Miller v The Queen

The High Court of Australia heard an application for special leave to appeal in the matter of *Miller v The Queen*. The applicant, Mr Miller, complained that the trial judge's directions to the jury concerning a charge of rape were inadequate. Specifically, it was argued that the judge presented the case as solely an issue of penetration versus no penetration, thereby failing to adequately address the crucial element of consent as a live issue for the jury's deliberation.

The legal issues before the High Court concerned whether the trial judge's directions to the jury were sufficient in relation to the defence of lack of consent and the issue of corroboration. The applicant contended that the judge's emphasis on the factual question of penetration overshadowed the importance of consent, which remained a critical aspect of the case, particularly given the defence's denial of any sexual activity. Furthermore, the applicant argued that the judge's direction on corroboration was diluted and did not adequately warn the jury of the potential dangers of accepting the complainant's testimony, especially considering the significant delay in her formal complaint.

The applicant relied on the principle established in *Holman*, which held that a denial of sexual activity by an accused does not negate consent as a live issue. The court was referred to the judgment in *Holman* for the proposition that even where an accused denies any sexual activity, the question of consent remains a real issue for the jury if there is evidence in the Crown case that suggests it was a live matter. The applicant argued that the trial judge failed to properly place this issue before the jury, reducing the case to a simple question of penetration. Regarding corroboration, the applicant submitted that the judge's direction was a "watered-down" version of the traditional warning, which was essential given the circumstances, including the delay in the complaint and the conflicting evidence. The judge's direction, which advised the jury to consider how other evidence "fits in" with the complainant's story to gain confidence in her testimony, was criticised as insufficient.