Philip John Webb v R No. SCCRM 97/46 Judgment No. 6150 Number of Pages 24 Criminal Law
[1997] SASC 6150
•16 May 1997
IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA
OLSSON, WILLIAMS AND BLEBY JJ
Criminal law - particular offences - offences against the person - other offences against the person - sexual offences - appeal against conviction of the appellant by verdict of a jury, of rape - admissibility of evidence - whether probative value of mother's evidence outweighed prejudicial value - whether judicial warning required in relation to mother's evidence and that of the complainant, albeit for different reasons - whether summing up adequately dealt with certain aspects of defence case and the medical evidence - whether summing up was balanced - extent to and manner in which trial Judge may express an opinion on the facts in summing up. R v Ali (1982) 6 A Crim R 161; R v Courtney-Smith (No 2) (No 2) (1990) 48 A Crim R; R v Machin (1996) 68 SASR
526; B v The Queen (1992) 175 CLR 599, applied. R v O'Neill (1988) 48 SASR 51; R v Zorad (1990) 19 NSWLR 106-7; R v Glover (1987) 46 SASR 310; Broadhurst v The Queen [1964] AC 441; R v Hulse (1971) 1 SASR 327; Green v The Queen (1971-1972) 126 CLR 25; R v Pavlukoff (1953) 106 CCC 249; R v Nation (1995) 78 A Crim R 125; Cleland v R (1952) 151 CLR 1; Simmons v R (1997) 68 SASR 81; R v W (Court of Criminal Appeal, 25 November 1993 (Judt 4282) unreported; R v Faure (1993) 67 A Crim R 172, discussed.
ADELAIDE, 18, 28 April 1997 (hearing), 16 May 1997 (decision)
#DATE 16:5:1997
Appellant:
Counsel: Mr C Kourakis
Solicitors: Caldicott & Co
Respondent R:
Counsel: Ms W Abraham
Solicitors: DPP (SA)
Order: appeal dismissed.
OLSSON J
1. This is an appeal against the conviction of the appellant, by verdict of a jury, of the offence of rape. It relates to a charge that, on 8 January 1995 at Bute or another place, the appellant had sexual intercourse with a young girl Erin, who was then approximately 11 years of age. It was alleged by the Crown that, on the occasion in question, the appellant had inserted one or more fingers into Erin's vagina with some degree of force, thereby occasioning her physical injury.
2. By his notice of appeal the appellant complains of the admission of certain evidence given by the appellant's wife and of various aspects of the summing up by the learned trial Judge.
3. It is first necessary to attempt a resume of the relevant factual material, as the backdrop against which the issues arising on the appeal fall to be examined.
4. At the time of the alleged incident the appellant was a married man 32 years of age. There was one child of the marriage. The family lived on a farm property which was located about 10 kilometres from Alford and about 30 kilometres from the township of Bute. It was not disputed that, in the late morning of 8 January 1995, the appellant, his then pregnant wife and her four children by a previous union attended a barbecue at a friend's home.
5. It was the accused's evidence that he left the barbecue in his wife's car at about 6pm and drove to the hotel at Alford with the intention of getting some more beer. He said that he stayed there talking with some acquaintances and drinking with them for some considerable time, after which he left to travel to the Bute Hotel with the intention of attempting to contact another person in connection with the possibility of work being available to him. He contended that he arrived at the Bute Hotel shortly after 8pm and remained there for a short time. There was clear evidence to the effect that he placed a telephone call to an acquaintance (the witness Susan Ball) in Adelaide at 8.32pm. According to Telstra records that conversation lasted for some nine minutes.
6. The appellant further told the jury that, having attempted to telephone his parents in Adelaide, he then went to the premises of a person named McDonald in the township. He knocked on the door but there was no answer. The purpose in going there was to seek to get some petrol, because Mr McDonald owned the local garage.
7. It was the appellant's case that, whilst there, he encountered Erin, who was known to him. He said that, in the course of conversation, Erin asked whether he could give her a lift to the home of some people who lived opposite the store in Alford. He testified that he agreed to do so, whereupon Erin entered the car and he then drove it to Alford, taking about 20 minutes for the trip. He initially drove to some premises at Alford where he anticipated being able to get some petrol, at which point Erin also got out of the car. The premises in question were those occupied by the witnesses Lloyd and Mary Tee. It was said that Erin asked if she could go to the toilet and entered the house.
8. On his version of events, the appellant purchased a quantity of petrol from Mr Tee and then drove home, leaving Erin in Alford. He later drove to Adelaide. It was his case before the jury that nothing untoward had happened, as between himself and Erin, at any time during the trip.
9. Erin told the jury that she lived in Bute and that, during the evening in question, she had been watching a television programme known as "Baywatch" at home with her father and sister. She testified that, after watching most of the programme, she decided to go for a walk and take her dog with her. She testified that she encountered the appellant when he had been knocking at the door of the McDonald's house and there spoke to him. She also said that she suggested that it might be possible to get some petrol at Alford.
10. There was no dispute on the evidence that Erin voluntarily entered the appellant's car and travelled with him toward Alford. Nor was there any dispute that the dog was also in the vehicle.
11. Erin related that, at some stage during the trip towards Alford, the appellant stopped the car, moved over to the passenger side seat where she was sitting, sat on her lap and tried to kiss her. She struggled and called out to him to stop. She went on to relate that the appellant pulled her pants down, threw her out of the car onto the ground and then got out and tried to pull down her bathers, which she had been wearing as underpants. It was said that he actually pulled the bathers to one side at the crotch and then thrust two fingers into Erin's vagina. According to her, both then got back in the vehicle and the appellant said that "he shouldn't have done it because Erin wouldn't like him any more".
12. Erin told the jury that, when she was in the car after the incident, she felt wet. On arrival at Alford she asked to go to the toilet and there observed blood in her pants. She thereafter spoke to Mrs Tee and immediately made a complaint to her to the effect that, on the way from Bute, the appellant had stopped the car, interfered with her in the car, and had pushed her out of it onto the road and had done naughty things to her. Mrs Tee immediately contacted the police. She made a note, shortly after the event, to the effect that it was at 9.15 pm that the appellant had arrived at the premises with Erin. It appeared to her that Erin then seemed quite calm. However, she specifically noted that Erin "was getting bits of trees, leaves and stuff and she was pulling them from her hair". She also noted some damage to a part of Erin's "walkman" to which Erin drew her attention.
13. I digress to record that forensic evidence confirmed the presence of bits of debris (which appeared to be small, broken-up pieces of dried grass, leaf and twigs) in Erin's hair and also in the crotch of her bathers and the fact that the back of her T-shirt was dusty. The colour of the dust was similar to that of the soil in a location identified to the police by Erin as that where she was allegedly removed from the car by the appellant.
14. Evidence was called by the Crown to the effect that blood was found on the passenger side seat of the car which had been driven by the appellant. DNA analysis of it indicated that it must have come from Erin. That was not disputed by the appellant.
15. A further important feature of the evidence was that the wife of the appellant, from whom he had become estranged only a short time prior to the trial, was called to give evidence on behalf of the prosecution. She told the jury that she had returned home and was watching television when the appellant returned in her car at about 10.15 pm. It was her evidence that, when the appellant had come into the house, he said to her "Come on, we are going to Adelaide". He testified that she declined to go because he had been drinking, whereupon he said to her "the police are after me". When she asked him why that was so, he was said to have responded "I picked up somebody and some shit happened". She told the jury that he then packed some things and drove to Adelaide.
16. Doctor Brady, a specialist paediatrician, testified that she had conducted a detailed physical examination of Erin at about 3.30 am on 9 January 1995. She had first seen her earlier that night and had conducted a superficial examination at about 10 pm. However the later examination was conducted under general anaesthetic.
17. She deposed to a number of areas of abrasion on Erin's body, which, she said, were consistent with the version of events deposed to by the latter. The doctor testified that, on initial examination, it appeared that there was a good deal of blood and mucous in the area of the vagina and it was for this reason that further examination was carried out under anaesthetic. There was, in her view, some possibility that there might be a need for surgical repair.
18. On the further examination it was noted that there was a laceration which extended from just the entrance to the vagina, through the outer part of it, and back through the hymenal tissue. It was the type of injury which, in the opinion of the doctor, would have led to ready and rapid bleeding. Dr Brady told the jury that the injury noted by her was consistent with the inserting of two fingers into the vagina. She also expressed the opinion, in cross examination, that the injuries noted by her were consistent with having been caused as early as between 7.30 and 8.30 pm the previous evening.
19. The witness Susan Ball confirmed to the jury that she did in fact receive a telephone call from the appellant commencing at 8.32 pm on 8 January 1995. However she said that there was also a further call from Windsor at about 10.48 pm the same evening, which lasted for six minutes. During that telephone call the appellant told her that he was then actually on his way down to Adelaide. It was her evidence that, during the course of that second telephone call, the appellant told her that he had picked up a little girl he knew, was going to take her home and asked where a petrol station was that would be open. He said that the time the girl got out of the car "she was ranting and raving about something".
20. It is to be borne in mind that this was the fourth trial of the appellant in relation to the offence of which he was convicted. Two previous trials had miscarried and, on the third occasion, the conviction of the appellant had been set aside by the Court of Criminal Appeal and a re-trial ordered.
21. On the hearing of the present appeal the appellant complained of the admission of the evidence of the appellant's estranged wife and a series of aspects of the summing up.
22. As to the former aspect Mr Kourakis, of counsel for the appellant, made the point that the appellant's wife had not volunteered information to the police concerning the evidence which she ultimately gave, notwithstanding the earlier trials, until shortly prior to the last trial of the appellant - at a point when she had recently become estranged from him.
23. Her evidence was objected to partly because of its lack of weight (it being the product of a recollection some two years after the event) and, more importantly, because of what were asserted to be her suspect motives in giving a statement to the police. Counsel for the appellant at trial put it to the learned trial Judge that the major difficulty, which arose in connection with the admission of the evidence, was that the estrangement which had arisen between the accused and his wife had been the product of an assertion on her part, that he had been guilty of sexual abuse towards one of her children. The point was made that it was impossible, in the circumstances, to test Mrs Webb's evidence adequately in cross-examination, because that could only be done by placing before the jury highly prejudicial information concerning the allegation of sexual abuse. His argument was to the effect that the highly prejudicial aspects of the admission of the evidence far outweighed any logical probative weight that it could have had.
24. Following a voir dire examination of Mrs Webb the learned trial Judge rejected the submission, of the then counsel for the appellant, that the evidence ought to be excluded in exercise of his discretion.
25. In ruling upon the objection advanced, the learned trial Judge recognised that the submissions raised what he described as "a real question of discretionary exclusion", because of the dilemma that was faced by the defence. However, he said that, bearing in mind the importance of the evidence to the Crown case, he was not prepared to exercise his discretion to exclude. By way of supplementary comment, he later made the point that the fact that the defence could not safely reveal the precise ground of Mrs Webb's disaffection with the appellant would not stop it from getting a message to the jury that the marriage had suddenly broken down a week or two prior to trial and that, as a result, Mrs Webb's attitude and motives with regard to the appellant had changed fundamentally.
26. The complaint concerning the admission of Mrs Webb's evidence was coupled with a further complaint that the learned trial Judge was, in the circumstances, under an obligation to give to the jury a proper judicial warning about the dangers inherent in relying upon that evidence, due to Mrs Webb's antipathy towards the appellant. Mere reference to the defence submissions in that regard, it was said, was not sufficient.
27. Minds may well reasonably differ as to the ruling which was given in relation to this evidentiary material, particularly having regard to the prior unhappy history of the various trials of the appellant. However, at the end of the day, I find it impossible to say that the learned trial Judge fell into error in exercising his discretion in the manner for which he opted.
28. The evidence proposed to be led was potentially very important to the Crown case and had obvious strong probative value, if accepted. It certainly did remain open to the defence to establish that the evidence had to be considered against the background of the estrangement which had occurred.
29. Furthermore, in my opinion, the learned trial Judge fairly put before the jury the issues which would have to be addressed by it in relation to Mrs Webb's evidence. He directed attention to the fact that she was relying upon a two year old memory, that (according to Mrs Webb) the appellant was drunk at the time, and it was not until after the marriage had broken down, in the then very recent past, that Mrs Webb spoke to the police about her memory of the events of the night in question. He stressed that, obviously, she had had a very marked change of attitude with respect to her husband; and that they would have to make a judgment about that situation. He reminded the jury that the defence had argued that it was unsafe for them to place any reliance upon her evidence, because of the combination of the factors referred to. He stressed that the jury could not act upon her evidence unless they were satisfied beyond reasonable doubt that it was reliable.
30. In my view these were adequate directions and there is no force in the complaint made.
31. It was further asserted that the directions related to the evidence of Dr Brady were inadequate because, although there was evidence that the relevant injury to Erin would cause significant bleeding, it was not possible to determine the rate of bleeding with precision. It was argued that, on the evidence, the possibility that the injury had been sustained prior to meeting the appellant had not been excluded. On that basis, the learned trial Judge had, it was said, erred in suggesting to the jury that Dr Brady's evidence actually supported the complainant's account, absent a specific direction that such evidence had not excluded the possibility that the injuries had been sustained prior to Erin meeting the appellant.
32. It is true that, in the course of his summing up, the learned trial Judge did not, in fact, make the specific point that Dr Brady's evidence did not exclude the possibility that the injuries had been sustained prior to meeting the appellant. What he did say was that the injury which Erin received would have bled freely and immediately; and that it would have been very painful, according to the medical evidence.
33. In the course of his summing up he invited the attention of the jury to a point which had been pressed by the Crown Prosecutor in relation to that aspect, namely, that, if injury had sustained at an earlier time before Erin had met the accused at McDonald's garage, it would have been painful and bled freely and quickly at that time. What he further said in this regard was - "Then the Crown says - and this is really picking up Mr Pearce's address with the evidence upon which he relies for support for his observations - wouldn't she have complained straight away if someone else had interfered with her? Wouldn't she have gone back to her father? Wouldn't she have told the accused at McDonald's garage, before getting into the car? If it wasn't the accused who did it, why not say who it was? Why make a false accusation?Well, you have to set against that the possibility that she could have motives that we just don't know about."
34. It seems to me that the effect of this direction was, indeed, to invite the jury to consider the alternative proposition put by the defence. It certainly did not infer that there was any evidence given by Dr Brady which excluded the possibility of an earlier incident giving rise to the injury. I remain unpersuaded that there is any weight in this complaint.
35. Both at trial and during the course of the appeal much was said on behalf of the appellant regarding evidence given by the complainant, on various occasions, concerning the time when she left home. It was an important plank of the defence case that her evidence before the jury differed from what she had stated on previous occasions.
36. It will be recalled that Erin's evidence in chief was that she left home after watching most of Baywatch, a programme which concludes at 8.30 pm. It emerged in cross-examination that she had said in previous statements and at an earlier trial that she left home between 7.00 and 7.30 pm and had only watched a bit of Baywatch. The importance of the inconsistency of the defence case was that it was asserted that Erin may well have sustained her injury prior to meeting the appellant. Indeed, a thesis was developed to the effect that this might well have been the case, reference being made to possible interaction with some lads referred to in the summing up as "the Johnson boys".
37. Early in the summing up the learned trial Judge commented - "Mr Edwardson is perfectly right when he says that it is not for the defence to show who might have committed this crime. Obviously, someone did it. It is not disputed that the girl was interfered with by someone that night, but it is not for the accused to act like Sherlock Holmes and present to you any theory about who it might have been. A suggestion appears to have been made that the Johnson boys could have been the culprits, but it is not, as I say, for the defence to prove to you who did this. It is enough for them to say, 'It was not the accused; the Crown has not proved it is the accused; you do not serve the interests of justice in convicting an innocent man'.
Do not think that, because the defence have not demonstrated a convincing rival - that may be your view, I do not know - that, therefore, the defence must fail. That would be to throw the onus of proof onto the accused and that would not be right. The burden of proof lies always on the Crown."
38. He did not subsequently refer to that thesis in specific terms, but directed attention to the cross-examination which was designed to attack the complainant's memory, her recollection, her reliability and also her truthfulness. He said that all those things were matters for the jury to take into account. Having spoken in those most general terms he then went on merely to make the comment - "I expect you'll make some allowances for the imperfections of memory, as you would in the case of everyone in those circumstances. There is a question of how much allowance you are willing to make and what the topic might be. These are all jury questions, ladies and gentlemen, and you will make your assessment in the light of what she said and your impression of her in the witness box just as you do with the accused and other witnesses."
39. It seems to me that, when the summing up is read as a totality, in the context of the matters in issue at the trial, there can be no doubt that the jury must have been well aware of all aspects of the issue of timings and the alleged inconsistent statements; and that the summing up adequately covered these questions.
40. Major questions ventilated on the appeal were what was said to have been a failure of the learned trial Judge to put the defence case and an asserted serious imbalance in the summing up, to the prejudice of the appellant. These aspects are interrelated and best discussed together.
41. It is trite to say that it is the proper function of the trial Judge to summarise the relevant evidence and explain how it bears upon the forensic issues, in a manner which is balanced and fairly puts the cases of the prosecution and the defence respectively. (R v Ali Ali (1982) 6 A Crim R 161, R v Courtney-Smith (No. 2) (1990) 48 A Crim R 49 ("Courtney-Smith")).
42. As the court said in Courtney-Smith it is, however, important to bear in mind that - "The assessment of the overall balance requires a consideration of the whole of the summing up. Isolated phrases taken from here and there are no substitute for a consideration of the entire charge, looked at as a whole and its context in the trial. In many cases the summary of the Crown's case on the facts will necessarily take somewhat longer than the summary of the case for the accused. Often, the accused may give no evidence or may call only character evidence. The Crown's case being circumstantial may require some little elaboration. It is not the length of time devoted to the case of the Crown or the accused which is in issue. It is the fairness, balance and impartiality of the summing up which the appellate court must review and safeguard."
43. The relevant principles bearing upon the requirements of the summing up in this respect were spelt out by me in the course of my reasons for decision in R v Machin (Court of Criminal Appeal, 20 September 1996 (Judgment No S5814.2), unreported, available in SCALEplus) ("Machin"), which were concurred in by the other two members of the Court and do not here require reiteration in detail.
44. As I there pointed out it is an essential requisite that there be explained to the jury, in a detached and dispassionate manner, the substance and legal implications of the defence. Care must be taken, in the mode of expression employed in promoting any personal views of the trial Judge, because of the potential impact that this may have upon the jury. On the other hand it must be recognised that a summing up will not be held to be unbalanced if it accurately reflects the strength of the case for the prosecution, on the one hand, and the weakness of the case for the defence, on the other (R v O'Neill (1988) 48 SASR 51).
45. It is also trite to say that the authorities render it quite clear that it is clearly within the prerogative of the trial Judge, generally speaking, to express opinions on the facts, provided that it is, at the same time, made clear to the jury that it is, exclusively, their function to decide factual disputes; and that they are entitled to reject actual or apparent views proffered (Courtney-Smith at 56, R v Glover (1987) 46 SASR 310 at 314, R v Zorad (1990) 19 NSWLR 106-7 ("Zorad")). However, it is a requirement that any such views be expressed with moderation (Zorad at 107) and that the trial Judge does not, inappropriately, assume the mantle of an advocate for the Crown in a manner which renders the summing up unfair and unbalanced (Broadhurst v The Queen [1964] AC 441 at 464, R v Hulse (1971) 1 SASR 327 at 334, Green v The Queen (1971-1972) 126 CLR 28 at 34 ("Green")).
46. Nothing which was said in Machin is to deny the above propositions. However, the point there sought to be made is that the dicta indicating the right to express a personal view of the facts were not intended to constitute a carte blanche for a trial Judge to emphasise unduly the particular strengths of a prosecution case in a manner which is inconsistent with a fair, balanced and impartial analysis of the issues which a jury must consider. It was stressed that, whilst balance will, of necessity, constitute a reflection of the relative strengths of the Crown and defence cases, it will rarely be appropriate for a trial Judge to propound what is tantamount to a direct expression of his or her personal, concluded assessment of a critical issue in the trial, let alone what an appropriate verdict ought to be (Bourke v The Queen (1988) 62 ALJR 425).
47. The line to be drawn will, of course, always be a question of degree. As was said in Machin - "Where a judge expresses personal views 'there is a danger of the jury being over awed by the judge's views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge's views" (R v Hulse (1971) 1 SASR 327 at 335, approved in B v The Queen (1991-92) 175 CLR 599 at 605 - where Brennan J (as he then was) also made the point that 'comment must stop short of over awing the jury. It must exhibit a judicial balance so that the jury is not deprived 'of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence'."
48. As a matter of common fairness the extent of the danger postulated in Machin in this particular case must necessarily be assessed. As was pointed out in that case, it is, in reality, a contradiction in terms, on the one hand, to say to the jury that the facts are for them and then, on the other, to undermine that direction by stating a view in such positive terms, with the authority of the judge, that the jury would be left with the impression that it ought "not to exercise their minds freely (as in law he has told them they must do) but instead to be guided by the factual conclusions he volunteers to them" (R v Pavlukoff (1953) 106 CCC 249 at 267. See also Southwell J in R v Nation (1995) 78 A Crim R 125 at 130).
49. In B v The Queen (1992) 175 CLR 599 at 606, Brennan J (as he then was) reiterated what has been said so often before - whether or not a trial Judge has gone too far in expressly or impliedly deprecating a defence case "depends on the impression gained by reading the summing up as a whole". It is a quite impermissible exercise to dissect out arguments of a summing up and criticise them in isolation (Courtney-Smith). Moreover, it must be remembered that, as Gibbs CJ said in Cleland v R (1952) 151 CLR 1 at 10 - "It is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence. In what manner, and in what detail, this should be done must of course depend on the circumstances of each case."
50. It is, thus, not for an appellate court to seek to dictate the precise style of summing up to achieve the requisite end result.
51. In the instant case, early in the charge to the jury, the learned trial Judge prefaced his analysis of the evidence by indicating that he proposed to say something about certain aspects of the case in the hope that "it may assist you to a right decision". Having then proceeded to analyse what he perceived to be key aspects of the Crown and defence cases he then concluded in these terms - "Well, ladies and gentlemen, I do not want to say anything more about the evidence and counsel's addresses than that. I will just make one observation in closing. I have said that you must scrutinise the evidence of Erin Puxley with the greatest care, bearing in mind how easy it is to make a false accusation which it might be difficult for the person concerned to repel. I would have thought, however, ladies and gentlemen, that it would be unlikely that your judgment about her would be conditional on her ability, or inability, to remember every detail of what she claims to have happened in the motor car and by the side of the road. If it had been an adult - let us suppose, for the sake of argument, that something did happen along the lines that she described. Let us suppose that it was an adult who was the victim. You would expect the adult, would you not, to be terrified and, perhaps, not to give a blow by blow or movement by movement description and to be quite confused, perhaps, afterwards when asked to recall precisely what happened, who moved where and what the juxtaposition of the two people were and when something happened and how long it took. Well, if that is a fair observation to make about an adult, how much more sound it must be in the case of an 11 year old. You cannot use that as a justification for real error, if you think that significant errors are exposed, or weaknesses or inconsistencies are exposed, in that way in her evidence. But in the end, ladies and gentlemen, you might think that it is the total picture of what she said that counts. It must be tested, all of that evidence. But what is the impression on your judgement which is left at the end by what the girl said? Does it get any support from the other evidence upon which the Crown relies and, in particular, from Dr Brady: that this was a severe injury, that its effect was such that she had to give the girl a general anaesthetic before she could make a proper examination of her vagina; that the injury which the girl received in that sexual interference would have bled freely and immediately and would have been very painful. Look at it all, ladies and gentlemen. I do not mean by that that you should necessarily think that the accused has been proved to be the man responsible. That, as I say, is a matter for your judgement."
52. The fundamental complaint made by Mr Kourakis, of counsel for the appellant, is that making the foregoing observations, in the setting in which they were in fact made, was positively propounding what would inevitably have been taken as a personal assessment of the evidence on the part of the trial Judge. It was, he contended, a strong indication of his view that the inconsistencies in the complainant's evidence relied upon by the defence ought to be discounted; and that the jury was being asked to assume the correctness of the narrative which he had given. As he put it, the implied assumption of the complainant's veracity and the direction to discount the inconsistencies in her evidence constituted a clear indication to the jury that the view of the learned trial Judge was that the accused was guilty and that the "right" verdict was one of guilty.
53. Mr Kourakis also stressed that, following strong complaint by counsel for the appellant as to the directions above cited, the learned trial Judge, in redirecting the jury, also had this to say - "You may have deduced that I have a view on that subject, but I say again, it is not my view of the matter, ladies and gentlemen, that matters, it is yours; and I said earlier that if you disagree with any view that I may appear to be expressing, then you must ignore what I say and follow your own judgement."
54. Mr Kourakis argued that such a statement strongly compounded the problem arising from the original direction to the jury, in that it emphasised that the learned trial Judge obviously had a strong view about the guilt of the appellant. He contended that this was recognised by the learned trial Judge himself when the jury, having ultimately retired, counsel renewed his objection saying "so Your Honour has, in effect, told them that your view is that the accused is guilty". To that the learned trial Judge responded "I don't resile from that, I don't apologise for it or withdraw it and if they get that impression, then they'll get an accurate impression." In effect Mr Kourakis submitted that this was the type of situation condemned by the High Court in Green.
55. Ms Abraham, of counsel for the respondent, argued that this attack on the summing up presented a distorted view and failed to have regard to the impact of it, considered as a whole. For example, she directed attention to the fact that the full re-direction to the jury was expressed in these terms - "Ladies and gentlemen, I just want to say two or three things briefly by way of addition or qualification to what I put to you towards the end of the summing up by way of comment of my own. It is important that you have a balanced view and that I express a balanced view myself on those subjects. I spoke of the inconsistencies and memory gaps and other such matters in the girl's account of what, according to her, happened in the car. Also, I spoke about those questions that she was asked, about what she said on earlier occasions. Of course, a lot of my observations were predicated on the assumption, it might be said, of the accused's guilt. How would an innocent adult feel and what sort of coherent account could an innocent person - innocent in the sense of telling a truthful story, that is - in such circumstances, and how much more is an 11-year-old child likely to be disadvantaged in giving a complete and accurate account afterwards? I do not want you to think, ladies and gentlemen, that that is assuming the guilt of the accused. The observations were only intended to assist you in reaching a conclusion, if you could, about that. What that conclusion might be, of course, is a matter for you, not for me. Of course, that's only one of the possibilities, that the girl's imperfections as a witness, in the respects to which I have referred, can be explained by the terror of a young rape victim who's been assaulted by the accused. Another explanation, obviously, to which the defence would appeal, is that that doesn't properly describe her at all; on the contrary, she is a young witness who is not telling the truth, who is not reliable, and because she had been deliberately untruthful in identifying the accused she is being caught out, because she can't tell a coherent, complete story simply because things didn't happen in the way she said. You may have deduced that I have a view on that subject, but I say again, it's not my view of the matter, ladies and gentlemen, that matters, it is yours; and I said earlier that if you disagree with any view that I may appear to be expressing, then you must ignore what I say and follow your own judgment. I spoke of a total picture that might appeal to you, or to which you might have regard, which would embrace, not just the evidence of Erin Puxley, but the other witnesses, including Dr Brady as well; but the defence, of course, put before you a different total picture, which emphasises, by way of example, the matter of times, earlier in the evening - what time did the girl leave home. I just want to emphasise, ladies and gentlemen, that the decision is for you and it would be quite wrong, of course, to regard any remarks that I made about a total picture as the end of the matter, particularly where they are predicated, as they were, in part, on the possibility that the girl was reliable but simply terrified. All the other possibilities you must bear in mind, and if you're left with a reasonable possibility of the accused's innocence, then obviously you must give him the benefit of the doubt. On the other hand, if you are satisfied, beyond reasonable doubt, that he was guilty of this crime, then that should be your verdict. Thank you, ladies and gentlemen."
56. In my view, when the comment sought to be impugned by Mr Kourakis is read in its proper context, a totally different picture emerges. I consider that it simply cannot be said that the jury had the situation presented to it in a manner whereby it was likely to be overborne by the force of his apparent views of the evidence. What was put to them, in both the main summing up and the re-direction, was, in reality, no more than a reflection of what was an extremely strong - if not compelling - Crown case on the one hand, and a very weak defence case on the other, assuming that Erin made a favourable impression on the jury as a witness.
57. Moreover, it is, I consider, erroneous to contend that, despite the comment made by the learned trial Judge to trial counsel, that he was, impermissibly, propounding to the jury what verdict was appropriate in the circumstances. Properly considered in context he was, in fact, propounding a view about the criticisms made concerning Erin's credibility. Whilst it may well be that an acceptance of the points made might tend to lead to a particular verdict at the end of the day is quite another matter.
58. I also agree with Ms Abraham when she said that, a careful review of the whole of the summing up did, in fact, invite the attention of the jury to all factual issues relevant to the defence case in a proper manner, given the background of the address of counsel and the mode of conduct of this relatively brief trial. Further, I do not accept the somewhat ingenious argument that the assumption suggested by the learned trial Judge, for the purposes of the topic being discussed by him, unfairly and prejudicially invited the jury to assume guilt on the part of the appellant. On an objective reading of the summing up it could not reasonably and logically be taken in that sense.
59. I do not see any requirement to discuss the arguments proffered on this general aspect of the case in greater detail. I content myself by saying that I have carefully and anxiously examined the whole of the summing up in light of the criticisms made. I do not consider that the learned trial Judge transgressed any of the principles to which I have referred, and I accept that he adequately put the defence case to the jury. Whether I would have adopted the format, sequence and mode of expression employed by him is not to the point. He is not to be criticised for style, as contrasted with substance.
60. I would reject those grounds of appeal which complain of failing to put the defence case and alleged imbalance in the summing up.
61. It only remains to direct attention to the grounds related to the asserted failure of the learned trial Judge to give specific warnings concerning the proper approach to Erin's evidence; and also that of the appellant's wife.
62. In the course of his submissions, Mr Kourakis appeared to seek some comfort from the reasoning expressed in Simmons v R (1997) 68 SASR 81 ("Simmons") as to Erin's evidence. The short riposte to that line of endeavour is that, as was pointed out by Ms Abraham, section 12a of the Evidence Act specifically abolishes any requirement to give a corroboration warning in relation to the evidence of a young child (See R v W (Court of Criminal Appeal, 25 November 1993 (Judt S4282) unreported, available in SCALEplus)); and Simmons does not stand as a proposition that a general warning is, nevertheless, always required in relation to evidence of sexual abuse given by a young child. That is not to say that the particular circumstances of a case may not render it necessary for the trial Judge to direct the attention of the jury to apparent problems concerning the evidence of a specific young child; and to warn them of the need to scrutinise the relevant evidence, for reasons explicitly stated. These may typically bear on factual issues arising as to possible concoction, contamination or patent inconsistencies.
63. The learned trial Judge did, in the very early stages of adverting to the factual issues, point out to the jury -
* the seriousness of the allegations against the accused;
* the fact that such allegations are, inherently, easy to make and difficult to refute by other than a bare denial;
* the need to scrutinise Erin's evidence with great care and only act on it if satisfied beyond reasonable doubt that she was telling the truth, particularly bearing in mind her cross examination concerning aspects such as her memory of relevant events, her reliability in light of the asserted inconsistencies in her evidence and her truthfulness.
64. This was, in the circumstances, plainly an appropriate and acceptable direction to the jury, beyond which the learned trial Judge was not bound to go.
65. So far as the evidence of the appellant's wife was concerned the learned trial Judge specifically told the jury - "Now, there are certain things you've got to bear in mind before you decide whether you can accept Mrs Webb's evidence. In the first place, and obviously, she's relying upon a two year old memory. Even assuming she is an honest witness, doing her best to recall a conversation, she's doing her best at a two year span of memory, without any notes to help her. Then, as I said, the accused, according to Mrs Webb, was drunk, and we certainly know he had done a deal of drinking. And then, the marriage broke up last month, and it wasn't until after that that she spoke to the police about the events of January 1995. Indeed, Mrs Webb said that she had been present at the earlier trials to support her husband. Obviously, she has had a very marked change of attitude with respect to her husband. That does not necessarily make people untruthful witnesses, ladies and gentlemen, but plainly it can. That is something which you have to weigh up. It is something, obviously, that the [?defence] puts to you as discrediting Mrs Webb or, at least, makes it unsafe for you to place any reliance on her. Again, I say, ladies and gentlemen, by way of example, that it is not enough if you think she might be telling the truth on this subject, or that her version is probably correct. You cannot act on that piece of evidence unless you are satisfied beyond reasonable doubt that the evidence is reliable."
66. On the face of it this was a fair, complete an appropriate direction on the topic and it is impossible to conclude that anything further was required. In particular, it appears to me, plainly, to satisfy the concept espoused in R v Faure (1993) 67 A Crim R 172 at 179.
67. It follows then, that none of the grounds of appeal have been made good.
68. I would, accordingly, dismiss the appeal.
WILLIAMS J:
69. This is an appeal against conviction for rape upon which a jury returned a guilty verdict in the Supreme Court on 11 February 1997.
70. The information alleges that on 8 January 1995 the appellant had sexual intercourse with the complainant by inserting his finger into her vagina. The appellant was aged 33 at the time of trial and his alleged victim (born 15 September 1983) was aged 13 years 5 months at the time of this trial and 11 years 3 months at the time of the incident.
71. This trial was the fourth upon this information and the complainant gave evidence at each trial. Particulars of the trials are as follows: Trial No. Trial CommencementDate Trial Judge Result 1 14 August 1995 Judge Lunn Guilty 2 3 September 1996 Judge Lee No Verdict 3 4 February 1997 Cox J Mistrial 4 6 February 1997 Cox J Guilty
72. On 14 May 1996 the Court of Criminal Appeal (Cox J, Prior J and myself - Judgment No.S5580) set aside the guilty verdict returned at the first trial by reason of a remark made by the prosecutor. At the second trial the jury were unable to reach a verdict. At the third trial the jury was discharged after a witness made a gratuitous comment.
73. On the evening of 8 January 1995 the complainant was walking her dog in her home town of Bute when she met the appellant some time after 8.30pm. The complainant accompanied the appellant in his car to the town of Alford (some 20km away) where he went to look for petrol. Upon the Crown case the appellant stopped his car in the course of this journey and digitally raped the complainant. According to the complainant, the assault took place in the car and by the roadside against her will. It is not in dispute that on reaching Alford the complainant made complaint at the Alford general store and service station but not in the appellant's presence. The complainant was observed to have debris in the form of twigs and foliage in her hair and the back of her shirt was dusty. A medical examination disclosed injuries inflicted with a degree of violence; the examining medical practitioner noted the severity of the injuries which must have been painful when inflicted and would have caused the complainant to bleed freely and quickly from the vagina. The complainant also suffered abrasions which were consistent with her story. Forensic evidence established the presence of the complainant's blood on the front passenger seat of the appellant's car.
74. Later on the night of 8 January 1995 the appellant spoke by telephone to a friend Susan Ball just before 11pm; the appellant told Ms Ball that he had picked up a little girl he knew and when she got out of the car she was "ranting and raving". Upon the story which the appellant gave in Court there was no basis upon which he had reason to make such a comment and he denied making it. The complainant stayed at the Alford store with the proprietor and his wife until the police arrived. However, the appellant had previously driven off upon being informed that the complainant was to remain at the store.
75. At the fourth trial, the appellant's wife (who by now had become estranged from her husband) gave evidence that on the evening of 8 January 1995 the appellant came home about 10pm and said "We're going to Adelaide. The police are after me. I picked up somebody and some shit happened."
76. The appellant acknowledged having taken the complainant in his car from Bute to Alford but denied any impropriety. By way of defence he asserted the unreliability of the complainant's evidence. In particular his counsel explored in evidence for how long the complainant had been out with her dog after first watching a television programme.
77. The defence exploited the variations in the complainant's story which defence counsel described as "inconsistencies" - particularly as to how much of the episode of the television programme "Baywatch" the complainant had watched before walking her dog. The defence sought to show that someone other than the appellant may have been responsible for the complainant's injuries and sought to emphasise the opportunity for this during the hour or so preceding the time of the complainant's meeting with the appellant. Therefore whether the complainant left off from watching "Baywatch" and went walking at 7.30pm or somewhat earlier at 7pm assumed importance to the defence case. The complainant did not have a watch.
78. Bearing in mind the strength of the Crown case it is not surprising that the Trial Judge formed a personal view which he acknowledged to counsel in the jury's absence.
79. The Trial Judge summed up in an orthodox fashion which included directions to the jury as to the functions of judge and jury and the jury's obligation to determine the facts irrespective of any views which the Trial Judge or counsel might express. Having completed his remarks His Honour then added certain views of his own as to the way in which the jury might regard the complainant and might make allowance for her evidence as a child in a way different from that which would be appropriate in case of an adult.
80. The defence complained that these observations were predicated upon the hypothesis that the complainant was telling the truth. The defence submitted that the Trial Judge was expressing his own assessment of the complainant as a credible witness and that implicit in His Honour's remarks was the judge's view that the appellant was guilty.
81. Defence counsel having protested as to the "sting in the tail" of the summing up, the Trial Judge then recalled the jury and gave a supplementary direction in terms as follows: "Ladies and gentlemen, I just want to say two or three things briefly by way of addition or qualification to what I put to you towards the end of the summing up by way of comment of my own. It is important that you have a balanced view and that I express a balanced view myself on those subjects. I spoke of the inconsistencies and memory gaps and other such matters in the girl's account of what, according to her, happened in the car. Also, I spoke about those questions that she was asked, about what she said on earlier occasions. Of course, a lot of my observations were predicated on the assumption, it might be said, of the accused's guilt. How would an innocent adult feel and what sort of coherent account could an innocent person - innocent in the sense of telling a truthful story, that is - in such circumstances, and how much more is an 11-year-old child likely to be disadvantaged in giving a complete and accurate account afterwards? I do not want you to think, ladies and gentlemen, that that is assuming the guilt of the accused. The observations were only intended to assist you in reaching a conclusion, if you could, about that. What that conclusion might be, of course, is a matter for you, not for me. Of course, that's only one of the possibilities, that the girl's imperfections as a witness, in the respects to which I have referred, can be explained by the terror of a young rape victim who's been assaulted by the accused. Another explanation, obviously, to which the defence would appeal, is that that doesn't properly describe her at all; on the contrary, she is a young witness who is not telling the truth, who is not reliable, and because she had been deliberately untruthful in identifying the accused she is being caught out, because she can't tell a coherent, complete story simply because things didn't happen in the way she said. You may have deduced that I have a view on that subject, but I say again, it's not my view of the matter, ladies and gentlemen, that matters, it is yours; and I said earlier that if you disagree with any view that I may appear to be expressing, then you must ignore what I say and follow your own judgment. I spoke of a total picture that might appeal to you, or to which you might have regard, which would embrace, not just the evidence of [the complainant], but the other witnesses, including Dr Brady as well; but the defence, of course, put before you a different total picture, which emphasises, by way of example, the matter of times, earlier in the evening - what time did the girl leave home. I just want to emphasise, ladies and gentlemen, that the decision is for you and it would be quite wrong, of course, to regard any remarks that I made about a total picture as the end of the matter, particularly where they are predicated, as they were, in part, on the possibility that the girl was reliable but simply terrified. All the other possibilities you must bear in mind, if you're left with a reasonable possibility of the accused's innocence, then obviously you must give him the benefit of the doubt. On the other hand, if you are satisfied, beyond reasonable doubt, that he was guilty of this crime, then that should be your verdict. Thank you, ladies and gentlemen."
82. After the jury had withdrawn, an exchange between defence counsel and His Honour occurred: "COUNSEL: My difficulty is your Honour has told them that your previous observations were predicated on the assumption of the accused's guilt, in effect, you told them that you have a view on that subject, but then obviously gone on and told them 'Whatever I think doesn't matter, it's a matter for your consideration'. So your Honour has, in effect, told them that your view is that the accused is guilty. HIS HONOUR: I don't resile from that, I don't apologise for it or withdraw it and if they get that impression, then they'll get an accurate impression."
83. The appellant now complains in terms of ground 3 of the appeal notice that: "The fair trial of the appellant miscarried as a result of the imbalance in the summing up and the expression by the Trial Judge of his views of the evidence..."
84. In my view the Trial Judge was entitled to express himself as he did. I do not consider that there was risk of the jury being overborne by His Honour's comments. The jury's function was not usurped.
85. The principle to be applied was identified by Bray CJ, Walters and Zelling JJ in R v Joyce (1970) SASR 184 at 198-199: "The second matter is that it seems necessary to say again that so long as a judge makes it plain to the jury that the decision on the facts is for them, so long as he commits no error of law and does not misrepresent the evidence, either by positive misstatements or by omission so grave as to make what is said misleading, so long as he puts the defence as opposed to all the arguments in support of the defence, then he is not debarred from expressing his own view about the facts, nor from expressing that view with a certain strength. There may, indeed, be cases of comment so extreme as to be capable in the opinion of the court of appeal of producing a miscarriage of justice, but strong expressions on the part of the judge will not necessarily carry the case into the forbidden territory. In R v Choat this Court said: "There is no doubt that the whole trend of the summing-up was strongly adverse to the appellant, and that the comment upon this subject was much more pointed than is usual; but the nature and degree of any comment upon the evidence - so long as the facts are left to the jury - must rest entirely in the discretion of the judge who tries the case (R v Rhodes); subject only to the discretion of this Court to relieve against an apparent or apprehended miscarriage of justice. It is possible that the learned Judge said more than another might have said in the same circumstances, but he had the advantage of seeing the witnesses and hearing the addresses of counsel. It is impossible to say that the facts were not left for the determination of the jury, and 'even a judge is not disentitled to use advocacy if it is proper for the occasion' (R v Pope)." Speaking at large, it may be imprudent and impolitic if language is used by a judge which makes him appear a decided partisan. But we do not deny that the circumstances of a particular case may entitle the judge to convey his observations in direct and forceful terms. In neither instance will that necessarily afford a ground for the intervention of this court."
86. The Court then referred to the unreported decision of the High Court of Australia in Tsigos v R upon a special leave application on 14 April 1965. That case is instructive as a statement of principle but is also demonstrative of the scope for difference of opinion in its application. Tsigos was found guilty of murder and the leave application was directed towards the propriety of the following extract from the summing up: "When we resume I shall call to your mind the evidence that has been given in this case; the facts which are not contradicted or which are contradicted, and it is for you to make up your mind on the facts as they have been given in evidence here without fear of favour on your part, to say whether or not the Crown has proved the charge of murder or, if you are not satisfied of that, you then consider the question of manslaughter. I think I should tell you this, gentlemen, on the evidence before the court it is my duty to tell you that you will be flying in the face of the oath you took, namely to return a verdict on the evidence, if you were to return a verdict of acquittal, because on the evidence I can see no escape of the verdict of guilty of murder or manslaughter."
87. Barwick CJ (with the concurrence of Taylor, Windeyer and Owen JJ) said "The question which has exercised the Court's mind is whether by these expressions, taken in the context of the trial and of the summing up as a whole, his Honour conveyed to the jury that they could not, as distinct from should not, acquit the applicant. If I thought that the jury acquired or could have acquired this impression from the summing up, I should not be deterred from holding that the applicant's conviction should be set aside by the circumstance that the propriety of the summing up had not been raised before the Court of Criminal Appeal or that counsel had not taken any exception at the trial to this portion of the summing up. The departure from the fundamentals of a regular trial constituted by a direction to convict would be so great and its effect on the general administration of the Criminal Law so serious that the case would clearly be one for special leave. But the critical question remains, whether the expressions used by his Honour in the context of the trial were such as might have led the jury to think that they were being told in point of law that they could not acquit this applicant. ...He was entitled, to express to them his own view of the facts, reminding them that none the less they were the sole judges of them and at liberty to discard his views. This he did tell them. He was entitled to remind them of their oath to return a verdict according to the evidence. In my opinion, in the circumstances of this case, in expressing himself as he did he was doing no more than he was entitled to do, however direct and forceful the language in which he conveyed his observation, and however unnecessary, as I think it was, in this case to speak as he did. I do not think the summing up as a whole was calculated to or would convey to the jury that in point of law they must convict the applicant either of murder or of manslaughter."
88. In dissenting Kitto J said: "...The summing up would not, of course, be necessarily vitiated by an expression, even a strong expression, of his Honour's own opinion on these questions of fact, so long as he made it clear that he was not denying to the jury the right and the duty of giving effect to their own views whether they agreed with his or not. I express with diffidence my own opinion the passage was apt to be understood by the jury to mean that because of the view the Judge took of the evidence their sworn duty obliged them to convict the applicant of either murder or manslaughter. If there was any substantial likelihood of the jury gaining that impression the trial must have miscarried in a fundamental respect."
89. In the present case the appellant relies upon the decision of the Court of Criminal Appeal in R v Machin Judgment No.S5814.2 delivered on 20 September 1996. I was a member of that Court and concurred in the decision. The Court there considered dicta in some authorities since Joyce and concluded "that it will rarely be appropriate for a trial Judge to proffer what is tantamount to an expression of his or her personal assessment of the matter". The Court then suggested that modern authority was restrictive of Joyce. I am now satisfied that this observation in Machin was made per incuriam.
90. The decision of the Court of Criminal Appeal in R v Glover (1987) 46 SASR 310 provides a more recent statement of principle. I have obtained the summing up in Glover from the Court archives. It is in essentially the same form as the summing up in the case now under appeal. At 313-314 King CJ said: "Mr Eames second point was that his Honour's concluding remarks made certain observations about the case and the evidence and drew the jury's attention to certain points which pointed in the direction of conviction. Mr Eames claimed that these comments were so pointed as to have amounted to a usurpation of the function of the jury as the judges of the facts and as judges of guilt or innocence. I think that in order to understand what his Honour did it is necessary to refer very briefly to the structure of the summing up. His Honour referred in summary to the evidence of each of the important witnesses for the prosecution and to the evidence of the two accused persons. He summarised not only the examination in chief in each case, but also the points which emerged in the cross-examination. He then dealt with the salient points put by both counsel for the prosecution and counsel for the defence in the course of their addresses. He, therefore, put clearly and fairly to the jury the points made on both sides during the course of the trial. At the end he saw fit to suggest, for their attention, certain points which seemed to him to be important for their consideration. It is true that those points, if the jury attached weight to them, tended strongly in the direction of conviction. His Honour, however, on more than one occasion, and in particular immediately following his reference to those points, warned the jury that the facts were for them and that they should disregard his opinion and any views which he expressed if those opinions and views did not commend themselves to them. It is quite clear that a judge is entitled to give the jury such assistance as he sees fit upon the facts, provided he does so fairly. It is not a criticism of the summing up that he makes reference to points which tend in the direction of conviction if those points may fairly be made upon the evidence in the case and if he makes it clear to the jury that the facts are within their province and not within the trial judge's and that they are perfectly entitled and, indeed, ought to disregard his views if they see the case in a different light. In my view, the judge did no more than he was entitled to do. I do not think that what he has said, when viewed in the context of the summing up as a whole, can be regarded in any sense as a usurpation of the function of the jury and, in my view, the criticism of the summing up on this ground is unsound."
91. This is a restatement of the principle found in Tsigos and Joyce. Judicial minds may differ as to particular language which might lead to the "substantial likelihood" of a jury departing from its duty - as demonstrated by the dissenting opinion of Kitto J in Tsigos. Comment must stop short of overawing the jury and must exhibit a judicial balance so that the jury is not deprived of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence (see per Brennan J in B v R (1992) 175 CLR 599 at 605).
92. In the present case the Trial Judge told the jury that "You may have deduced that I have a view....". I compare the language used by His Honour (in the whole context of the passage quoted) with the treatment by the High Court of the summing up in Bourke v R (1988) 62 ALJR 425 at 425-426 where Mason CJ (speaking for the majority of the Court) said: "One question of general principle to which specific reference should be made arises from a comment made by the learned trial judge at an early stage of his final directions to the jury. His Honour said: "You may think that I have some view one way or the other on the ultimate question as to whether the accused's guilt has been established, and if you think that I have got some view one way or the other, then you can give that such weight as you think appropriate."
Viewed in isolation, that direction was plainly objectionable, if and to the extent that it might be understood as inviting or encouraging the jury to act on or to give weight to any view they might attribute to his Honour on the ultimate question as to whether the accused's guilt had been established (cf R v Perera [1986] 1 Qd R 221 at 220). His Honour's statement was, however, immediately followed by the following remarks:
"It is not my function or obligation to consider the question of [the accused's] guilt. It is yours. It is my function only to tell you what the rules are and to try to assist you by taking you to what seem to me to be some of the important aspects of the evidence."
Subsequently, in the summing up, the learned trial judge stressed to the jury that it was their function to decide the case on the evidence before them. At no part of the summing up did his Honour actually express any view about the accused's guilt or innocence.
While this aspect of the case has caused us some concern, we have come to the conclusion that in the context of the whole summing up the jury would not have been misled or diverted from the proper performance of their function by the above-mentioned comment of the learned trial judge."
93. Upon this formulation, the question, then, is whether upon the construction of the relevant summing up the Trial Judge by his comments caused the jury to be misled or diverted from the proper performance of its function.
94. Still more recently in R v Panagiotides (1991) 55 SASR 172 the Court of Criminal Appeal (Jacobs ACJ, Prior and Mullighan JJ) acknowledged the Trial Judge's right. Prior J at 174 said: "...a judge is always entitled to express his views of the facts, provided that he does so with moderation and provided always that he makes it clear that it is the jury's function (and not his) to decide the facts and that it is their duty to disregard the view which he has expressed (or which he may appear to hold) if it does not agree with their own independent assessment of the facts: see R v Zorad (1990) 19 NSWLR 91 at 106."
95. I can discern no error in the Trial Judge's expression of view in the present case.
96. In my view the summing up was balanced and properly put the defence case. I adopt the language of King CJ in R v O'Neill (1988) 48 SASR 51 at 62 - "...A summing up is not unfair because it accurately reflects the strength of the case for the prosecution on the one hand and the weakness of the case for the defence on the other..."
97. The young complainant had been required to give her evidence over and over again and the Trial Judge's comments - expressed as his own - could only have been helpful to the jury if they chose to take notice thereof. However, the jury could have been left in no doubt that they had to make up their own minds in all respects.
98. There are further grounds of appeal but they can be disposed of briefly.
99. Despite the submissions of the appellant's counsel I consider that the summing up contained adequate warning to the jury concerning the evidence of the complainant and her mother respectively. I regard the complainant's evidence as being substantially consistent over a long period of time after making the allowances which the Trial Judge identified when expressing his own view.
100. At an early stage of the summing up the Trial Judge foreshadowed that he would: "..say something about certain aspects of the case in the hope that it may assist you to a right decision, and I shall mention some of the points made by counsel in the addresses, but I won't attempt to be exhaustive about that; but as I said earlier, it is your view of the facts that matters, not mine, and if you disagree with anything I say about the evidence, or with any opinion that I may appear to be expressing, you must ignore what I say and follow your own judgment in the matter."
101. The appellant complained about the use of the phrase "a right decision" - although I note that in the course of argument no distinction was drawn between "a right decision" and "the right decision". In my view "a right decision" in the context means a "just decision". It is not to be regarded as a veiled invitation to convict. I reject the appellant's submission.
102. The appellant further complained about the sufficiency of the directions as to the evidence of Dr Brady (who examined the complainant). The way in which the injuries were inflicted were relevant to the question as to who may have been responsible. Upon the summing up the jury were made aware that the identity of the complainant's assailant was in issue and they were properly instructed as to how and the extent to which Dr Brady's evidence was an aid in determining that issue. The jury were made aware that the complainant's story was consistent with Dr Brady's observations but it was also made clear to the jury that this did not necessarily lead to the conclusion as to the appellant's guilt. I consider the directions to have been adequate in this respect.
103. I would dismiss the appeal.
BLEBY J
104. The nature of the evidence led in the trial and the critical passages of the learned trial judge's summing-up have already been adequately set out in the judgments of Olsson and Williams JJ, and I need not repeat them.
105. I deal first with the admissibility of and the direction in relation to the evidence of the appellant's wife. The nature of the argument is recorded by Olsson J. I am sympathetic to the practical restrictions placed on the defence in cross-examining Mrs Webb as to her belated reporting to the police of the conversation she said she had with her husband. The restrictions of which the defence complained involved allegations of sexual abuse of one of Mrs Webb's children by the appellant said to have given rise (at least in part) to the breakdown in their relationship, and the obvious prejudice to the appellant if that were aired. However, that allegation was really only of secondary significance and did not constitute the prejudicial restriction it was made out to be at the trial. The real weakness which the appellant could, and did, seek to exploit at the trial was the lateness of Mrs Webb's revelation and only after a recent acrimonious marriage breakdown, coupled with the fact that in the previous trials, with apparent full knowledge of the undisclosed conversation, she had consistently and unreservedly supported her husband in maintaining his innocence. Indeed, Mr Kourakis, for the appellant, properly concentrated on that ground in arguing that the evidence was inherently unreliable and should not be admitted. The practical restrictions on full testing of her motives were put only as a secondary but supplementary consideration.
106. I agree that there was no error in the exercise of the trial judge's discretion to admit the evidence. The question of its veracity was properly a matter for the jury.
107. The direction in relation to Mrs Webb's evidence has been fully set out in the judgment of Olsson J. I agree that it was a fair, complete and appropriate direction in the circumstances.
108. So far as the directions concerning Dr Brady's evidence are concerned, I agree that they were adequate for reasons which have been given by Olsson J.
109. Ground 2 of the appellant's grounds of appeal complained that the learned trial judge failed properly to put the defence case to the jury concerning alleged inconsistencies between the evidence of the complainant at the trial and statements, sworn and unsworn, given on previous occasions. These inconsistencies were sought to be exploited by the defence for two reasons: first to show that there was insufficient time for the events as described by the complainant to have occurred during the car journey and secondly to show opportunity for an attack to have occurred before the complainant met the appellant. The essence of the complaint about the summing-up was that the detailed criticisms of the complainant's evidence were not put to the jury by the trial judge.
110. In addition to the two passages referred to by Olsson J, I set out some further relevant passages of the summing-up in relation to this aspect of the complainant's evidence: "So we come to (the complainant), and you must scrutinise her evidence, and especially her evidence identifying the accused, with great care and only act on it if you are convinced that she is telling the truth when she says that the accused was the person responsible... You will bear in mind the cross-examination which was designed to attack her memory, her recollection, her reliability, as well as her truthfulness, and you will remember all those questions about what she said on earlier occasions, either to the police or in one of the earlier trials, and all those things are matters for you to take into account. I expect you'll make some allowances for the imperfections of memory... Now, I'm not going through her evidence. It's not a complicated story and you've heard it only recently from her and you've heard certain features of it highlighted by counsel... (I)f she's reliable, it must have been the accused, but the question is whether she is reliable."
111. Not only did the summing-up, standing alone, adequately deal with the situation, but it must be read in context. The evidence had been given over a period of three days, a Thursday, Friday and Monday. The prosecutor addressed the jury on Monday afternoon. Defence counsel addressed the jury on Tuesday morning, followed immediately by the learned trial judge's summing-up. Both were completed within one and half hours. As was to be expected, defence counsel exploited the inconsistencies in the complainant's evidence. The jury had that address, and particularly those aspects of it, fresh in their mind when the trial judge came to sum up. It was not as though the jury needed reminding in every detail about what they had just heard. In my opinion there was no inadequacy in the direction on those issues.
112. Related to that ground is the complaint that the trial judge failed to warn the jury to scrutinise the complainant's evidence carefully because of her age. I agree that s12a of the Evidence Act 1929 is a short answer where the evidence of a child is uncorroborated and where the child gives evidence on oath or its unsworn evidence is assimilated to evidence given on oath under s12(2). Reliance on Simmons v R (1997) 68 SASR 81 is unhelpful. Of the three very young children concerned in that case, the Court of Criminal Appeal found that the evidence of one of them could not properly have been assimilated to evidence given on oath and therefore required corroboration under s12(3). In the case of another the trial judge had not directed his attention to the requirements of s12(2), and therefore no conclusion could be reached as to whether the evidence could properly be assimilated to evidence given on oath, and in the third case the evidence, although assimilated, was still that of a very young child, then aged 6 about whom the trial judge was "very uncomfortable" about allowing her to give evidence at all. However, having acceded to a request that she be examined on the voir dire, defence counsel was not permitted to put any submission that she should not give unsworn evidence. The question of a warning therefore became somewhat academic in the circumstances, although as a matter of practical reality was obviously needed. However, the authorities relied on were cases which preceded the enactment of s12a.
113. However, s12a dispenses with the need for a warning where the evidence of a child is uncorroborated. The position here is a fortiori because, as Mr Kourakis properly conceded, there were three significant items of corroboration as to the identity of the appellant as the person who raped the complainant. One was the evidence of Dr Brady to the effect that the wound inflicted on the complainant would have bled freely and quickly and would have been painful, coupled with the complete absence of any complaint from the complainant to anyone before getting into the appellant's car. One was the evidence of Mrs Webb as to the conversation with her husband that evening to which I have already referred and which was the subject of objection. The third was the evidence of Susan Ball as to the telephone conversation later that evening to which Olsson J has already referred. In my opinion there was no misdirection constituted by any failure to warn about acceptance of the complainant's evidence by virtue of her age.
114. That brings me to the balance of the summing-up. Much of the argument was based on what this Court said recently in R v Machin (Court of Criminal Appeal, 20 September 1996 (Judgment No 5814) unreported, available in SCALEplus). Machin decided that the trial in that case miscarried because of a number of defects in the summing-up, only of which is pertinent to this case, namely the balance of the summing-up said to be in favour of a conviction. If Machin on that aspect of the case, decided a matter of principle, this Court should follow that decision unless persuaded that the earlier decision was clearly wrong: R v Gilson (1990) 54 SASR 191.
115. However, I do not regard Machin as establishing any principle which necessarily dictates the outcome of this case. It contains, on this aspect, a useful but, it now seems, incomplete collection of helpful judicial pronouncements, mostly obiter dicta, about the extent to which and the manner in which a judge may or may not express or convey to the jury his own views on the facts of the case. The Court there identified a reasonably well-established principle and applied it to the facts of the summing-up before it. That principle is that a trial judge may, generally speaking, express opinions on the facts provided, as Olsson J says, that it is made clear to the jury that it is their exclusive function to decide factual disputes, that they are entitled to reject whatever views the judge may have expressed, and provided that any such views are expressed with moderation and in a manner which does not render the summing-up unfair and unbalanced.
116. For myself, I have no difficulty with those parts of the judgments referred to by Williams J in R v Joyce [1970] SASR 184 at 198-199, R v Glover
(1987) 46 SASR 310 at 313-314, R v O'Neill (1988) 48 SASR 51 at 62 and R v Panagiotides (1991) 55 SASR 172 at 174. It is suggested that what the Full Court said in these cases should be qualified by obiter dicta expressed in R v Pavlukoff (1953) 106 CCC 249 and in particular at pp266-267, to the effect that because of his position as "the great neutral" the trial judge should express no opinion on the evidence at all. I disagree. The passages concerned were referred to in Machin, but were the views of only one of five members of the Court of Appeal of British Columbia in 1953. They were acknowledged to be not in accordance with dicta from English Courts similar in effect to the South Australian authorities mentioned above, and were not in accordance with dicta cited with approval by the other members of the Court. They are accordingly not binding on this Court, and were delivered well before the body of Australian and, particularly, South Australian authority to which Williams J has referred. I am not aware of any other case in which they have been adopted.
117. Whether a trial judge has overstepped the permitted mark in a particular case will, in most cases, be a matter of impression based on the summing-up as a whole: B v R (1992) 175 CLR 599 per Brennan J at 606. It may be a matter, as in any case where a line has to be drawn, on which views may legitimately differ. Concentrating on a particular discrete passage or turn of phrase out of context will be unhelpful.
118. The argument for the appellant in this case was based largely on the structure of the trial judge's summing-up. Having given some general and entirely appropriate directions about the role of the jury in deciding the facts, and some general directions about the law relevant to the charge in question, he referred to the addresses of counsel and said:
"Except perhaps in certain instances, I do not intend to comment on the addresses, but you should bear them in mind when you come to deliberate upon your verdict. I shall say something about certain aspects of the case in the hope that it may assist you to a right decision, and I shall mention some of the points made by counsel in the addresses, but I won't attempt to be exhaustive about that; but as I said earlier, it is your view of the facts that matters, not mine, and if you disagree with anything I say about the evidence, or with any opinion that I may appear to be expressing, you must ignore what I say and follow your own judgment in the matter."
119. I pause there to say that I do not read that passage, nor would I understand any reasonable juror to read it as suggesting that there was some "right decision" according to any view of the evidence that may be expressed by the trial judge. His Honour had earlier in the summing-up referred to bringing in "a true verdict according to the evidence". I think he meant little more than that. I do not believe he was here pointing to his later "observation in closing" at the end of the summing-up which was the main target of the attack, and which has been set out in full in the judgment of Olsson J.
120. Even that passage must be taken in context, including the many reminders that the trial judge gave throughout his summing-up to the effect that whatever his views of the case might be, the facts were for the jury. When so read, I do not see that passage as transgressing the permissible limits reflecting, as it did, the strength of the prosecution case. The learned trial judge gave a possible (but not the only) explanation which the jury had to consider for some of the inconsistencies in the evidence which the defence was clearly trying to exploit. It was not an explanation which reversed the onus of proof or which directed the jury to begin with an assumption that the rape took place during the journey to Alford. His Honour merely said, in effect, that if that happened (and he was not directing that the jury should so find) it might be a possible explanation for some of those apparent inconsistencies.
121. On the re-direction subsequently given, the learned trial judge made quite clear that there was another explanation for the inconsistencies consistent with the defence argument, namely that the complainant was lying. In saying that the jury "may have deduced that I have a view on the subject" he was not acknowledging to the jury that in fact he had a view, nor was he acknowledging that he did in fact give that impression or intended to give that impression, or even that the jury should have gained that impression from what he said. He merely said, in effect, that if you did gain the impression that I have a view you must ignore that view and decide the facts for yourselves. In my opinion the re-direction fell well within the framework of what the majority of the High Court said in Bourke v R (1988) 62 ALJR 425 at 425-426 referred to by Williams J. In my opinion this ground fails.
122. I agree with the other members of the Court that the appeal should be dismissed.
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