R v Abraham No. Sccrm-97-19, Sccrm-97-128 Judgment No. S6654
[1998] SASC 6654
•6 May 1998
R v ABRAHAM
Court of Criminal Appeal
Coram: Matheson, Prior & Debelle JJ
Matheson J
The appellant was tried by a judge without a jury in the District Court on two counts of rape, particulars being that on 18 June 1995 at Northfield she had sexual intercourse with Nula Catherine Hayden, ("the complainant"), without her consent by inserting a finger into her vagina. After a lengthy hearing commencing on 3 December 1996 she was convicted of both counts on 24 December 1996. (It will be apparent later that dates assume some importance). Michelle Lee Charlton and Amy Rebecca Dean-Johns were charged on the same information with being present and aiding and abetting the appellant to commit the said offences. There were problems about the identification of Charlton and the learned trial judge acquitted her. The case had been originally heard by Olsson J for several days during which the complainant was cross-examined at length. For reasons which are now irrelevant, Olsson J granted a mistrial on 6 June 1996, and admitted Dean-Johns to bail. She absconded. She was subsequently arrested on a bench warrant and pleaded guilty to indecent assault. She was given a suspended sentence. The complainant said there was a fourth woman involved, but she was unable to identify her. There is a suggestion that it was a prisoner called Tina Chalker, but she was never charged.
The offences were alleged to have occurred in A Wing of Unit 2 of the Women’s Prison at Northfield. The complainant was transferred there on 12 June 1995. She had earlier been extradited from New South Wales on a charge of assault occasioning actual bodily harm. All three of the women originally charged were inmates of the same unit.
Prior to being transferred to Unit 2, the complainant had been hospitalised for a drug overdose and was restricted to non-contact visits. Following her transfer she alleged that the appellant and others asked her to bring drugs into the prison by involving her boyfriend Robinson or another man. The appellant stated that the complainant had asked her to receive a visit from Robinson for the purpose of collecting drugs. The complainant could not obtain the drugs herself because of the non-contact restriction on her visits. She had a non-contact visit with Robinson on Saturday 17 June. A visit planned for later that day between him and the appellant did not eventuate.
The complainant slept in her own cell that night. She said that she went to the toilet about 3am on Sunday 18 June. She said that she was dragged from the toilet onto the floor. A blanket was put over her head and she was held down while her vagina was twice digitally penetrated by the appellant in the course of a search for drugs. Immediately after the assault she returned to her cell. She did not seek assistance or treatment. Later that day she spent some time with another inmate Joanne Rule. The complainant agreed that she made no complaint to Rule.
Later the appellant received a visit from Robinson, but no drugs were transferred. At or about that time, Robinson returned to the complainant a bundle of declarations that had been tendered on the criminal charges on which she had been extradited. The complainant gave those statements to the appellant to read. The appellant kept one of the pages. That page set out a conversation between the complainant and the arresting officer and described how at the time of her arrest the complainant sought to gain some advantage by telling the arresting police officer that she was an informant of the New South Wales Drug Squad.
The appellant claimed that after seeing the statement she and others harangued the complainant about her admitted involvement as a police informant. The complainant denied any such harassment. She said she slept in Rule’s room until about 5pm. When she awoke she decided to ask for protection. She gave no reason to the officer she first saw and did not make any allegation as to events on the night before. She said that she did not make any immediate complaint because she "did not know what to call what happened to her". She said it did not cross her mind that she was raped. She was placed in an observation cell overnight.
The complainant said that she made a complaint of penetration to officer Ingham who then called the police. Ingham said he was only told of the general assault. He learnt of the allegation of penetration from the police. He explained that a prisoner seeking protection had to state the reason on an application which was then considered by prison managers. The prisoner would be kept in observation whilst the application was considered. The complainant’s formal written application referred only to a fear of being assaulted. Police officer Duance was certainly told of an allegation of penetration on Monday 19 June. He later arranged for a female police officer Graham to take a statement from the complainant on 28 June.
On 14 February 1997, the appellant was given leave to appeal on the following grounds:
The learned trial judge erred in finding that there was a case to answer.
The verdicts in respect of both counts are unsafe and unsatisfactory and cannot be supported having regard to the totality of the evidence:
Particulars
(a) There was no recent complaint.
(b) When the complainant eventually complained, it was in terms of her stating she was ‘scared of being assaulted’ in connection with a request for protective custody by the complainant.
(c) The complaint came only after the complainant had sought protective custody in circumstances where she had been held to ridicule in the gaol for being a police informant.
(d) The complainant gave varying accounts as to whether or not she had suffered injuries. Having at first denied the existence of injuries, the plaintiff subsequently asserted that she suffered from bruises and bleeding from the vagina. The plaintiff had refused a medical examination.
(e) The complainant had given inconsistent accounts as to the duration of the alleged incident (40 mins in evidence) as opposed to a ‘couple of hours’ to her counsel in respect of her sentencing submissions before the Honourable Justice Lander.
(f) The complainant denied having given instructions to the effect that the incident took ‘a couple of hours’.
(g) A motive existed for the plaintiff to make false accusations (namely, to facilitate her remaining in protective custody in the light of the revelation that she was a police informant).
(h) No corroboration.
Oath against oath."
On 21 November 1997, the appellant’s then counsel, being apparently aware that the High Court had reserved its decision on an appeal from the Victorian Court of Appeal in Palmer v The Queen (infra), sought and obtained leave to add the following ground:
That the learned judge erred in his directions as to the burden of proof, in particular in relation to the use he made of the Crown submission that the complainant was not shown to have had a motive to lie or to fabricate the kind of account that she gave."
Her counsel sought to add yet a further ground, namely:
That the appellant be granted leave to adduce fresh evidence from Joanne Elsa Rule"
but that application was referred by a single judge to this court for decision.
In the course of hearing submissions from counsel on the application to add ground (4), the court admitted affidavits from Joanne Elsa Rule, from the appellant’s solicitor, Brett Jonathan Dixon and from the counsel who appeared for her at both trials, William Penn Boucaut. Counsel for the DPP reserved her right to cross examine on the affidavits if the court decided to give the appellant leave to add ground (4). It appears that Ms Rule was not interviewed by a solicitor until 22 August 1997. She was more formally interviewed on tape by an investigator, Mr Russell King, at the Womens’ Prison at Northfield on the same day. Mr Kourakis QC, counsel now appearing for the appellant, summarised the facts in her statement which he said bore critically on the issues in the appeal in the following manner:
"(a) She told [the complainant] at a time close to the time of the alleged rape that she, Rule, was sexually attacked in the course of a search by other prisoners for drugs.
(b) She heard Abraham and others yelling out that [the complainant] was an informer after reading the witness declaration.
(c) The complainant initiated the plan to have drugs passed from her boyfriend to Abraham.
(d) The complainant did not speak to her about the attack after it occurred even though they were friends."
The principles relevant to fresh evidence applications were conveniently summarised by Duggan J in a judgment, with which Legoe and Mohr JJ agreed, in Winslett v The Queen (1992) 60 SASR 1. At pages 3-4 His Honour said:
"The principles relevant to "fresh evidence" applications have been discussed in a number of cases. The considerations relevant to the present case would seem to be these:
The appellate court has a responsibility to examine the probative value of the fresh evidence: Gallagher v The Queen (1986) 160 CLR 392, per Mason and Deane JJ (at 402).
The principal function of the appellate court is to decide whether a miscarriage of justice has taken place because evidence now available was not led at the trial: Re Van Beelen (1974) 9 SASR 163 at 193.
The conviction will not usually be set aside if the evidence relied upon could, with reasonable diligence, have been produced by the appellant at the trial: Gallagher (supra) at 395. However this is not a universal and inflexible requirement: the evidence may be so significant in some cases that interference with the verdict will be appropriate in any event.
The evidence must have cogency and plausibility as well as relevancy: Craig v The King (1933) 49 CLR 429 at 439.
Differing views have been expressed as to the test to be applied in deciding whether to set aside a conviction. In Mickelberg v The Queen (1989) 167 CLR 259, Mason CJ (at 274) said the proper question is "whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial". The learned Chief Justice stated that this was the view of four of the five Justices in Gallagher. In his judgment in Mickelberg (supra) Brennan J said (at 275):
‘The formulation which, in my respectful opinion, was settled by this Court in Ratten v The Queen (1974) 131 CLR 510 at 519, 528, and in Lawless v The Queen (1979) 142 CLR 659 at 666, 670, 677, 686, is whether the jury, if the fresh evidence had been laid before it together with the evidence given at the trial, would have been likely to have entertained a reasonable doubt about the guilt of the accused. That was the formulation to which I adhered in Gallagher at 409-410. The test has sometimes been expressed not in terms of ‘likely’ but in terms of ‘might’ (Stafford v Director of Public Prosecutions [1974] AC 878 at 893, 907, 912; Gallagher at 399, 421) or in terms of ‘significant possibility’ (Gallagher at 402). Although I agree with Toohey and Gaudron JJ that it is not necessary to elaborate in this case upon the differing nuances of these formulae or to decide between them, my preference for the ‘likely’ formula remains.’
Deane J favoured the ‘significant possibility’ test. Toohey and Gaudron JJ did not express a preference for one test over another in their joint judgment.
There is much to be said, with respect, for the view expressed by King CJ in R v McIntee (1985) 38 SASR 432 at 435 that:
‘The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice. I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.’
This statement was adopted by Gibbs CJ in Gallagher at 395 and is in keeping with the view expressed by this Court in Re Van Beelen at 183 that:
‘In answering the question, the Court will be largely guided by working rules developed for use in the ordinary and general run of cases, but will not be deterred, by the apparent limits of those rules, from treating the passage in s353 [Criminal Law Consolidation Act 1935] ‘... or that on any ground there was a miscarriage of justice ...’ as embodying the cardinal principle.’
The relevance of these comments was reinforced by Gibbs CJ in Gallagher at 399:
‘No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial.’"
Having regard to these authorities I do not want to over- emphasise the fact, but I am bound to say that I formed the view that the evidence sought to be led could have been obtained with reasonable diligence at least before the second trial. The court was informed that there would only have been about ten prisoners in the unit at the relevant time, including the complainant, the appellant and Ms Rule. The existence of Ms Rule was known at the first trial, and the complainant there admitted her contact with her during the days leading up to and following the alleged offences, and admitted that Rule had told her that she had been sexually assaulted, albeit it was not actually put to the complainant that the reason for this sexual assault was a search for drugs. In my opinion, she was an obvious person for the defence to interview. She may no longer have been incarcerated, but there is no suggestion she could not have been located. Moreover, many of the topics in Ms Rule’s affidavit were not disputed during the trial, for example, the lack of a complaint by the complainant to Ms Rule about the rapes, the fact that certain prisoners read her statement which said she was an informer, and the arrangement in relation to the appellant collecting drugs from the complainant’s boyfriend. I do not overlook the argument of Mr Kourakis that the complainant’s evidence would not have been "extraordinary" if she had been told previously why Ms Rule was sexually assaulted, and I have carefully considered Ms Rule’s answers during the course of the interrogation on tape. However, I do not agree with Mr Kourakis that her answers indicate that the complainant initiated the plan to have drugs passed from her boyfriend to the appellant. Indeed, Ms Rule indicates that it was the appellant’s idea (see her answer to Q. 83). Next, I do not regard the answers of Ms Rule in regard to the rape on her in the following passage as indicating a potentially reliable witness:
And can you just explain in very simple terms what sort of attack that was and where it took place?
I was in A dorm and it was after the last count and girls ran in, put a pillow over my head, forced my legs open and were, I believe, looking for drugs.
23. And was that some time between when you first came here in December 1994 and June 1995?
Yes it was.
24. As a result of that, did you take some action to be removed from that area?
Yes I did.
25. And were you in fact removed?
Yes I was.
26. And was that an immediate reaction?
I started screaming out and then I went back into my room and pressed the intercom and told an officer that there was a redback in my room and she told me to kill it and I told her, I swore at her and she knows that’s not me so she told me to get to the barrier. So I went to the barrier and I superficially cut myself, so it’s because she seen the blood, that’s how I got removed from ...
27. Did you formally report that attack on you?
Yes I did.
28. Was anyone ever brought to trial over that?
No. I had 18 months to serve and I didn’t wish the management to place me in protection so unknown assailant [sic]"
Next, Ms Rule admitted that she was serving a sentence for larceny, and that she had previously received twelve months for receiving and larceny, and a suspended sentence for armed robbery.
The court was not persuaded that Ms Rule’s evidence would have given rise to a significant possibility of an acquittal or that the failure to allow her to be called has led to a miscarriage of justice. Accordingly, the appellant’s application to add ground (4) was refused.
I turn now to the appellant’s submission made at trial and on appeal that what was alleged by the Crown did not amount to rape, and that accordingly there was no case to answer.
Mr Kourakis, referred to the definition of "sexual intercourse" in s5 of the Criminal Law Consolidation Act, 1935 (SA), ("the Act"), which was inserted in the Act in 1985, and which reads:
"‘sexual intercourse’ includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving -
(a) penetration of the labia majora or anus of a person by any part of the body of another person or by any object;
(b) fellatio; or
(c) cunnilingus".
He also referred the court to the statutory offence of rape in the Act, s48 of which reads:
A person who has sexual intercourse with another person without the consent of that other person -
(a) knowing that that other person does not consent to sexual intercourse with him; or
(b) being recklessly indifferent as to whether that other person consents to sexual intercourse with him;
shall (whether or not physical resistance is offered by that other person) be guilty of rape and liable to be imprisoned for life."
Mr Kourakis then referred to s73 of The Act which reads:
(1) For the purposes of this Act, sexual intercourse is sufficiently provided by proof of penetration.
No person shall, by reason of his age, be presumed incapable of sexual intercourse.
No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to sexual intercourse with that other person.
No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to an indecent assault by that other person.
For the purposes of the provisions of this Act dealing with sexual offences, agreement to an act on the basis that it is necessary for the purpose of medical diagnosis, investigation or treatment, or for the purpose of hygiene, is not consent to that act for another purpose".
The definition in s5 (supra) was considered in The Queen v Remynse (1987)135 LSJS 180. Wells AJ (as he then was) said at 181.
"I return, then, to the definition. This, as I have said, is an inclusive one; it is not exhaustive and exclusive. At the core of the expression ‘sexual intercourse’ there remains, therefore, its natural meaning. According to ordinary usage, and not in the special context of ss. 5 and 48, the expression connotes a willing submission and cooperation by the woman. When, however, the expression is used as part of the definition of rape to denote vaginal penetration by a man’s penis, it almost inevitably excludes mutuality or cooperation (unless the girl makes a show of cooperation out of fear). Indeed, classic forms of rape are when there is penetration while the woman is frozen stiff with fear, or is struggling violently in order to avoid carnal knowledge."
In R v Randall (1991) 55 SASR 447 Cox J said at 450:
"In 1976 a paragraph referring to "sexual intercourse" was inserted in s 5 of the Criminal Law Consolidation Act for the first time. It did not attempt to define the expression but stated that "sexual intercourse" in the Act included the introduction of the penis into the anus or mouth of another person. Then, in 1985, that paragraph was replaced by the definition that I have set out earlier in these reasons. Again, it did not purport to define the expression exhaustively. It simply stated that certain activities were included within the meaning of sexual intercourse.
It is plain that the 1985 amendment to s 5 was intended to expand the notion of sexual intercourse well beyond its ordinary connotation. One of the ways in which this was done was by declaring that any activity consisting of or involving penetration of "the vagina" of a person, by any part of the body of another or by any object, should constitute sexual intercourse for the purpose of rape and other sexual offences under the Act".
Ms Wendy Abraham, counsel for the DPP, referred to R v Mobilio (1991) 1 VR 339. The facts were not comparable, but in the judgment of the Full Court (Crockett, McGarvie and Beach JJ) the following passage appears at p343:
" The common law as to rape is relatively simple and practical. It is designed to deter only one form of conduct. It is designed to deter a man from having any sexual intercourse with a woman - any introduction of his penis into her vagina - without her consent. For this act to amount to rape the man must intend to have intercourse without her consent. He has this intention if he intends to have intercourse and is aware that the woman is not consenting or realises that she might not be. If, with that state of mind, a man has any intercourse with a woman who is not consenting, the crime is committed. It makes no difference whether his ultimate or ulterior purpose, motive or reason for intercourse is his own sexual gratification, his self-aggrandisement, the hurting or humiliation of the woman, her psychological or bodily betterment, or some combination of those."
In R v Dunn, Butterworths Unreported Judgments BC9201937, a judgment of the N.S.W. Court of Criminal Appeal delivered on 15 April 1992, the appellant was convicted on one count of sexual intercourse with a child under ten years of age. The appellant had been bathing the three month old victim when the baby evacuated her bowel, thereby irritating the appellant. She forced one or more fingers into the baby’s anus. At page 9 Carruthers J, with whom Gleeson CJ and Lee AJ agreed, said:
" Shortly stated, Mr Lord’s argument is that although there was, on the evidence, penetration of the anus of the child by the finger of the appellant, that could not be sexual intercourse within the meaning of the statutory definition, because the statutory definition requires some element of sexual gratification.
I would reject this submission. Historically the anus and the vagina have been looked upon as being biologically connected with sexual intercourse. The legislature has, by the statutory definition, acknowledged this concept and made special provision for the violation of these parts of the human body. In the legislature’s opinion they attract, or involve, a greater degree of criminality than would otherwise be the case, and in my view, the element of sexual gratification plays no role in the statutory definition. Thus I would dismiss the appeal against conviction."
I have found all these authorities helpful in reaching my conclusion on this aspect of the case, which is that what the Crown was alleging is caught by the definition, and that there was a case to answer. The answer may have been different if in 1985 Parliament had used the words "any sexual activity" instead of "any activity". I also agree with the learned trial judge that in including the words in parenthesis "whether of a heterosexual or homosexual nature" Parliament merely intended to make clear that the activity may be between persons of a different gender ("heterosexual") or persons of the same gender ("homosexual").
Before I leave this aspect, and for what it is worth, I refer to two comparable cases which reached the Court of Criminal Appeal where no point was taken by counsel for the appellant, or by the court itself, that the relevant "act" did not constitute sexual intercourse. In R v Ball, Bunce and Calliss (1991) 56 SASR 126, a broom handle was inserted in the complainant’s anus. In R v Brusnahan, (Unrep. Judgment No.S4246 SA Full Court delivered on 24 September 1993), a cigarette lighter was inserted in the complainant’s vagina.
It is convenient now to consider ground 3 (supra) which was clearly prompted by the decision of the High Court in Palmer v The Queen, (1998) 151 ALR 16. In that case the High Court was asked to rule on the propriety of a line of questioning whereby the accused, during cross examination, was asked to give an explanation of the motive or reason as to why the complainant would lie or fabricate the charges against the accused. He was charged with indecently assaulting a girl of fourteen years, the daughter of a woman that he had been on friendly terms with for two years. The accused answered by stating that he was not aware of any motive or reason that would explain why the accused had fabricated the charges against him. No objection was taken to this line of questioning at the trial. By a majority of four to one (McHugh J dissenting), the court held that the cross-examination was not proper. In their joint reasons Brennan CJ, Gaudron and Gummow JJ said at 20:
" It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant’s credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. (R v Yewin, noted in Harris v Tippett (1811) 2 Camp 637 at 638-639 [170 ER 1277 at 1278]; Thomas v David (1836) 7 CAR & P 350 [173 ER 156] considered in R v Cargill [1913] 2 KB 271 at 275; Attorney-General v Hitchcock (1847) 1 Ex 91 [154 ER 38]; Hall v Marchant [1914] St R Qd 174 at 179; R v Shaw (1888) 16 Cox CC 503. This is an exception to the general rule that a witness’ evidence on a question going only to credit cannot be contradicted by other evidence: Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533 at 545; R v Livingstone [1987] 1 Qd R 38 at 41; Smith v The Queen (1993) 9 WAR 99 at 103-105). But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused’s lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.
It if were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury’s attention on irrelevancies, especially when the case is ‘oath against oath’. In such a case, to ask an accused the question: ‘Why would the complainant lie?’ is to invite the jury to accept the complainant’s evidence unless some positive answer to that question is given by the accused. As Gleeson CJ, speaking for the Court of Criminal Appeal of New South Wales, said in F (1995) 83 A Crim R 502 at 511-512:
‘the "central theme" of the case, according to the trial judge, could be found in the question, ‘Why would the complainant lie?’ That is a question, often left unspoken, which usually hovers over cases of this nature. ... Whilst that question, sometimes spoken, sometimes unspoken, is often of great practical importance, it is never ‘the central theme’ of a criminal trial. At a criminal trial the critical question is whether the Crown has proved the guilt of the accused person beyond reasonable doubt. Just as the law does not require the Crown to prove a motive for the criminal conduct of the accused, the law does not require the accused to prove a motive for the making of false accusations by a complainant.’ "
In separate passages, first at 19 and second at 22, their Honours quoted, with apparent approval, the following words from the judgment of Hunt CJ at CL in R v Uhrig, unreported, CCA (NSW), 24 October 1996:
"A motive to lie where it does exist is a very relevant factor in judging a witness’s credit. It will almost inevitably have substantial probative value in relation to the issue of credit ...
What this Court said in Regina v F [ [1995] 83 A Crim R 502], and in Regina v E [ (1996) 39 NSWLR 450] should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasize that the Crown must still satisfy them that the witness is telling the truth. I believe that it is necessary for such a distinction to be stated expressly, in order to avoid skilful advocates attempting to persuade trial judges that a necessary consequence of this Court’s decision in those two cases is that arguments relating to a motive to lie are excluded in every case. That is not a necessary consequence at all."
It is convenient to add a reference here to R v Ah (1997) 42 NSWLR 702, especially at 707E, also decided just before the decision in Palmer’s case.
The majority judgment in Palmer’s case then continued at p8, and it is this passage upon which Mr Kourakis particularly sought to rely:
" A complainant’s account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant’s account is strengthened by an accused’s inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished. That is the converse of the proposition stated by Cresswell J in the case cited by Wills [in Circumstantial Evidence 6th Edn (1912) at 256-257] where his Lordship acknowledged that proof of a motive to lie weakened a complainant’s credibility. The correct view is that absence of proof of motive is entirely neutral."
In his judgment Kirby J decided that in the light of the rule in Robinson v The Queen (No.2) (1991) 180 CLR 531, it would be incongruous to allow a line of questioning which sought to undermine an accused’s denial and strengthen the complainant’s case by establishing that the complainant had no motive to lie.
In support of his argument on this ground, the appellant in the case at bar referred to the following three passages in the judgment of the learned trial judge:
"It has also been important that I consider whether there is a possibility that Nula Hayden told deliberate lies. In that context, it has been appropriate for me to consider whether it has been suggested (and, if so, how convincing that suggestion was) that Nula Hayden was telling lies and whether any reason exists for her having told lies. (T. p42)
...
On any view of the story she told, this was a very difficult and complex story, and, in some ways, too bizarre a story to tell, if it was not true. I accept that for Nula Hayden to come forward, albeit a little late in the piece, with serious allegations like this, is, to use Ms McDonald’s words, ‘extraordinary unless it really happened’. She had a lot to lose and little to gain from coming forward. That is a pointer to the truthfulness of her evidence. This was not an unlikely story to tell, as Mr Boucaut urged upon me. (T. p50)
...
In arriving at what I hold to be the truth as it related to Susan Abraham, I have considered, inter alia, the question of motive or reason as it applies in particular to the alleged victim. I have asked myself, on the evidence before me: Did the accused, Susan Abraham, have a motive or reason for doing what was alleged against her; did a desire for drugs and ability to carry out standover tactics against a fellow prisoner lead the accused, Susan Abraham, to assault and penetrate the alleged victim in the manner alleged; did Nula Hayden have a motive or reason for telling lies; do reasons exist, and, if so, how convincing are they, to explain why Nula would have made up a false series of allegations and seek to implicate falsely, amongst others, the two accused?" (T.p52)
I have given this submission anxious consideration, but I am not persuaded in all the circumstances that his Honour used the complainant’s absence of a motive to lie to bolster her credibility, or that his Honour has in some way watered down the onus that lies on the prosecution to prove its case beyond reasonable doubt. It is a fact that again and again in his reasons, his Honour correctly directed himself as to the onus and burden of proof.
As Ms Abraham pointed out, in this trial a motive to lie was specifically put to the complainant. She had given evidence that some hours after the attack upon her, and because of the attack upon her by the appellant and others, she had asked to go into protection. It was put to her that she had made up the allegation of rape to enable her to go into protection because she had become aware that other prisoners had thought she was a police informer. She denied that allegation.
Counsel were entitled to and did address on the issue of motive that was put to the complainant. The prosecutor submitted that the motive suggested to the complainant was false and ought to be rejected. The prosecutor submitted that given the nature of the complainant’s account of events, the consequences of her making the complaint (including being given protection and being labelled as an informer), and the fact that she gave evidence twice after she had been released from prison, there was no reason to tell the story other than that it was true. The trial judge was entitled to consider those factors, together with others, when assessing the evidence of the complainant. Though accepting that the complainant had no motive to lie, he emphasised that the Crown had to satisfy him beyond reasonable doubt that she was telling the truth. I am not persuaded that the trial judge inferred from the finding that the complainant had no motive to lie, that she was telling the truth. Rather, he found that there was no evidence on which he could find that the complainant was untruthful, and that her credibility remained intact after cross-examination. He was impressed by her demeanour.
I propose now to quote extensively from his Honour’s reasons, much of it being relevant not only to the ground based on Palmer’s case, but also to the ground that the verdicts were unsafe and unsatisfactory. The passages quoted record the great care that this very experienced judge took. He said:
" I assess Nula Hayden to be a careful, frank and generally impressive witness. There were no adverse aspects to her demeanour. Regarding her demeanour, she exhibited to me none of the signs of a witness who was concocting her testimony, or indulging in the process described in the law as recent invention.
...
Nula Hayden was subjected to detailed and persistent cross-examination which required consideration of events moment by moment as they occurred. Though thoroughly tested by two cross-examiners, she was not, in my view, shaken. It was suggested (and correctly so) that Nula Hayden was inconsistent in her testimony about time, and, in particular, about how long the events in the bathroom occurred. That inconsistency was not, in my judgment, very significant in the scope of things. Time is universally hard to assess accurately in an emotion-charged and frightening situation, as must have occurred. Furthermore, it is a non sequitur to suggest that, because inconsistency or mistakes occurred regarding time, therefore other testimony was necessarily unreliable.
The failure on the part of Nula Hayden to go for a medical examination, or to tell anyone about her injuries until it was obviously too late for evidence thereof to be present or useful, is consistent with an understandable reaction on the part of a woman who was frightened, who was not thinking of the significance of injuries as evidence, and who was not wanting anyone to invade her privacy.
The dynamics of a prison (and this prison, in particular) are such as to explain Nula Hayden's reluctance to complain and come forward to disclose all the details. Her demeanour in the witness box was consistent with such understandable reluctance.
Much was made of Nula Hayden's failure to come out promptly and say that it was rape. However, it must be remembered that Nula Hayden did not see it as rape, and it was not rape (with sexual gratification driving it) as is widely understood in the community as being essential to a charge of rape.
If Nula Hayden's story was a frame-up and a pack of lies to implicate all four women about whom some evidence exists, one would have expected her to have claimed to have seen or seen and heard each of them clearly. Her stated inability to recognise Tina Chalker, and her difficulties (expressed and implied) in purporting to recognise Michelle Charlton, have the ring of truth about them, and have led me to believe and accept her as a generally credible and reliable witness.
In contrast to Nula Hayden, I thought the accused Susan Abraham, was very defensive in giving her evidence, and not at all forthright. She led me to see her as one who was thinking through the questions asked of her with a view to avoiding, in the end, answers which might do her case some harm. She was frequently evasive, and seemed to shelter often under the guise of saying she was unable to remember.
I have assessed the complainant, Nula Hayden, as a generally honest and reliable witness. Her credibility remains intact. I will say something further about her testimony in some supplementary reasons which I will provide later.
I am satisfied beyond reasonable doubt about each of the elements of the charges which the accused Susan Abraham faces. Whilst no onus rests on the defence, it is, realistically, difficult to contemplate what motive Nula Hayden might have had for making allegations such as these against the accused Susan Abraham, in particular, if they were not true.
It is a matter for me, as judge of the facts, as to whether I believe it to be true, or consider it to be a reasonable possibility, that Nula Hayden fabricated this case against the accused, Susan Abraham, and, to that end, had the presence of mind and the capacity and the determination to make up a story about this incident in the bathroom, and to not only tell a false story, but also to embellish it by involving not one, not two, but three others.
I neither believe it to be true, nor consider it to be a reasonable possibility, that Nula Hayden attempted to frame Susan Abraham and others in this way. I have indicated that I found Susan Abraham to be an unsatisfactory and unimpressive witness.
For reasons to be provided later, I found the two witnesses called on behalf of the accused, Susan Abraham, to be lacking in credibility.
The absence of any corroboration of Nula Hayden's evidence does not lead me to doubt her testimony. Notwithstanding the fact that there is no rule of law or practice requiring corroboration, or a warning of the dangers of acting on uncorroborated testimony at this time, I, nonetheless, assessed her testimony with great care.
...
At the end of my responsibility in this trial, I turn my mind to each of the following questions which were questions for me, as trier of the facts, to answer: If I had believed and accepted the evidence of the accused, Susan Abraham, then I would have had little difficulty in arriving at a verdict of not guilty on each count considered separately; if I had concluded that it was reasonably possible that her account represented the truth, then, again, I would have had little difficulty in arriving at a verdict of not guilty on each count considered separately as against the accused Susan Abraham; if I had been unable to decide where the truth lies in relation to a particular charge against Susan Abraham, and if I had found myself in an impasse, so to speak, then I would have given the benefit of the doubt to the accused, Susan Abraham, and found her not guilty of that charge; if I had had a reasonable doubt about any of the ingredients of any charge against her under consideration, then, of course, I would have decided to bring in a verdict of not guilty. But as I believed and accepted the evidence of Nula Hayden as against Susan Abraham, and as I disbelieve that given by Susan Abraham, I, therefore, have arrived at verdicts of guilty in relation to each count considered separately. I am so satisfied beyond reasonable doubt in each instance.
...
The fact that this alleged victim, Nula Hayden, did not make an early complaint (a prompt and fresh statement) - and I find that that was so - does not necessarily reflect upon her credibility and reliability. It may do so, but it need not necessarily do so. It is a matter for me as to whether I consider that the delay, on Nula Hayden's part, in making a complaint and giving a statement to the authorities, reflects at all, and, if so, whether it reflects adversely, upon her credibility and reliability as a witness.
I conclude that the delay here does not, in the circumstances, reflect adversely upon Nula Hayden's credibility and reliability as a witness.
A failure to complain or a delay in making a statement, regarding the fact of an alleged crime or the circumstances of it, does not necessarily indicate (and it does not here indicate) that the allegation that the crime was committed is false.
There may be good reasons (and there are here) why the victim of crimes (perhaps especially the victim of crimes of violence committed within the confines of a prison) might be reluctant to speak about the crimes.
The evidence, partly that given by some of the witnesses and partly adduced by the defence by cross-examining prosecution witnesses, revealed that there was a failure on the part of the alleged victim, Nula Hayden, to complain or at least to assert that the events constituting the offences had occurred and to do so at some early reasonable opportunity after the commission of the alleged offences.
Such evidence of failure, or rather delay, may not be used (and has not been used by me) as direct evidence negating guilt, as such evidence is admissible, and has been used by me in relation to the assessment of the credibility of the alleged victim Nula Hayden.
More precisely, it may be used in some cases (but this is not one, in my view) to show inconsistency between the actions of the alleged victim after the alleged offences, and her testimony in the trial (see Kilby v R (1973) 129 CLR 460 per Barwick CJ at p.472). The absence of a proximate complaint "may be a considerable factor where a tribunal of fact is deciding as to the credibility of the complainant" (see Barwick CJ at p.469).
An important question for me, as the trier of fact, is whether, in the circumstances of this case, an early complaint would have been expected. I think not. The possible reasons for the delay have been canvassed at length in this trial. In my judgment, a number of good reasons exist why the alleged victim here hesitated long before making a complaint and giving a statement.
I bear in mind that delay in making a complaint or in giving a statement does not necessarily indicate that the allegation that the offence was committed is false...
I have heard the complainant herself. It is a fact that she did not call out or press an intercom button. She did not speak to any other prisoner and make any allegations of misconduct, assault, rape or otherwise. She did not speak to anyone until she spoke to Prison Officer McRae and to Mr Ingham on 19 January, and thereafter to the police. But, on the other hand, I have considered her explanations and, in particular, the matter of her reluctance and fear. These are all matters which I have considered, but the making of the complaint itself could only be looked to for the purpose of testing her credibility. The absence of any evidence before me of an early complaint equally only entitles me to consider that as going to her credibility.
The mere fact that there is no evidence of her having made an early complaint does not mean that I must reject her evidence completely. I have to weigh it all up and see how it affects her overall testimony. It may be of importance; it may not. It may be of slight importance. I conclude that it is not of importance in the end. It is a matter for me as to the weight I give it, and it can only be used to test her credibility, and I had the opportunity of seeing her in the witness box.
There was no corroborative evidence in the form of medical or other evidence to describe injuries said (by Nula Hayden) to have been present on her body shortly after the alleged offences were committed. There was no evidence at all which would amount to corroboration, even though there is no rule of law or practice which requires me to warn myself notionally that it is unsafe to convict on the uncorroborated evidence - and it is, as I have just indicated, uncorroborated - of Nula Hayden, the alleged victim of these offences [see s.34i(5) of the Evidence Act 1929].
I have assessed the evidence of Nula Hayden with great care and I have been mindful of the dangers involved in acting on the uncorroborated testimony of an alleged victim in an unusual case such as this. The need for care is great not so much because this is a case correctly to be characterised as a sexual case (because sexual intercourse, as widely defined, was involved), but, rather, because of the unusual social dynamics that clearly existed in this prison at about the time of these alleged offences.
Accepting, as I do, that there was a need for a notional warning, I bear in mind that such a warning need not go as far as to indicate that the accused cannot be convicted of the offences charged on the basis of the alleged victim's uncorroborated evidence as in the case of the unsworn and unassimilated evidence of a young child given against an accused who has denied the offence on oath (see s.12(3) of the Evidence Act). The notional warning to be given and taken heed of here is to recognise that it is open to me, as trier of the facts, to convict on the uncorroborated evidence of the alleged victim, but only if paying heed to the warning I am satisfied that the allegations of the alleged victim are clearly proven. That is my position here.
Whilst there was no evidence that could amount to corroboration here, there was some evidence, as given by Jacqui Ellis, which provided the alleged victim and the prosecution case as a whole with some support. I am referring to the evidence of Jacqui Ellis regarding the statement made to her by the accused Susan Abraham which I have assessed (and been satisfied about beyond reasonable doubt) arose from a consciousness of guilt of the offences charged. It was circumstantial evidence of an attempt by the accused to interfere with a witness which led to the drawing of an inference of guilt."
I also draw attention to what his Honour said about the prosecution witness Jacqui Ellis, and the two witnesses called as part of the defence case, namely Michelle Wood and Colleen Brown. His Honour said:
"All are or have been prisoners. Whilst all have, undoubtedly, been convicted of one or more offences I note that the evidence points to the conclusion (and I find):
that Michelle Wood has convictions for attempted armed robbery, for numerous offences of dishonesty including offences of false pretences, and for more than one offence of breaking and entering;
that Colleen Brown has numerous convictions for dishonesty and offences involving the giving of a false name and address.
I bear in mind that persons who have been in trouble with the law, even persons with long criminal records, may (and often do) speak the truth and give reliable evidence. Whilst the fact that a witness has previous convictions does not necessarily lead to a finding that that witness is discredited, it may do so. In this instance the past history of dishonesty of each of these witnesses, that is to say Michelle Wood and Colleen Brown, did nothing to lead to assess them as witnesses of truth and reliability, and I found myself, in the end, placing very little reliance upon their word.
Michelle Wood’s demeanour did not impress me and I was left with the distinct impression that she was simply trying to assist her friends, the accused Susan Abraham, by telling a story regardless of its truthfulness in an attempt to discredit the Crown witness, Jacqui Ellis. It was a curious coincidence (and not at all convincing in the telling) that her story (her examination-in-chief) was to the effect that Jacqui Ellis had said to her that Nula Hayden was paying her (Jacqui Ellis) $2,000 for her statement, the very same sum of money that Jacqui Ellis had testified was the sum the accused Susan Abraham had suggested was the amount of the "silence" money which was to be mentioned in justification of her decision, to be conveyed to the defence lawyers, for withdrawing from the team of prosecution witnesses.
Colleen Brown seemed to me to be testifying as if telling a staged story from a script. She was also somewhat evasive when under cross-examination. She manifested a tendency to deny the direct suggestions of the cross-examiner, then to delay being in agreement, then to avoid, and finally to indicate a reluctant agreement. The cross-examination as to the matters of Colleen Brown’s ‘major problems while in custody’ and her ‘current enemies in prison’ (see Exhibit P18) was revealing. The inconsistency between Colleen Brown’s and Michelle Wood’s evidence as to the sum of money Jacqui Ellis was allegedly going to be paid by Nula Hayden for her (Jacqui Allis’s) help in ‘making’ or ‘making up’ (there was a lack of consistency about that as well) did little to enhance Colleen Brown’s credit in circumstances in which it is highly unlikely that Jacqui Ellis would have mentioned two different sums ($2,500 and $2,000) if it was true that Nula Hayden had offered or promised to pay Jacqui Ellis some money for help given.
I formed the impression that both Colleen Brown and Michelle Wood were acting as a team to help the accused Susan Abraham at any cost and regardless of the truth of their testimony.
Jacqui Ellis was, on the other hand, a more impressive witness and I found that her evidence had the ring of truth about it. Her evidence, both in examination-in-chief and in cross-examination, as to the phone call from the accused Susan Abraham after her (Jacqui Ellis's) release from prison on 8 March 1996 could be construed as an attempt to interfere with or to wrongly influence or to intimidate a witness or to pervert the course of justice.
Acutely aware, as I am, that conduct like this, which is similar to and has the hallmarks of an attempt to suborn a witness, may not necessarily arise from a consciousness of guilt and therefore be evidence going to the ultimate question of guilt, I am satisfied that, in this instance, this evidence is evidence to show a consciousness of guilt on the accused's (Susan Abraham's) part.
The evidence which was given by Jacqui Ellis and which I accept was to the effect that the accused Susan Abraham asked her to ring up the solicitor for the accused and tell him that she did not ‘want to go through with (it)’ and that she was ‘being paid ($2,000) to give a statement and that it wouldn’t be worth it in the end’.
I am satisfied that that statement (which I am satisfied about beyond reasonable doubt) made by the accused Susan Abraham sprang from and reflects a realisation or consciousness of guilt of the offence charged and for no other reason. The statement made was not, in my judgment, ambiguous or equivocal or capable of innocent or alternative explanation.’ ... [His Honour then cited some authorities and continued] ‘I remind myself that I am not to assume that a statement like this or in these precise terms is conclusive of guilt. Having taken care with this evidence, I am satisfied to draw the inference that the statement arose from a consciousness of guilt of the offences charged in the same manner as such inferences may be drawn from evidence of flight to avoid prosecution or from evidence of the fabrication of lies relating to the offences in question or from evidence of efforts made to cover up a crime or to intimidate witnesses. In this instance I do so beyond reasonable doubt.
Whilst some evidence given by Jacqui Ellis was consistent with the accused Susan Abraham having made something in the nature of an admission, I refrain from drawing any inference of guilt therefrom. The ‘confessional’ evidence was equivocal. I am referring to the evidence to the effect that Jacqui Ellis was told by the accused Susan Abraham that Nula Hayden ‘was put on a promise and she deserved more than she got’ and that she (Jacqui Ellis) should ‘keep her mouth shut and keep quiet about what (she) knew’.
There was some evidence given by Nula Hayden that was consistent with the conclusion that the accused Susan Abraham made a series of threats to her. This evidence included statements attributed to the accused Susan Abraham to the effect: ‘You’re fucking dead. You’ve had it, cunt’ in response to an indication that she was going ahead with the charges; and to the effect: ‘If you go ahead with the charges, you will be asking for trouble (or will be getting into trouble).’
I am not satisfied beyond reasonable doubt that these statements, which I find were made by the accused Susan Abraham, sprang from and reflect a consciousness of guilt of the offences charged and from nothing else. These statements are equivocal and are capable of alternative explanation. In my judgment, it would be wrong to assess these statements as evidence of guilt and to draw an inference of guilt therefrom.
But the Crown says that the inference that the accused Susan Abraham committed the crimes in the manner alleged is more readily drawn because of the accused's conduct in asking Jacqui Ellis to ring up the solicitor for the accused and tell him that she ‘didn’t want to go through with it’ and that she was ‘being paid ($2,000) to give a statement and it wouldn’t be worth it in the end’, which conduct the Crown suggests reflects a consciousness of guilt on the accused's part, that is to say a consciousness of the serious culpability alleged against her.
The Crown says, in effect (and I agree), that the only reasonable inference to be drawn from all of the evidence (and on any reasonable view of it) is that the accused had a guilty conscience that she had raped Nula Hayden in the manner alleged."
On the question whether the convictions were unsafe or unsatisfactory, the court was referred to M v The Queen (1994) 181 CLR 487. In a joint judgment at 493, Mason CJ, Deane, Dawson and Toohey JJ said:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations ...". (see also Jones v The Queen (1997) 72 ALJR 78).
I have considered all the particular arguments of the appellant in support of this ground, supra, but I consider the trial judge’s reasoning disposes of all of them. I have reached the conclusion that it was open to the learned trial judge to be satisfied beyond reasonable doubt that the appellant was guilty of both counts.
The appellant also appeals against penalty. She was sentenced on 9 April 1997. Her current non-parole period had approximately eight months still to run from that date. His Honour sentenced her to imprisonment for four years to commence at the expiration of the sentence she was currently serving. He fixed a new non-parole period of three years and eight months to run from 1 April 1997.
At the time of sentence the appellant was 31 years of age. The learned sentencing judge described the crime - correctly in my opinion - as "a violent and high handed show of force and power exhibited against an unwilling and non-consenting and submissive victim".
His Honour referred to the appellant’s antecedent report that had been tendered and said "you have shown, by your conduct since you were aged sixteen (and especially over the past five years) that you are a persistent offender. The previous crimes you have committed have included crimes of violence, including eight counts of common assault and three counts of resist arrest or resist police, other street offences, drug offences, break and entering and stealing offences, fraud offences and miscellaneous dishonesty offences". I agree with the learned sentencing judge who said in relation to the appellant’s background "there is little that can be pointed to explain, let alone excuse, the criminal conduct" for which he had to sentence her.
His Honour referred to the case of R v Fern(1989) 51 SASR 273, which involved an appeal against the sentence for a homosexual rape on a fellow prisoner. At p274 in a judgment with which White and Prior JJ agreed, King CJ said:
"This Court, whatever sympathy it may feel for the appellant, has a very serious responsibility to extend what protection it can to persons who are incarcerated by force of law in penal institutions. Those people have no choice about being there; they are sent there by the courts as punishment for their crimes. They are entitled to serve their punishment free of abuse and indignity and interference with their basic rights as human beings. Mrs Shaw has contended that severe punishment will not operate as a deterrent in such circumstances. It is not really practical for this Court to pass a judgment upon a submission of that kind. Courts are obliged to assume that the punishments which Parliament authorises will have a tendency to deter people from committing crimes. The administration of criminal justice is based upon that assumption. If prisoners can abuse fellow prisoners in the way in which this appellant abused the victim and escape severe punishment, it must expose other prisoners in the system to the risk of being similarly abused and increase their vulnerability to violence and particularly sexual violence at the hands of fellow prisoners. It seems to me in those circumstances that the Court has no alternative but to impose a severe sentence which will operate not only as a warning to this appellant but as a warning to other prisoners in the system as to the consequences of imposing their will upon their fellow prisoners."
I would dismiss the appeal against the convictions and the appeal against sentence.
Prior J
I agree with the reasons published by Matheson J and with the orders he proposes.
With respect to the application to call fresh evidence, I also agree with Debelle J that the evidence sought to be led could have been obtained with reasonable diligence at least before the second trial. The evidence in the two trials indicates that the issue was known to the defence even if the precise details were not put to the complainant at either trial.
With respect to the complaint that the trial judge made improper use of a submission by the prosecution that the complainant was not shown to have had a motive to lie, the recent observation of Doyle CJ should not be overlooked:
"…. one must be cautious about taking a general statement from a High Court judgment in isolation, that is, divorced from its factual context, and treating that statement as constituting an exhaustive description of the scope of a particular principle."
In this trial the accused was not cross-examined as the accused was in Palmer. The trial judge did not say, nor in my view imply in what he did say in the passages complained of that he was using the possibility of a motive to lie in any way inconsistent with the principle for which Palmer now stands. That principle is that the absence of a motive to lie cannot be used to buttress the credibility of a complainant. The trial judge did not have to consider the accused’s lack of knowledge at all, nor did he do so. He did not use the evidence of absence of motive, coming from any source, to bolster the complainant’s credibility as much as he asked himself the question whether or not there was some evidence of a motive or reason for telling lies in the complainant. He simply asked himself whether reasons exist for lying and if they did, were they convincing to explain why a false series of allegations were made up to wrongly implicate others. It seems to me that the trial judge was properly acknowledging that proof of a motive to lie weakens a complainant’s credibility. The absence of a motive was not invoked to bolster credibility.
Debelle J
I agree with Matheson J that both the appeal against conviction and the appeal against sentence should be dismissed. I agree with the substance of his reasons. There are three matters with which I wish to deal.
The first concerns the application to call fresh evidence. It is quite apparent that the evidence sought to be led could have been obtained with reasonable diligence before the second trial. The affidavit evidence in support of the application shows that both the solicitor and counsel for the appellant knew at the first trial of the existence of Ms Rule, whom they now seek to call. They knew that the complainant had admitted speaking with her before and after the alleged offence and that Ms Rule had told her that she had been sexually assaulted in gaol. Given that information, it was quite obvious that it would be at least prudent to interview her. The coincidence of her experience with the allegations made by the complainant required investigation. While there might be a number of reasons why a woman is sexually assaulted in a women’s prison, that does not excuse or explain the failure to interview Ms Rule before the second trial.
The second matter concerns the submission that the trial judge gave improper weight to the prosecution’s submission that the complainant was not shown to have had a motive to lie or to fabricate the account she gave. The submission was founded upon the recent decision of the High Court in Palmer v The Queen [1998] HCA 003. But that decision does not assist the appellant.
In Palmer, the accused had been charged with a series of sexual offences. He had been asked in cross-examination by counsel for the prosecution whether he could think of any reason why the complainant would have made up the allegation. The High Court by a majority (Brennan CJ, Gaudron, Gummow and Kirby JJ, McHugh J dissenting) held that there was no onus on the accused to prove a motive for the complainant’s allegation. Thus, the cross-examination had a prejudicial effect which had not been neutralised by the trial judge’s direction. The appeal against conviction was allowed on this and another ground.
It is, however, quite apparent from the joint judgment of Brennan CJ, Gaudron and Gummow JJ that, within proper limits, there can be an enquiry where the complainant has a motive to lie or fabricate the allegation. First, it is permissible for counsel for the accused to cross-examine the complainant to that effect. Secondly, it is permissible for counsel for both the prosecution and the accused as well as for the trial judge to put arguments to the jury as to the validity of the motive to lie.
As to the first of those propositions, their Honours distinguish between cross-examination of the complainant and cross-examination of the accused (at para 20).
"It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant’s credit, the complainant may be asked about it. And evidence many be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused’s lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.
If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury’s attention on irrelevancies, especially when the case is "oath against oath". In such a case, to ask an accused the question: "Why would the complainant lie?" is to invite the jury to accept the complainant’s evidence unless some positive answer to that question is given by the accused. As Gleeson CJ, speaking for the Court of Criminal Appeal of New South Wales, said in F:
"the ‘central theme’ of the case, according to the trial judge, could be found in the question, ‘Why would the complainant lie’? That is a question, often left unspoken, which usually hovers over cases of this nature. ... Whilst that question, sometimes spoken, sometimes unspoken, is often of great practical importance, it is never ‘the central theme’ of a criminal trial. At a criminal trial the critical question is whether the Crown has proved the guilt of the accused person beyond reasonable doubt. Just as the law does not require the Crown to prove a motive for the criminal conduct of the accused, the law does not require the accused to prove a motive for the making of false accusations by a complainant.""
Counsel for the appellant gave a special emphasis to the following passage (at para 25):
"With respect, a complainant’s account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant’s account is strengthened by an accused’s inability to furnish evidence of a motive for the complainant to lie, the standard of proof is to that extent diminished. That is the converse of the proposition stated by Cresswell J in the case cited by Wills where his Lordship acknowledged that proof of a motive to lie weakened a complainant’s credibility. The correct view is that absence of proof of motive is entirely neutral."
But that passage must be read in its context. Their Honours are still discussing the distinction between cross-examination of the complainant and cross-examination of the accused and the prejudice caused if the accused, in cross-examination, is unable to furnish evidence of a motive for the complainant to lie.
As their Honours indicate later in their reasons, the passage is not intended to prohibit an examination by the trial judge of the question whether the accused had a motive to lie. That is clear from the following passage, which occurs in the very next paragraph after the passage just cited, where reasons of Hunt CJ in Uhrig (unreported, Court of Criminal Appeal (NSW), 24 October 1996 at 16 to 17) are quoted with approval (at para 26).
"What this Court said in Regina v F and in Regina v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasize that the Crown must still satisfy them that the witness is telling the truth. I believe that it is necessary for such a distinction to be stated expressly, in order to avoid skilful advocates attempting to persuade trial judges that a necessary consequence of this Court’s decisions in those two cases is that arguments relating to a motive to lie are excluded in every case. That is not a necessary consequence at all."
That passage also indicates the care to be taken by the trial judge when directing the jury on this issue.
It is apparent that, in the careful direction in this case, the trial judge was doing no more than addressing what is often a question of great practical importance but can never be the central theme of a criminal trial, to use the words of Gleeson CJ in The Queen v F (1995) 83 A.Crim.R. 502 at 512.
It was proper for the trial judge to examine the issue in this trial. In the course of cross-examination of the complainant, counsel for the appellant had put to her that she had made up her allegations in order to be placed in protective custody. But there had not been any cross-examination of the appellant by counsel for the prosecution as to whether she thought the complainant might have had a motive to lie. Counsel for the prosecution and counsel for the appellant both addressed the trial judge on the issue of motive.
So long as the trial judge recognised that the complainant’s account gained no credibility from the absence of evidence on motive, that is to say, that absence of proof on this issue is entirely neutral, the enquiry is legitimate. In my view, the trial judge has been at pains to stay within proper bounds. An examination of his careful direction shows that the trial judge was conscious of the limits of an enquiry on the issue of a motive to lie. It is apparent that this issue was not at the forefront of his direction. It is certainly not the central theme of his reasoning. Instead, it is but one of a number of questions he examines in the course of his direction.
The remaining matter concerns the submissions that this sexual assault did not constitute sexual intercourse. The definition of "sexual intercourse" in s5 of the Criminal Law Consolidation Act provides:
"‘sexual intercourse’ includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving -
(a) penetration of the labia majora or anus of a person by any part of the body of another person or by any object; or
(b) fellatio; or
(c) cunnilungus."
Sexual intercourse, therefore, includes any activity which involves any of the three acts identified in paragraphs (a), (b) and (c). For present purposes it is sufficient to consider only paragraph (a). Thus, if attention is directed to the essential words, sexual intercourse includes "any activity ... consisting of or involving penetration of the labia majora or anus of a person by any part of the body of another or by any object". The definition is very widely expressed. The use of the word "includes" indicates that it is not an exclusive definition. The definition refers to "any activity" which involves penetration of one person by any part of another or by any object. So expressed, it is wide enough to include penetration for a non-sexual as well as for a sexual purpose. The Act is concerned to define sexual intercourse so that it includes activities which go beyond the ordinary understanding of sexual intercourse, namely, sexual intercourse between a male and a female, the intercourse consisting of the introduction of the penis into the vagina: see R v Mobilo (1991) 1 VR 339 at 343. It is intended to catch a wide variety of conduct involving violation of one person by another, conduct which may or may not be engaged in for sexual gratification: cf R v Dunn (unreported, Court of Criminal Appeal of NSW, 15 April 1992).
CITATION
Police v Jervis; Police v Holland (FC, 20 March 1998, S6596, unreported)
0
4
0