of the appellant, the trial judge did not inappropriately apply the rule in Browne v Dunn. One aspect of the rule in Browne v Dunn is the rule of practice or procedure to which the trial judge referred. The second aspect of the rule is that if a witness is not cross‑examined in relation to a particular matter upon which he has given evidence, then that circumstance is often a very good reason for accepting the evidence of that witness upon that matter, although there is no requirement in law that the tribunal of fact must accept the evidence: Merrey v The State of Western Australia [2010] WASCA 62 [8] ‑ [11]. In this case, the trial judge did not apply this second aspect of the rule by telling the jury that the failure of defence counsel to cross‑examine the complainant on her comment would be a very good reason for accepting the evidence of the complainant on that issue. All that the trial did was to suggest to the jury that they 'may wish to bear in mind' what the trial judge had said about the rule of procedure when they came to use the complainant's evidence and when they were considering whether to accept what defence counsel had urged upon them. In this respect, the trial judge's direction was an appropriate response to the issue. To the extent that it was an application of the rule in Browne v Dunn, the trial judge applied the rule with 'serious qualification' and did not contravene anything that was said in MWJ. There being no breach of the rule in Browne v Dunn or a breach of the principles referred to in MWJ, there is no arguable basis for the complaint in ground 1. I would refuse leave on this ground.
Ground 2
Angela Jane Lumsden gave evidence for the prosecution. She is a medical practitioner with the SARC. Dr Lumsden is highly qualified in that she has a medical degree with honours, a PHD and a science degree. She had been working at SARC since April 2008.
On 22 September 2008 sometime after 2.00 pm she conducted a full physical examination of the complainant and also took various swabs from her. She gave evidence that she saw a number of injuries on the complainant including pinpoint bruising to the back of her throat which she said is a type of bruising that was seen with oral penile penetration. She said that the complainant had black‑red bruising around her left eye, with a slight yellowish tinge to the outer margins and she had soft tissue swelling and tenderness to her nose. The yellow colour in the bruising indicated that the bruise was 18 hours old or older. Dr Lumsden also gave evidence that the complainant had a number of bruises of different sizes in various places on her body. Some of these had a yellow colour indicating that they were at least 18 hours old and some did not.
Dr Lumsden conducted a visual examination of the complainant's anus. She found four small split type lacerations in the pigmented skin that lies at the entrance to the anus (ts 163). Dr Lumsden gave the opinion that those injuries were suggestive of penetration (ts 163).
Dr Lumsden gave evidence that she noted two small split type lacerations between the vaginal entrance and the point at which the inner genital lips meet posteriorly (ts 164). She said that those injuries were also suggestive of penetration. She was not able to comment on the amount of force required to produce those injuries (ts 164).
Dr Lumsden gave evidence as to the reasons why injuries may or may not be found in sexual assault victims ( ts 164, 165).
Dr Lumsden was cross‑examined for the purposes of confirming that it took significantly longer for bruises on some people to turn yellow; that pinpoint bruising can occur for reasons other than suction (ts 168); that there are a 'host' of medical reasons that can cause pinpoint bruising to the back of the throat; that there was no way of telling the sequence in which any injuries had occurred (ts 168); and that tenderness to palpitation was a subjective response from a patient (ts 169). Dr Lumsden also agreed with defence counsel that it was not possible to be precise about the age of small lacerations to the genital area. Dr Lumsden said that she had not made a note about whether the lacerations she saw looked as though they were starting to heal. She said that the age of the lacerations was from very recent to a couple of days and that she would not like to speculate as to their exact age (ts 169).
In her closing address, the prosecutor relied on the evidence of the police officers who saw the complainant at the liquor store and at her home that evening and who said that they did not notice any injuries to the complainant's face; whereas the police officer who saw the complainant on the morning of 20 September 2008 noted an injury to her eye (ts 174). Further, the prosecutor relied on Dr Lumsden's evidence that the injuries to the complainant were consistent with her allegations. As I have previously noted, the appellant did not accept that he and the complainant had anal sex that evening (ts 233). Thus, the prosecutor relied upon Dr Lumsden's evidence concerning the injuries to the complainant's anus as being supportive of her evidence. The prosecutor also relied on the injuries to the back of the complainant's throat as being consistent with her evidence that the appellant forced his penis into her mouth. The prosecutor told the jury that the injuries of which Dr Lumsden had given evidence did not support the appellant's version of the events.
In his closing address, defence counsel relied on Dr Lumsden's evidence as to the yellow colouring of the bruise around the complainant's left eye, together with her evidence that a yellow colour in bruising indicates that the bruise is at least 18 hours old (ts 466), to submit to the jury that the evidence suggested that the bruising to the left eye may have happened when the complainant fell to the ground at the liquor store (ts 466) rather than, as the prosecution suggested, when the complainant alleged the appellant punched her later that evening in her home. Defence counsel told the jury that Dr Lumsden's evidence was 'proof that it didn't happen after midnight' (ts 466). He then told the jury that it could reject Dr Lumsden's evidence but then said:
On what basis would you reject Dr Lumsden's evidence? She's got three degrees, as I recollect it, two with honours; the MBBS and a Bachelor of Science. And she's a Doctor of Philosophy as well as a Doctor of Medicine. She's got a PhD. And she has a number of years' experience in emergency medicine, and she's now moved onto sexual assault work. Are you going to put her experience and learning to one side and reject that business about 18 being the minimum? She's a witness for the State and that is what she says (ts 466 ‑ 467).
The other comment that defence counsel made about Dr Lumsden's evidence was in respect to the splits to the skin of the complainant's anus. He made the point that they could not be aged and it was not possible to say how they were caused (ts 467).
After closing addresses, the trial judge asked counsel to assist him in relation to any specific directions they said were necessary or appropriate. The prosecutor averted generally to expert evidence and the fact that the jury could accept or reject it in the same way as other evidence (ts 359). Defence counsel responded that 'it' (presumably the trial judge's direction) should go further and say that the jury had to weigh the expert evidence 'in light of the unchallenged expertise ‑ the evidence about the expertise' (ts 360). The trial judge did not respond to those submissions.
The trial judge did not give any specific direction to the jury about the proper approach to expert evidence. He directed the jury that it may accept part of the evidence of a witness and that it may reject other parts of the evidence of that witness. He said that that approach was 'perfectly permissible' and that it was entirely a matter for the jury (ts 366).
At various points in the summing up, the trial judge mentioned that the State relied on Dr Lumsden's evidence as being consistent with the complainant's account of events. His Honour summarised the evidence of each witness, including Dr Lumsden's evidence (ts 394 ‑ 396). When doing so, the trial judge told the jury that her evidence was in the nature of expert evidence, 'so because of her training, experience and skill, she's allowed to give evidence to you of her opinion about certain things that she saw and she told you how she was a medical practitioner and that she examined the complainant'. Later, in his summary of Dr Lumsden's evidence the trial judge, when mentioning a specific opinion said that Dr Lumsden was entitled to express an opinion because she was an expert.
Neither counsel had any complainant to make in respect to the trial judge's summing up.
The parties submissions on ground 2
The appellant submits that there was risk that the jury may have interpreted the trial judge's summing up concerning Dr Lumsden as meaning that they should accept her evidence without question because she was an expert. He submits that the direction gave rise to an inflation of her standing in the eyes of the jury because of the reference to her expertise and experience. It was said that this was unnecessary. The appellant says that the trial judge's earlier direction to the jury that it was a matter for them as to what evidence they accepted or rejected, was compromised by his remarks concerning Dr Lumsden. It is submitted that those remarks gave rise to the possibility that the jury would elevate her evidence to, in effect, being unimpeachable. It is said that his Honour should have directed the jury that merely because Dr Lumsden was an expert, her evidence still fell to be accepted or rejected by them like the testimony of any other witness.
The respondent submits that the trial judge's specific direction in respect to Dr Lumsden's evidence simply articulated the legal basis on which Dr Lumsden was permitted to give opinion evidence. It says that in the context of his Honour's total direction to the jury, the direction was not such as to amount to a direction that removed for the jury's consideration the acceptance of, and the weight to be attributed by it to, Dr Lumsden's evidence.
In any event, the respondent says that the judge's comments were not such that a miscarriage of justice occurred to warrant the quashing of the conviction.
Legal principles applicable to ground 2
Neither party has cited an authority which suggests that it is necessary in the case of unchallenged expert evidence to give a specific direction to the jury in respect of its approach to that evidence. The principles relating to unchallenged expert evidence were summarised in Hall v The Queen (1988) 36 A Crim R 368, 370 Roden J (Allen and Loveday JJ agreeing). His Honour said:
Juries are not bound to accept and act upon expert evidence. Nevertheless they are not entitled to disregard it capriciously. These two propositions have found expression and support in a line of authorities developed in England with regard to the defences of insanity and diminished responsibility.
In Rivett (1950) 34 Cr App R 87, Lord Goddard CJ, said (at 94):
'The second matter for emphasis is that it is for the jury and not for medical men of whatever eminence to determine the issue. Unless and until Parliament ordains that this question is to be determined by a panel of medical men, it is to a jury, after a proper direction by a judge, that by the law of this country the decision is to be entrusted.'
The Court of Criminal Appeal was there dealing with medical evidence relating to a defence of insanity.
Eight years later, when dealing with a defence of diminished responsibility, Lord Goddard showed the other side of the coin, in Matheson [1958] 1 WLR 474; 42 Cr App R 145, saying (at 478; 151):
'While it has often been emphasised, and we would repeat that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctors' evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be ''a true verdict in accordance with the evidence".'
In Bailey (1977) 66 Cr App R 31, another diminished responsibility case, Lord Parker CJ said (at 32):
'The court has said on many occasions that of course juries are not bound by what the medical witnesses say, but at the same time they must act on evidence, and if there is nothing before them, no facts and no circumstances shown before them which throw doubt on the medical evidence, then that is all that they are left with, and the jury, in those circumstances, must accept it.' (370)
The proposition that the weight to be given to expert evidence is a matter for the jury has been stated by the High Court on a number of occasions: Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430, 496; (1945) 63 WN (NSW) 123; Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486, 499; (1960) 34 ALJR 118; Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, Gibbs CJ and Mason J, 558, Brennan J, 598.
Resolution of ground 2
It was accepted by the appellant at trial that Dr Lumsden was qualified to give expert evidence. Her evidence, which was within her expertise, was not challenged by the appellant. It was not challenged in the sense that defence counsel did not cross‑examine Dr Lumsden with a view to undermining any of the opinions which she had stated in evidence‑in‑chief. The purpose of the cross‑examination was to obtain from Dr Lumsden concessions as to the limits of her opinions and other evidence which were potentially favourable to the appellant's version of events. It was also not challenged in the sense that the appellant did not call any evidence to put in issue Dr Lumsden's opinions.
The direction from the trial judge as to the jury's general approach to the evidence was adequate in the context of this case to make it clear to the jury that it was not bound to accept an act on Dr Lumsden's opinions. The fact that the direction did not go further and tell the jury that it was not entitled to disregard it capriciously was a matter favourable to the appellant.
The appellant's complaint about the trial judge's remarks to the jury concerning the reason why Dr Lumsden was permitted to give opinion evidence and the basis for that opinion is unfounded. Nothing the trial judge said to the jury undermined his direction to it that it was entitled to accept or reject any witness’ evidence.
It is true that it was not necessary for the trial judge to explain to the jury why Dr Lumsden was entitled to give expert evidence. This does not mean that it was an error to do so. Trial judges are permitted to explain to the jury the legal basis for the admission of certain types of evidence. If they do so, it is wrong to infer that a jury will misunderstand the nature of the explanation. This ground of appeal has no prospects of success and I would not grant leave in respect to it.
Conclusion
As I would not grant leave to appeal in respect of either ground 1 or ground 2, the appeal is dismissed.
3
24
1