Paite v Tasmania
[2019] TASCCA 5
•8 May 2019
[2019] TASCCA 5
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Paite v Tasmania [2019] TASCCA 5
PARTIES: PAITE, Cosmas
v
STATE OF TASMANIA
FILE NO: CCA 1887/2018
DELIVERED ON: 8 May 2019
DELIVERED AT: Hobart
HEARING DATE: 13 March 2019
JUDGMENT OF: Estcourt J, Pearce J, Martin AJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Appeal dismissed – Appellant found guilty of rape – Jury enjoyed advantage in seeing and hearing witnesses – Verdict open.
Criminal Code, s 402(1).
M v The Queen (1994) 181 CLR 487; MFA v The Queen [2002] HCA 53, 213 CLR 606; R v Baden-Clay [2016] HCA 35, 258 CLR 308, applied.
Aust Digest Criminal Law [3476]
Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage – Misdirection or non-direction – No error by trial judge in not giving direction – Direction about evidence of flight unnecessary to avoid risk of miscarriage of justice.
Criminal Code, s 402(1).
Wilson v Tasmania [2017] TASCCA 11, applied.
Aust Digest Criminal Law [3470]
Criminal Law – Evidence – Matters relating to proof – Burden of proof – Directions to jury – No error by trial judge.
Criminal Code, s 402(1).
Murray v The Queen [2002] HCA 26, 211 CLR 193, distinguished.
Douglas v The Queen [2012] HCA 34, 290 ALR 699, applied.
Aust Digest Criminal Law [2706]
REPRESENTATION:
Counsel:
Appellant: G Barns, C Scott
Respondent: D Coates
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2019] TASCCA 5
Number of paragraphs: 152
Serial No 5/2019
File No CCA 1887/2018
COSMAS PAITE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J (Dissenting)
PEARCE J
MARTIN AJ
8 May 2019
Orders of the Court:
Appeal dismissed.
Date of commencement of sentence of imprisonment amended to 6 October 2018.
Serial No 5/2019
File No CCA 1887/2018
COSMAS PAITE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J (Dissenting)
8 May 2019
The appeal
On 4 June 2018 the appellant, Cosmas Paite, was found guilty by a jury of one count of rape. He originally appealed to this Court on the ground that the jury verdict was unsafe and unsatisfactory and on the ground that the sentence imposed on him by Brett J of five years' imprisonment with a non-parole period of three years was manifestly excessive.
A subsequent proposed amended notice of appeal was filed and the Court heard the arguments raised by it and reserved its decision on the application to amend. That proposed amended notice raised four new grounds, only three of which were pursued. They are, that the learned trial judges charge suggested that there was an evidentiary burden on the accused; that the learned trial judge failed to give a direction as to how evidence of flight or other post-offence conduct could be used as evidence of consciousness of guilt; and that there was an accumulation of errors and irregularities in the trial that led to a substantial miscarriage of justice.
The proposed amended notice of appeal abandoned the appeal against sentence.
The law
In Tringrove v Tasmania [2014] TASCCA 7 at [5]-[6], Blow CJ and Pearce J, with whom Wood J agreed, set out the relevant legal principles as follows:
"Unsafe and unsatisfactory
[5] Each of the appellants has appealed in respect of every verdict, asserting that the verdicts were 'unsafe and unsatisfactory' or 'unsafe and unreasonable'. The test ordinarily to be applied by an appellate court when considering whether a verdict is 'unsafe or unsatisfactory' was explained by Mason CJ in Chidiac v The Queen (1991) 171 CLR 432 at 442–443 as follows:
'It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted ... In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused ...'.
[6] In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said at 494–495:
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618 – 619; Chidiac v The Queen (1991) 171 CLR 432 at 443 – 444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (supra) at 443, 451, 458, 461 – 462)'."
In this case, for reasons which, as I apprehend them, are not capable of being explained simply by the manner in which the evidence of the complainant and the evidence of the appellant was given by each of them, I am left with a reasonable doubt as to the appellant's guilt which, in my view, any reasonable jury ought to have experienced.
The evidence of the complainant and the appellant
The complainant's evidence
The evidence of the complainant was, relevantly and essentially, that at around 2am on Sunday, 26 June 2016, she left the Observatory Bar in the Salamanca precinct of Hobart. She said that she was "very intoxicated" and could not control herself properly descending the stairs from the night club, and kept stumbling. She said that a friend helped put her in a taxi. She said that she did not remember anything about the taxi or the driver (the appellant) other than his colour. She said he was "dark skinned" (he is of South Sudan ethnicity). She said that she got into the front passenger seat of the taxi. She said that she told the appellant her address in Glenorchy and that she wanted to go home but to stop at a McDonald's drive-through in Argyle Street. She said that the appellant drove through and she gave him her credit card to pay the cashier for three "Chicken 'n' Cheese" burgers.
The complainant gave evidence that when she drinks she talks a lot, so she could have talked about anything on the journey from Argyle Street to Glenorchy. She said that as they got closer to Arnold Street the appellant put his hand high up on her on the inner side of her right thigh to try and rub her thigh. She said that she told him to stop because she had a boyfriend, and that she moved his arm away. She said that nothing really happened until after they entered Arnold Street when she said the appellant again put his hand on her and again tried to touch her, in a similar area of her thigh.
The complainant told the jury that the taxi stopped three houses away from her address. She said that she went to pay and that the appellant said that she did not have to pay and again touched her leg. She said that she continued to tell him to stop and that she had a boyfriend.
The complainant then said that the appellant next leaned over her, put one hand on her right arm and reclined her seat so that she "went back". She said that she had tried to get out of the taxi but it was locked. She said that the appellant then forced himself on top of her and she could not do anything as "he hopped on top" of her. He had one arm on one side of her and one arm on the other side, so that she was essentially pinned, and because she was reclined she did not have enough strength to push herself up properly.
The complainant said that the dress she was wearing was a short dress and that it came up above her knee and that the appellant put his penis inside her vagina and kissed her neck at the same time. She was unable to recall what clothing the appellant was wearing or how he was able to put his penis inside her once he was on top of her. She said that she was wearing underpants and that "he might've pushed them to the side". She said that the appellant's penis was probably not inside her vagina for more than about two minutes before he ejaculated and withdrew.
The complainant told the jury that once the appellant removed his penis he "hops off" her and at "that time he must've unlocked the doors", so she got out of the car as quickly as she could and went straight home.
The appellant's evidence
The evidence of the appellant was, relevantly and essentially, that he had just dropped a passenger off outside the Observatory Bar when the complainant's friend asked him if he was free to go to Glenorchy and, when he said he was, the complainant got into the rear passenger side seat of the taxi.
The appellant said that he was not told the exact address in Glenorchy and that after he had driven off he turned his head around and asked the complainant whereabouts in Glenorchy she wanted to go. He said that it was then that she said to him "Oh you are such a young taxi driver, I haven't come across a young taxi driver before". He said that she then said that she wanted to jump in the front seat. He said that he told her to wait so he could pull over but that she had already forced her way over from the back seat into the front seat.
The taxi was a Toyota Prius. The appellant gave uncontradicted evidence that it is not possible to lock the doors from inside the vehicle so as to prevent a passenger from leaving by opening the door handle. He also gave uncontradicted evidence that the taxi was fitted with an internal camera which, as far as he knew, could not be turned off, and the recorded footage was retained for some months.
The appellant told the jury that the complainant then said that she would like to stop at McDonald's in Argyle Street, that she was hungry and wanted some food, that she had lost her friends at the night club, and that seeing him had just made her happy. He said that she asked him to turn the music up and said "Oh let's have fun."
The appellant said that once they turned into McDonald's the complainant asked him to park his taxi outside and to go in to get the food. He said that he told her that he would prefer going through the drive-through as it was quicker. He said that the complainant said that she was going to get the food for both of them. While they were at McDonald's the appellant said that the complainant pulled her dress up and showed him a tattoo on her right thigh. He said that she told him where she got the tattoo from, that it was not completed yet, and told him how long it took and how much it cost.
He said that after they left McDonald's and were driving via Main Road, Moonah into Glenorchy, the complainant began complimenting him, saying that he was young and handsome and that she kept touching his hair. He said that as they were continuing on Main Road heading towards Moonah the complainant continued giving him "sexual gesture kind of thing" and asking him questions like, is it actually true "that black men got a bigger dick". He said that he told her, "I don't know, maybe, you are a woman, you know better". He said that the complainant responded that she had not been with a black man before, so she would like to know. The appellant said that he told her that he was married and had children but that she did not seem to take any notice and that she continued pressuring him saying she would like to "have an experience". He said that she said that she had given "a hand job" before to other taxi drivers, and she wanted to know whether he was interested. He said that he told her that he was not interested but she continued touching him and saying that she did not take no for an answer.
The appellant told the jury that the complainant was touching him because she wanted to feel the size of his penis and that she was using her hands.
The appellant said that the complainant "was really like too hypo", that she was really excited, that she put her legs up on the dashboard and was "hanging off" him to the extent that he said to her that he needed to concentrate to drive. He told the jury that it was his intention to drive quickly and get her off him.
The appellant said that the complainant put her hand through his pants and touched his penis, skin on skin.
He said that the complainant had earlier told him that she would direct him to her address and that he kept asking her to let him know when to turn.
The appellant said that before they got to Moonah the complainant was "more displaying herself" to him, but after Moonah when they passed "where the buses are there", then "she becomes fairly handy" on him and was giving him "basically massage in [his] private part". He said that at that stage, as a result of her hand on his penis, he "did have the pre-ejaculation". The appellant said that he did not do anything to the complainant, that he did not put his hand on her right thigh or near her vagina. He told the jury:
"I knew that the taxi [sic] a camera and I was aware of that. The reason why I didn't get out of the taxi was, you know, I felt this is a safer place for me and anything happen would be on the – on there, so yeah, I – you know, I was yeah, very much aware of that, yes."
The appellant said that when he stopped the taxi at the complainant's house, he turned the light on and the fare at that point was $24.90. He said that he showed the complainant the fare but she told him to turn the light off. He said that he told her he needed to be paid and that she told him she had some cash in the house and asked him to come with her and she would pay him.
The appellant told the jury that he was not willing to leave the taxi because he felt that was where he was safe and that if he decided to get out then he "would not be safe".
The appellant denied the complainant's evidence to the jury that he reached across her and held one of her arms and dropped the seat back and then put himself on top of her. He said that the Toyota Prius was really quite small and had a middle console between the passenger and the driver, and that it would be really hard to actually go on the other side.
He said that he did not get into the passenger seat, and that while the complainant did kiss him when they were parked, he was in his seat. He said that the complainant was trying to seduce him and he told her "no" that he would go with her to her place. The appellant said that he said that because he wanted to get rid of her; to get her out of the car. He said that when she got out of his car he drove away. He said that when she got out of the car she was walking backward from where the car was facing and at that point he just drove off.
He told the jury that he did not tell the complainant that she did not have to pay the fare, that he did not have her do anything so she did not have to pay, that he did not get on top of her, that he did not hold her by her arms, and that he did not put his penis in or near her vagina.
Discussion
Notwithstanding that the complainant's underpants were not forensically examined, and notwithstanding the possibility of transference of DNA from semen outside the complainant's vulva to her vagina, either upon her toileting after the alleged rape or from the progressively higher vulval/vaginal swabbing at her subsequent hospital examination, the forensic evidence was adequate, in my view, to establish to a reasonable jury's satisfaction, beyond reasonable doubt, that the presence of the appellant's DNA in the form of entire spermatozoa detected from a high vaginal swab taken from the complainant shortly after the alleged rape, was as a result of the appellant ejaculating inside the complainant's vagina.
However, as was made clear to the jury by the learned trial judge in his summing-up (notwithstanding the obviously necessary tenor of the closing address of the appellant's counsel), such vaginal penetration and ejaculation does not prove beyond reasonable doubt that consensual sexual intercourse did not occur between the complainant and the appellant to which the appellant was not prepared to admit, even under oath. In my view, that is the compelling scenario in this case because of the numerous, largely objective, features of the evidence which should have created a reasonable doubt in the minds of the jury as to the complainant's asserted lack of consent. I will turn to that evidence in a moment.
In his summing-up the learned trial judge said this to the jury:
"In this case you might think, you would be entitled to think that a third alternative might be open on the evidence. It's entirely a matter for you. If for example you were satisfied, particularly having regard to the scientific evidence, Mr Paite's semen being in [the complainant's] high vagina, that there was intercourse, but you're not satisfied that [the complainant] has given you reliable account of what occurred leading up to the occurrence of sexual intercourse.
If you're not in a position where you can exclude Mr Paite's version of those events beyond reasonable doubt then you might be left in a situation where you're satisfied that there was sexual intercourse on the basis particularly of the scientific evidence, but not satisfied about what led up to it or the circumstances in which it occurred.
Now. If that's where you are left in this case then consent is an issue. If you are satisfied there was sexual intercourse you still have to consider the question of consent, and if you're not satisfied beyond reasonable doubt that you have been given an accurate version by [the complainant] then you would have to consider that issue, and it's only where you're satisfied beyond reasonable doubt that (a) there was sexual intercourse and (b) that it occurred without [the complainant's] consent in the way that I have explained it to you, that you can return a verdict of guilty. If you're left in doubt about that matter, the appropriate verdict is a verdict of not guilty."
In determining whether an inability to exclude the appellant's version of the events that led up to what was in fact intercourse and not merely masturbation of the appellant by the complainant, led to a state of dissatisfaction as to the reliability of the complainant's account, the jury was of course entitled to consider the importance of the appellant's sworn evidence that penetration did not occur. But the learned trial judge was clearly charging the jurors that they would need to look beyond that, and would need to be satisfied beyond reasonable doubt as to lack of consent on the part of the complainant with respect to sexual intercourse if they found it had occurred.
And, importantly his Honour clearly told the jury that they were entitled to accept parts of a witness' evidence and reject other parts. His Honour said:
"In evaluating the testimony of a particular witness you should bear in mind that it's not an all or nothing exercise. You're not required to say, 'Well, I accept everything that witness has said', or, 'I reject everything that witness has said.' You may do so, but you're also entitled to say, 'I think the witness is right about A, B and C. But, I'm not so sure about X, Y and Z'; it's a matter for you. You're not required to accept everything that a witness has told you, or reject everything that a witness has told you."
In my view, no jury acting reasonably could have rejected the appellant's evidence of the complainant's own sexual behaviour, or have accepted beyond reasonable doubt the complainant's evidence that intercourse not only occurred but was non-consensual. I am of the opinion that a reasonable jury could not have been satisfied of the appellant's guilt on the basis of lack of consent, given the following features of the evidence.
Intoxication
The complainant was, on her own evidence, and that of her friend, Ms M, very intoxicated. She could not stand by herself and was incapable of properly descending the stairs from the night club in what the evidence shows were flat heeled shoes. She needed Ms M to help put her in a taxi. She was not, however, comatose. The appellant's evidence to that effect was supported by the evidence of the complainant's flatmate, Ms H and her boyfriend, Mr M, as well as that of the police officer who attended in response to Mr M telephoning to report an assault on the complainant (and inferentially by the evidence of Dr Dorney who examined her at the hospital a few hours later). The CCTV footage of the appellant and the complainant at the McDonald's drive through, as well as the fact of her instructing the appellant to go there and to have him pay for food with her credit card, also make it apparent that the complainant was capable of making decisions and implementing them. There was no suggestion on the Crown case that she was not capable of free agreement if she gave it.
The significance of the complainant's intoxication is not that she should be disbelieved on the question of consent because of it. The relevance is that the appellant's version of events, and the question of the existence of a reasonable doubt as to his guilt in the context of the "third alternative" suggested by the learned trial judge, should be assessed in the light of the complainant's intoxication, given the well understood disinhibiting effect of excessive alcohol consumption.
Disinhibition and the seat change
The objective evidence does, to my mind, lend sufficient verisimilitude to the appellant's version of events as to the complainant's disinhibited conduct prior to arriving at her address as to create a reasonable doubt about the complainant's asserted lack of consent to vaginal sexual intercourse on the third alternative scenario.
Ms M said in cross-examination that she was sure that the complainant "hopped" into the back passenger seat of the taxi. By the time the taxi went through the McDonald's drive-through in Argyle Street the complainant was very clearly in the front passenger seat. In her evidence-in-chief the complainant, when asked which seat she got into, answered "the passenger seat". She was then asked a leading question by counsel for the Crown who said "In the front?" and the complainant answered "Yes". In cross-examination the complainant said that she was "100% sure" that she got in the front passenger seat, and that it was "a lie" that she sat in the rear passenger seat. The appellant said in his evidence-in-chief that the complainant sat in the rear passenger seat and that it was when he turned around to ask whereabouts in Glenorchy she wanted to go that she said to him, "Oh you are such a young taxi driver, I haven't come across a young taxi driver before". He said it was then that the complainant asked if she could "jump" in the front seat, saying that seeing him had made her happy, and subsequently showing him her tattoo, complimenting him on being young and handsome and touching his hair and later his penis.
A reasonable juror might, absent the disinhibiting effect of alcohol, and the independent evidence of Ms M establishing a change of seat by the complainant, simply conclude that the appellant fabricated his evidence about the complainant showing sexual interest in him. But if the events did not in fact unfold as he said they did, it would have been an extraordinary, unnecessary and potentially unbelievable addition to his version to have included. He could just as easily have fabricated a story about the complainant showing sexual interest in him while being seated in the front passenger seat for the entire journey.
Conversely, why would the complainant contradict the evidence of the friend who engaged the taxi for her and checked to see that she remembered her own address because she had never seen her so drunk before? And why would the complainant so vehemently deny climbing over into the front from the back unless she feared that the truth would harm her claim that she was raped by someone in whom she had shown no sexual interest? Why also would she climb over into the front seat unless she did have an interest in being close to the appellant?
The raising of a reasonable doubt about consent as a result of an objective appraisal of this evidence is assisted, in my view, by the appellant's evidence that the complainant lifted her dress and showed him a tattoo on her right thigh while recounting details of the place and duration and cost of the tattooing. The complainant accepted in cross-examination that she "might" have done that, after initially saying that she did not think that her tattoo was there then, and saying that she was sorry she had a very bad memory. She also accepted that only part of the tattoo would have been visible with the short dress she was wearing. The appellant was not shaken about this aspect of his evidence in cross-examination.
The appellant's evidence about these matters would, taken alone, cause me to experience a reasonable doubt about the asserted lack of consent, and to perceive a significant possibility that an innocent person has been convicted, notwithstanding that the very acceptance of the third alternative scenario would, of necessity, involve rejecting as false that part of the appellant's evidence in which he denied vaginal intercourse. There are however other matters of grave concern as I apprehend the whole of the evidence.
The taxi camera
The evidence before the jury was not simply that the taxi camera inside the vehicle could not be turned off to the best of the appellant's knowledge. Evidence was led by the Crown, at the request of the appellant's counsel, that the mandatory taxi cameras with which we are all now familiar cannot be turned off without disconnecting the vehicle's engine battery, as they are wired directly to that battery. The witness who gave that evidence, a Mr Cheetham (not the owner of the taxi or the employer of the appellant), also gave evidence that when he was contacted by police to download the camera footage on 29 June 2016, three days after the alleged rape, there were no recorded images recoverable. His evidence was that the "odds" were that by then the relevant footage had been "overridden" because the system has only a limited amount of storage.
The appellant gave evidence that his belief, based on his training, was that the footage was kept for three months, but that is not the critical point about this evidence. The critical point is that the appellant must be taken to have believed that everything that happened in the taxi was being recorded by a camera that could not be turned off, and by inference could not be interfered with by him. He also must be taken as not knowing, if he committed the crime of rape as alleged, that the crime would not be reported immediately, and that police would recover the footage before it was overridden (even if he knew that the duration of the storage was only three days or so and not three months). The jury had no contrary evidence and no proper basis for inferring anything else than that if the appellant raped the complainant he would have known that he had been filmed doing so, and would have understood that the footage would be seized by police.
But the obverse is also true. The appellant admitted to being masturbated by the complainant knowing that it would be recorded on camera because, in effect, the truth would be on the camera footage and he said in his evidence-in-chief that he was "very much aware of that". But although he denied vaginal penetration, he must be taken as knowing or believing that any recording of sexual intercourse would also have been recorded. To have engaged in consensual sex knowing that the truth would be recorded is one thing. To rape a person on an inviolable recording is another. It would be a sexually out of control predator and/or stupid risk-taker who would do so.
The appellant gave evidence that was not shaken or undermined by the Crown that he voluntarily returned to Tasmania from Uganda immediately upon being informed by his wife by telephone that he was to be charged with rape. He said that he did so confident that he would be relying on the taxi camera footage to establish his innocence. His evidence was that he had only been told about a month before the trial that there was no footage recovered. A desperate and/or stupid rapist might not have returned immediately from Uganda knowing that a camera recording existed that would convict him. Although an opportunist, upon subsequently learning that there was no such recording, might falsely, very well tailor his evidence to admit being masturbated, while denying vaginal intercourse. The reasons for doing so might be culturally or maritally based, or both. Indeed Crown counsel suggested to the appellant in cross-examination that it would be much easier for him to tell his wife that he had a drunk female who masturbated him than telling her that he had sexual intercourse with someone. This reasoning undoubtedly underlay the learned trial judge's summing-up leaving the third alternative to the jury.
In my view an assessment of this evidence should have created a reasonable doubt as to consent in the mind of a reasonable juror properly following the learned trial judge's direction as to that third alternative scenario.
The car door locking
In her evidence-in-chief the complainant said that when the appellant reached over and put her seat back she tried to get out, but the door was locked. She later said that after she was raped the appellant "hops off of me, and at that time he must've unlocked the doors". She said that she then got out of the car as quickly as she possibly could and then went straight home.
On this issue the appellant said in evidence-in-chief:
"You can't lock Prius from the inside, the only way you can lock Prius is from the outside. And a lot of taxi drivers got a problem with Prius because in case of a runner you can't be able to lock. So, there's no way you can actually lock Prius from the inside. You can only lock it if you happen to get out."
He was cross-examined about this in the following exchange taken from the trial transcript:
"Yes, right. Okay. Now, just in terms of the locking mechanism. It's not – the Prius is not a car that when you get inside it automatically locks to stop people in the outside just getting in or opening your door at the traffic lights, or anything like that, is that right? It doesn't have an automatic locking mechanism?……You can able to lock it, but anyone from inside would be able to open it.
All right?……Yeah.
Where are you able to lock it from?……If you got a central lock with (indistinct words) you can be able to press it, but as soon as you touch the door it is – yeah, it does open.
All right - ?……You actually can't lock it from the inside, you can unlock it for somebody who is coming from the outside.
Right. Is there another way that you can lock it from the inside?……No, not that I know of.
Okay. If the witness could be shown the photographs, please – P02, thank you?
HIS HONOUR: You can take the agreed facts off.
MS PRENC: (Resuming) Have you got the photographs there, Mr Paite?.....Yes.
All right. I'm referring particularly to one that's got the number underneath it, 1064065_14.JPG, it's in the middle of the second page?.....Yes.
On that driver's door panel there -…….Yes.
- isn't that a locking mechanism for the doors in the centre on the right hand side?.....I can see the one for the mirror –
Yes……- and the one, yes.
And below that on the left you have a button that you press down and that locks people being able to put the windows up and down in the back?.....Yes.
And the button the right is where the driver can flick that one way to lock and flick it the other way to unlock?.....You can be about to click the lock but it can't lock from the inside and I probable ask you to try it if you get a chance, but you can't lock from the inside.
All right, well – so you disagree with me that this is a common feature on many recent cars that you can press that button and it will lock all the doors internally?.....You will hear the click –
Yes……- locking, -
Yes…...- but whilst you hold the handle it will open.
All right, okay, I understand, thank you …".
At the conclusion of the defence case that was where the evidence rested. That is to say, making allowance for the fact that English was not the appellant's first language, that the vehicle front passenger door could not be locked by the driver from inside of the vehicle in such a way as to prevent it being opened by the passenger by operation of the internal door handle, and that locking the doors from the inside could only prevent someone from coming in from the outside. At the end of the passage of cross-examination that I have just set out, after reference to the exhibited photograph, Crown counsel appeared to understand and accept that, and did not pursue the matter further.
Despite that being the evidence, Crown counsel, in her closing address, said this:
"You can lock the vehicle from the inside, contrary to what the accused told you, you can see that in the photographs and anyone who has a recent model vehicle will well know that that is possible, the opportunity to do so is right there on the driver's side door panel."
In so stating Crown counsel misrepresented the evidence as it stood. Moreover it could not be seen from the photograph to which she referred that the evidence was contrary to the appellant's evidence. The photograph merely showed a button, the operational effect of which the appellant had explained to the jury. It did not of itself contradict or disprove what the appellant had said. Further the statement "anyone who has a recent model vehicle will well know that that is possible …" was not, as I apprehend it, an invitation to the members of the jury to use their common sense, it was an assertion of fact, contrary to the evidence and wholly unproved. There was no evidence as to the age of the vehicle.
This led to defence counsel in his closing address to say:
"I'd suggest to you that we do know bringing our common experience to Court that when you lock the car on the inside it keeps people out; it doesn't keep people in. Great play is made of two things in this matter, member of the jury, I suggest. One is, 'I was locked in the car.' Try it yourself. Suggested he locked the car; nobody can get in but anybody can get out, unless of course it's child proof locks, but child proof locks are not on the front doors are they, members of the jury. Child proof locks on the back door might be a different situation, but no; you don't get locked in your own car."
This was an invitation to the members of the jury to use their common sense, but sadly it was not drawing the jury's attention to the uncontradicted evidence of the appellant, and the learned trial judge's summing up did not address the issue in any detail. To the extent that it might be thought necessary to state it, my own general knowledge and experience of life is that different cars' central locking systems operate differently, so that some require a driver or a passenger to flick the button next to the door handle, as well as pull the handle, but that no front seat occupant can be locked in a car as can be the case with child locks on rear doors. The evidence was that the Toyota Prius front passenger door, even if internally locked, opened when the door handle was taken hold of.
In any event, it is my view that a reasonable juror, either acting entirely on the evidence as it stood, or assessing it in the light of his or her general knowledge and experience of life, must have entertained a reasonable doubt about the complainant's assertion that she was locked in the car, and thus a similar doubt about her asserted lack of consent. Such reasoning would have received comfort from the vague and unelaborated statement by the complainant that after she was raped the appellant "hops off of me, and at that time he must've unlocked the doors".
The complaint
The final objective feature to which I wish to refer is the evidence of the complainant's behaviour after she left the taxi and leading up to her complaint to police. The following excerpt from the transcript of the learned trial judge's summing-up sets out all of the passages of evidence given by the complainant and the other witnesses called to give evidence of her complaint, ultimately of rape:
"So, [the complainant] herself said – the question was asked:
What happens once you get home; what do you do before going inside?……I can't remember if I brought – when I usually go out I usually take my keys. I can't remember if I took my keys or not. But my housemate, TH, let me in.
How were you feeling at that time when you've gone to the front door and you're about to go inside?……I didn't want anybody to know, so I didn't tell nobody. I think I tried to act a bit normal in the sense that I was still intoxicated, but to try not to (indistinct word) anything so they knew that anything was wrong.
Do you remember saying anything firstly to TH at all when you - ?……No, I didn't want to tell her nothing because I just felt really ashamed, and I thought it was my fault. But, I now know it wasn't my fault. I just didn't want to tell nobody.
Do you talk about it at any time with Mr M?……Yes, I'm pretty sure. Once I got inside I went to the toilet, and they come back and I was going to hope into bed and BM, my boyfriend, he asked if I was okay; how was my night. And I said, 'It was okay.' And he must've thought I was upset, and he just asked if I was alright. At first I didn't tell him because I didn't want him to know, but eventually over time I told him.
Do you remember mentioning anything about the costs of the taxi to get home?……Yes, I told him that I didn't have to pay for the taxi. He asked me why didn't I have to pay for the taxi. I didn't want to tell him at first, but I'm pretty sure I told him that the taxi driver touched me.
Why didn't you tell Mr M any more than that?…… At first because when I told him it made me really upset because I didn't want to tell him because I felt so bad. After I finished telling him what fully happened he said, 'That's rape, and it's not okay.' He said, 'I'm going to call the police.' He went – called the police straightaway, and I said, 'No, I don't want to.'
Did he call the police?……Yes, he did.
So, that's what [the complainant] had to say about the conversation after she went into the house.
Now, Ms H seems to have – well, at least on her version, and perhaps even on [the complainant's] version, was the first person to see her when she came into the house. She was asked:
Did you hear something outside?……Yeah, I heard [ the complainant] on the front deck trying to get her keys from the meter box. I went to the front door and opened it, and when I walked outside she was sitting in the seats outside because she couldn't get the door undone. And she was sitting there and laughing and giggling; she'd had a bit to drink. After I opened the door she just stood up and came inside. She was just laughing, she said she couldn't get the door undone.
Did you have any interaction with her?……Not really. I didn't pay much attention, she was just giggling and laughing. She said the taxi driver gave her a lift for free. She was just, you know, she said, 'I love you', you know, like a, you know, a drunk best friend does. She said – she just said the taxi driver gave her a lift for free, a few times. And then B came in and took her into the bedroom.
Did you see L or B sometime shortly after they go to the bedroom?……About 15 minutes later – 10 or 15 minutes later B came into my room; we'd just turned the TV off to settle down and go to bed. And he asked did I see the taxi or the taxi driver because apparently the taxi driver had felt up her leg.
Did you speak to [the complainant] at all again?……When B told me that I walked into her room. She was sitting on the bedroom floor, wrapped in a blanket, crying, saying she was sorry; she didn't want to disappoint anyone. She was pretty drunk.
And that's - Ms H in cross-examination was asked this question:
The first time that you heard about the taxi driver having sex with her was – as in; his penis in her vagina, was after the police attended?…… I think she mentioned it to me when I went into the room, and she was sitting on the floor crying. But I can't be a hundred per cent remember if it was then or when the police came, being two years ago.
So, that was Ms H's version. Now, Mr M's version was this:
Do you remember when [the complainant] arrived home?…… Around about 2.30 in the morning. At first - I realised it was her, checked outside, knew it was her, went outside through the front door. I helped her come up the steps or the stairs.
He said he'd seen [the complainant] coming up the stairs:
I helped her up the last two or three steps, and she kind of pushes past me and goes inside to go to the bathroom.
He waits for her. After the 10 minutes:
I walk with her into the bedroom and start asking her about her night: how was it with all her friends; how was it out in town. She starts explaining to me about being at a friend's house with CJ. I'm not sure about who the others were. And just tells me her night was fine; it was alright; went out to town; had a few drinks; danced and all that. She was telling me about the taxi ride home. She kind of started to trail off and stopped talking about that until I pressured her a bit more about it. And then she mentioned about how the taxi fare was thirty to forty dollars but she didn't have to pay. At this point I'm a bit curious, so I'm asking, 'Well, why didn't you have to pay a forty dollar or a thirty dollar cab fare if that's what you would usually do?' She starts explaining that the taxi driver started to say some explicit things and started to caress her inner thigh. He started to put his hands upon her legs and say things like how she was beautiful. And then she kind of stopped, and she just clammed up and didn't want to say anymore, and just went real quiet. She demonstrated the point on her inner thigh, on her right leg up towards to her vaginal area.
And then he said:
At this point I realised that her lipstick was smudged and that her inner thigh was red, and looked well sore, I guess, and that there was a certain smell that kind of hit me at this point like the smell of semen. I start kind of pressuring her more to give me more information, like, 'What did this taxi driver do? What happened when he started touching you?' At first she was really hesitant to say anything, and she starts crying a lot; probably the worst I've ever seen her cry ever. It didn't look like she was going to stop, to be honest. At this point I've just asked questions; she's just nodding because she's just so hysterical she can't answer me. At this point I realise that she most definitely had probably been raped.
So, that was an assessment:
She didn't say that to you at that time?…… Not at that time, no. I immediately went into the next room where T and A were at the time. I knocked on the door, I asked T if she could look after [the complainant] for me while I go to make a phone call. I then rushed outside and called police who directed me to another number. I then called them.
That's Mr M's version of what happened. Constable Tilley arrives and responds to that phone call. His evidence was that [the complainant] was very upset:
She was very standoffish – probably isn't the right word, but she was very guarded. She appeared very intoxicated. She was having trouble verbalising; she was talking but she wasn't saying full sentences. She was saying bits and pieces. She certainly wasn't having a discussion like we're having now. She was very reluctant to speak with myself and Constable Walker. Had some discussion with her about why we were there and that we were there to investigate a report that she had been assaulted. She didn't want to talk about anything that happened in the taxi initially. I asked her, 'Did the taxi driver touch you?' And she said, 'He raped me.' I had a conversation about what she meant by rape, and asked her, 'How did he touch you; did he use his penis?' And she advised me that she saw his penis; she said, 'He put his penis in my vagina; he didn't wear a condom, and he put his chair back.' Later on on the morning we were at the Royal Hobart Hospital. She said that she didn't want it to happen and that she put her arms down. She said that during the trip the driver of the taxi had told her that she didn't have to pay and they'd sort something else out. She stated it occurred ... down the road from her residence.
In cross-examination Constable Tilley said:
Well, my observations of her, it was apparent to me that she was intoxicated from the way she was speaking; from the way her mannerisms were. But, it was also apparent that she was extremely upset. I guess they can go hand in hand as in you can have the same mannerisms when you're upset as when you're intoxicated. But, from my observations of her she appeared intoxicated and she was also incredibly upset."
As to this evidence his Honour charged the jury:
"Now, there was considerable evidence about what happened after she got into her house. This evidence is what lawyers would call evidence of complaint; evidence of distress, because there was evidence of both. There was evidence that she did complain about what had happened to her, and there was evidence that she was distressed during the course of doing so.
Now, I just want to say something; I'm going to go through that evidence in a moment, but I just want to say something briefly to you about how you can use that evidence. Obviously evidence of complaint and evidence of distress goes to the consistency of her account; consistency of what she said. So, you can ask yourself, 'Are her acts after getting out of the taxi consistent with the acts of somebody who has been the subject of a sexual assault, in particular a rape; or, is there inconsistency in relation to what has occurred?'
Now, in this case the parties put it in a different way. The defence would say to you there is some delay in her making a complaint about rape. It comes about after she's questioned by her boyfriend, Mr M, and really the complaint of rape doesn't come out until she's with Constable Tilley. So, there's some delay; she doesn't come straight in the door and say, 'I've been raped.'
Now, there are some warnings I must give to you if you determine or you consider that there was some delay on her part in relation to making the complaint. I warn you that such delay does not necessarily indicate that the allegation that the crime was committed, the crime of rape was committed, is false. There may be good reasons why a person may hesitate in making or refraining from making such a complaint. For example, in a case like this anyone who has been the victim of such conduct may refrain from making a complaint because of embarrassment, distress, or the fear of not being believed. There may well be other good reasons why delay or the absence of complaint might occur. I simply make the point to you that it doesn't necessarily mean that what has happened is false.
Now, that doesn't mean you don't take it into account; you have to take everything into account. And you make of it what you will, but I would simply ask you to bear those warnings in mind.
Now, insofar as [the complainant] has said things to people that have now been repeated by them in Court; that's what you'll probably understand to be hearsay. I mean, most evidence about something is what a person gives when they're sitting in Court; they've taken an oath or affirmation; they're subject to questioning. And we normally don't allow people to talk about statements made by others outside Court. But, in this case it is relevant evidence. It's relevant for the reason I've explained to you; to examine the question of consistency. But, the law does say that you are entitled to take what she has said as evidence of the truth of the facts that are asserted in those statements. It is some evidence of what has occurred. You're entitled to look at it in that way. You should bear in mind that what she said at the time was not on oath; you should bear in mind that she wasn't being cross-examined. But, obviously it has particular cogency because it's the first time she's saying what has happened to her in the vehicle, and so it's relevant for that purpose."
Being so charged it is my view that, after following the learned judge's directions, the relevant evidence should have caused a reasonable juror to conclude that there was a reasonable doubt about the complainant's veracity as to her ultimate complaint that sexual intercourse was non-consensual for the following reasons:
· Notwithstanding the complainant's evidence that she did not want anybody to know and so she "tried to act a bit normal", the observation of her by Ms H that she found her laughing and giggling and repeating that the taxi driver gave her "a lift for free", sits ill with the demeanour of a young woman, even a drunk young woman, who had just been raped.
· Mr M's assumption that the complainant had been raped was not based on anything that would not also be true of consensual sexual intercourse.
· Mr M's manner of questioning the complainant and receiving answers in the form of nods until he concluded that "she most definitely had probably been raped", is not the most reliable way to receive genuine complaint evidence.
· That, on the independent evidence, no complaint of rape was actually articulated by the complainant until after Constable Tilley arrived, raises the potential of an exaggerated and false complaint, given the history and context of the complainant's earlier behaviour and the conclusion reached by Mr M causing him to call the police..
· Nothing observed on the medical examination of the complainant at the hospital by Dr Dorney was inconsistent with consensual sexual intercourse between two partially clothed persons on a reclined bucket seat in the passenger's side well of a medium sized car.
Even making due allowance for the possibility that a combination of intoxication and distress could account for the complainant's behaviour and demeanour as she arrived at her residence and subsequently, the possibility of initial alcohol induced euphoria turning into ex post facto regret for her conduct looms in my mind sufficiently to raise a reasonable doubt as to her assertion of lack of consent. A reasonable doubt experienced by a court of appeal is a doubt which a reasonable juror ought also to have experienced (M v The Queen (1994) 181 CLR 487, per Mason CJ, Deane, Dawson and Toohey JJ at 495).
In R v Bauer [2018] HCA 40, 92 ALJR 846 at [92], the High Court observed of complaint evidence that had been elicited by leading questions:
"But in contrast to the position at common law, under s 66 the fact that representations are made in response to leading questions does not of itself render evidence of the representations inadmissible. It goes to the weight of the evidence, which, as has been emphasised, is for the jury to assess".
In the present case the way in which the complaint was elicited from the complainant should have caused the jury, acting reasonably, to have given it little if any weight and, on the contrary ought to have raised a doubt in the minds of the members of the jury as to the veracity of the complaint.
In R v Dookheea [2017] HCA 36, 347 ALR 529 , in a joint judgment, Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ at [34]-[35] confirmed that it is not the case that whenever a reasonable jury recognises the existence of a doubt, no matter how slight the doubt may be, the jury ipso facto has a reasonable doubt. Rather, they said, a reasonable doubt is a doubt which the jury as a reasonable jury considers to be reasonable, albeit, of course, that different jurors might have different reasons for their own reasonable doubt.
Their Honours observed that it is the votes of each of the individual members of the jury that are determinative of the verdict of the jury as a whole, but noted that nonetheless the idea that a reasonable doubt is one that a particular jury entertains at the conclusion of their deliberations is an idea that pertains to the corporate state of mind of the jury, as opposed to the animadversions of the individual members of the jury.
It is difficult for me to say (because it is hypothetical), that if the unusual incremental development of the complaint were the only matter of concern to my mind, whether I might have reached the view I have about the complaint evidence. As the Court said in Dookheea (above), at [35], each individual juror may at some point in the course of his or her consideration of an issue have a doubt which, upon reflection and evaluation, he or she discards as an unreasonable doubt. However, I am firmly of the view, given all of the features that I have examined, and making full allowance for the advantages enjoyed by the jury, that there is a significant possibility that an innocent person has been convicted, albeit a person who has lied on oath and thereby substantially contributed to his own wrongful conviction.
Even allowing that different jurors might have different reasons for their own reasonable doubt, there are, in the present case, as I have identified, more than enough separate areas of the evidence sufficient to give rise to a reasonable doubt to have required that the animadversions of the individual jurors resulted in a corporate state of mind of the jury, acting reasonably, that the appellant should be found not guilty of the crime of rape.
The concept of being able to accept parts of a witness' evidence and reject other parts must be a difficult one for a jury to follow in cases such as this. As must the principle that rejection of part or all of an accused person's evidence does not of itself lead to a verdict of guilty, absent satisfaction of all of the elements of the Crown case beyond reasonable doubt. Even though the learned trial judge clearly instructed the jury as to these complexities in the context of the third alternative open to them, I would attribute no personal fault to any juror in failing to entertain a reasonable doubt which, in my view, they ought to have experienced in reaching a unanimous verdict of guilt.
I reject the suggestion that the learned trial judge erred in his summing-up in any material way. In particular there was no misdirection as to the onus of proof, and his Honour was not obliged to give an Edwards style direction as to the question of flight. The fourth proposed new ground of appeal asserting a miscarriage of justice on the basis of "an accumulation of errors and irregularities in the trial" can only find voice, in my view, in the ground that the verdict was unsafe and unsatisfactory. It follows that I would refuse the application to amend the notice of appeal.
The appeal against sentence
As the appeal against sentence was not pursued it is not necessary for me to consider the extant ground of appeal relating to sentence in any detail. However, I say for completeness that I do not regard the sentence imposed as unreasonable or plainly unjust so as to give rise to the inference that there has been an error in the exercise of the learned sentencing judge's discretion. I can find no apparent error in the sentence passed by the learned sentencing judge, either as to the head sentence or the non-parole period.
Disposition
I would quash the appellant's conviction and substitute a verdict of acquittal.
File No CCA 1887/2018
COSMAS PAITE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
MARTIN AJ
8 May 2019
The appellant was found guilty by a jury of one count of rape. He was sentenced by Brett J to imprisonment for five years from 4 June 2015. This appeal challenges his conviction. He does not pursue his appeal against the sentence.
The grounds of appeal
The notice of appeal contains one ground which asserts that the verdict of the jury is "unsafe and unsatisfactory having regard to the evidence". The appellant seeks leave to add three additional grounds which we will refer to as grounds 2, 3 and 4:
· ground 2, that the judge's charge suggested that there was an evidentiary burden on the accused;
· ground 3, that the trial judge failed to give a direction as to how evidence of flight or other post offence conduct could be used as evidence of consciousness of guilt; and
· ground 4, that there was an accumulation of errors and irregularities in the trial that led to a substantial miscarriage of justice.
A further proposed amended notice contains an additional ground 5 that the "verdict of the jury was unsafe and unsatisfactory in all of the circumstances of the case". It is a repetition of the original ground.
We have had the advantage of reading, in draft form, the reasons of Estcourt J. We respectfully have a different view about the result of the appeal. In our view, for the following reasons, none of the grounds or proposed grounds are made out. We would refuse leave to add the additional grounds and dismiss the appeal.
The complainant's evidence at trial
On Saturday 25 June 2016, the complainant, a female then aged 19, was out socialising with friends. They had "pre-drinks" at a home before going to various clubs and hotels in central Hobart. They ended up at a bar near the waterfront. They did not stay together but agreed to meet at 2.00 am to go home. When the complainant could not find her friends at that time she decided to catch a taxi home by herself. She told the jury that she had been drinking throughout the evening and was "pretty drunk", by which she meant "very intoxicated". Because she was unsteady on her feet, she was helped down the stairs of the bar by another female friend, E, who then helped her into a taxi. It was common ground that the driver of the taxi was the appellant and that he was flagged down by E after having just dropped another fare at the bar.
At the time, the complainant shared a house at Glenorchy with her boyfriend, B, and her housemate T. The complainant's evidence at trial of the events leading up to the rape was that:
· after leaving the bar she got into the front passenger seat of the taxi;
· she asked to be taken to her home and gave the taxi driver the address;
· on the way, she asked to be taken to McDonalds, which was only a couple of minutes' drive from where she had been picked up;
· at McDonalds the taxi went to the drive-through where the appellant purchased food for her for $9.00, which he paid by using the debit card she gave him. He used "pay wave" through the driver's window of the car;
· on the journey between McDonalds and her home, the appellant put his hand on her inner right thigh and rubbed her thigh. She told him to stop because she had a boyfriend;
· as they entered the street in which she lived, the appellant again put his hand on her thigh, and stopped the taxi a few houses down from her home;
· the complainant asked to pay for the taxi but the appellant said that she "didn't have to pay" and continued to rub her leg;
· she tried to get out of the taxi but could not because the door was locked.
The complainant told the jury that the appellant then put his hand on her arm, leaned across her and reclined the front passenger seat in which she was sitting. He forced himself on top of her, pinned her by putting "one arm on this side and an arm on that side, holding me like that", and then put his penis in her vagina. She was wearing a short strapless dress. She told the jury that she tried to call out but she did not think anyone heard her. She said when the appellant was on top of her he kissed her on the neck. When asked what he did with the underpants she was wearing she answered "He might've pushed them to the side". She thought his penis was inside her vagina for probably no longer than two minutes". Penetration continued until he ejaculated.
According to the complainant, after the appellant removed his penis from her vagina, "he's hopped off me and at that time must've unlocked the doors". She opened the door of the car and went into her home.
The appellant's case at trial
At trial, the appellant gave evidence. He gave a substantially different version of events. He is originally from South Sudan and arrived in Australia when he was 14. At the relevant time he was working as a taxi driver to support himself while he was at university, and to raise money for his family in Africa. He told the jury that when he picked up the complainant outside the bar she got into the rear passenger side seat. She asked to be taken to Glenorchy but did not give an address. Soon after the journey commenced she began to make sexually suggestive remarks. She told him she wanted to get into the front seat and, despite him asking her to wait until he pulled over, she climbed from the back to the front. She told him that she wanted to travel via Argyle Street, rather than the highway, and asked to go to McDonalds on the way because she was hungry. She asked him to turn the music up, and said "Oh, let's have fun". He said that after they left McDonalds she showed him the tattoo on her thigh and continued to make sexual remarks and physical advances to him. He told the jury that she put her hand on his penis and said that she "had never been with a black man before." He asked her to stop because he had a wife and children, and he wanted to concentrate on driving, but she insistently continued to touch him. His evidence was that she put her hand inside his pants and touched him directly on the penis, that she was "displaying herself" to him and "giving me basically massage on my private part". When asked did anything occur as a result of what the complainant was doing he answered:
"I think I did have the pre-ejaculation, yes."
The appellant said she directed him to her house and told him where to stop. When he told her the fare was $24.90, she said she had cash in the house and invited him to go with her so she could pay. He was not willing to leave the taxi because, he said, he did not feel safe. After she got out of the car, he saw her walking away. He did not wait to be paid, and drove off, back to the city to continue working.
The appellant denied that sexual intercourse in any form occurred. He denied penetrating the complainant's vagina with his penis. He said he did not put his penis anywhere near her vagina. He denied kissing the complainant or putting his hand on her thigh. The appellant maintained that the complainant was the person who made the sexual advances during the journey in the taxi, and that he tried to discourage her.
Ground 3 – A direction as to evidence of flight?
By this ground, the appellant contends that the trial judge erred by not directing the jury that "evidence of flight or other post offence conduct" could not be used as evidence of consciousness of guilt. The contention arises from answers given by the appellant to questions asked by counsel for the State in cross-examination. The questions were about a trip the appellant took to Sudan in 2016, after the alleged crime.
In cross-examination, the appellant agreed he travelled to Sudan not long after he was spoken to by the police. He told the jury he arrived in Australia from Sudan in 2002, that he had a sibling and a grandmother still in Sudan whom he was helping financially, that he had visited Sudan in 2014, 2015 and 2016, and that his trip in 2016 was planned and booked before the police spoke to him. He returned to Australia voluntarily after three months. He also gave evidence that his wife worked in Tasmania and his children had never been to Africa. Counsel for the State accepted the answers the appellant gave to the questions she asked, did not challenge him about them or suggest that his answers were not truthful.
In some cases, it is open to a jury to use evidence of the conduct of an accused person, flight for example, as probative of guilt because it demonstrates a consciousness of guilt: R v Cook [2004] NSWCCA 52. It may be treated as either circumstantial evidence of guilt or an implied admission. Where such evidence is relied on by the State and admitted, careful directions to the jury are required as to how it may be used. The required directions are of a nature similar to those used in relation to lies: Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen [2000] HCA 23, 200 CLR 234.
The appellant now submits that the trial judge should have given the jury a direction that they were to either ignore the questions and answers given by the appellant, or that they could not use the evidence to infer guilt, to avoid the risk the jury may impermissibly use the evidence for that purpose.
We do not agree. Consistently with the approach taken in Dhanhoa v The Queen [2003] HCA 40, 217 CLR 1 about the necessity for a lies direction, we do not see that there was any real danger that the jury would engage in the process of reasoning now complained of by the appellant. The suggestion that the jury may have done so is speculative. The appellant gave a plausible innocent explanation for the trip he made to Sudan after the alleged crime, and voluntarily returned. It may have been open to the trial judge to say something briefly about the matter. He asked counsel for the State whether he should do so. She made clear that she did not rely on the evidence as probative of guilt. Nor did she rely on the evidence as reflecting adversely on the appellant's truthfulness or reliability. She made no mention of the subject when addressing the jury. Having heard the exchange between the trial judge and counsel for the State, the appellant's trial counsel did not seek any direction to the jury. In submissions to the jury he relied on the evidence of the appellant's voluntary return as evidence of conduct consistent with his innocence.
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