R v Bond

[1995] QCA 311

IN THE COURT OF APPEAL	[1995] QCA 311
SUPREME COURT OF QUEENSLAND

C.A. No. 517 of 1994.

Brisbane

[R v. Bond]

T H E Q U E E N

v.

ROGER CHRISTOPHER BOND

(Applicant) Appellant

___________________________________________________________________

Fitzgerald P.
Pincus J.A.

Demack J.

___________________________________________________________________

Judgment delivered 21/07/1995

Separate concurring reasons of each member of the Court

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APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED.

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CATCHWORDS:	CRIMINAL LAW - conviction - false statements made by accused out of court - whether trial judge erred in failing to direct jury on treatment of statements - use of lie to destroy accused’s credibility distinct from use as corroboration of complainant’s evidence - onus of proof.
Edwards (1993) 178 C.L.R. 193 Broadhurst (1964) A.C. 441
CRIMINAL LAW - sentence - whether manifestly excessive - admissibility of economic hardship on family as mitigating factor in view of nature of offence.
Counsel:	Mr A Glynn for the applicant/appellant. Mr D Bullock for the respondent.
Solicitors:	Thynne and Macartney for the applicant/appellant. Director of Prosecutions for the respondent.
Hearing date:	21 June 1995.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 21/07/1995

The circumstances giving rise to this appeal against conviction and application for leave to appeal against sentence are set out in the judgment of Demack J.

The appeal is totally without substance. It is quite obvious why there was no application for redirections at the trial; any further reference to the appellant’s absurd lies to the police in a context which indicated that, subject to conditions which were plainly satisfied, the lies might evidence an admission of guilt would have rendered the appellant’s conviction even more certain. Any technical defect in the summing-up - if there was one - favoured the appellant and led to what should be regarded as a deliberate tactical decision to leave well alone.

Further, a trial judge is entitled in applying and explaining the law to temper rules by reason and common sense to the circumstances of the particular case: cf. Dietrich v. R. (1992) 137 C.L.R. 292, 363 per Gaudron J. Justice and fairness are concerned with substance, not technicality.

In the present case, there was no miscarriage of justice.

I agree with Demack J.’s observations with respect to sentence.

I also agree with the orders which his Honour proposes.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 21/07/1995

I have read the reasons of Demack J and subject to the following additional observations agree with them. Because of the circumstances proved against the appellant, which are explained by his Honour, the Crown case was an overwhelming one, if uncontradicted, and it is difficult to imagine how a rational jury could have acquitted unless some credence was given to the appellant’s sworn account of events. That account was, on the face of it, a highly improbable story - made less credible, of course, because the appellant’s initial version of events was quite different from that later given.

In Edwards (1993) 178 C.L.R. 193, the principal judgment is that of Deane, Dawson and Gaudron JJ. Unless the practice there explained is, in a case to which it properly applies, followed by the trial judge a conviction may be vitiated. That practice is to tell the jury that a lie told by the accused can be corroborative of the Crown case only if the jury is satisfied that the lie was deliberate, related to a material issue, sprang from a realisation of guilt and a fear of the truth, and was shown to be a lie by evidence other than that to be corroborated. Further, if the lie is the only evidence against the accused, or is an indispensable link in a chain of evidence necessary to prove guilt, both the fact that it is a lie and the fact that it is an admission against interest must be proved beyond reasonable doubt. But if the lie is neither the only evidence against the accused, nor such a link as has been mentioned, the jury may find that the third requirement mentioned above, that the lie springs from a "realisation of guilt and a fear of the truth", is satisfied without that being proved beyond reasonable doubt and indeed without applying any particular standard of proof.

Further, in such a case as Edwards, the lie must be precisely identified for the jury, as must the circumstances and events said to indicate that it constitutes an admission against interest. The jury must, further, be told that there may be reasons for the telling of a lie apart from the realisation of guilt. Examples should presumably be given and the jury should be told that "if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission".

The foregoing exposition omits reference to one passage in the reasons being discussed. It is said that:

" And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence . . . " (211)

This part and in particular the reference to revealing a knowledge of the offence or some aspect of it should not be applied mechanically. It may be common ground that the accused knew about the offence at all material times, for example the real dispute may be as to whether he committed the offence himself or saw another commit it.

The question is: to what sorts of cases does Edwards apply? As I read the judgments in the case, it is only if the lie is relied on as an admission or otherwise as being corroborative of the Crown’s allegations that the directions mentioned above must be given. If the accused gives evidence denying the substance of the Crown’s case (as the appellant did), lies told by him, in court or out, which do not necessarily comply with the four Edwards requirements may diminish or expunge whatever chance the appellant has of having his version taken seriously by the jury. For example, lies told on issues which are not material in the sense explained in Edwards may well diminish the accused’s credibility. It would seem foolish for the judge to tell the jury that such lies must necessarily be ignored, in determining whether the accused’s version has enough substance to create doubts about what might otherwise be thought to be (as here) a very strong Crown case.

The distinction which Edwards makes is between the use of lies as admissions against interest or as corroborative of the Crown case, on the one hand, and their use as merely going to credit, on the other. The distinction is not necessarily one which is easy to apply; even in a case of the latter type, it may be the accused’s lies which expunge whatever chance of acquittal he had; lies on immaterial points may be, in truth, the factor which encourages the jury entirely to reject a version given by the accused which is, as here, improbable on the face of it, and such lies may in that sense be critical in producing a conviction.

It is my view that in the present case a question for the jury was the credit of the accused, who gave evidence in his own defence, and the jury had to consider among other questions whether the appellant’s evidence should be sufficiently taken notice of to lead to, or assist, the conclusion that the Crown case was not proved beyond reasonable doubt. A factor which the jury might properly consider in that connection was that the appellant’s story in court was admittedly quite different from that which he had told when first asked about the matter. The jury was not invited to use any lie told as corroborative or as an admission against interest and it was therefore not obligatory to give the Edwards directions. In my opinion such directions as the judge gave, relevant to the change of story, were proper and fair; I note as did Demack J that the jury was specifically told that rejection of the appellant’s evidence should not necessarily lead to a conviction.

I agree with the orders proposed by Demack J, namely that the appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.

REASONS FOR JUDGMENT - DEMACK J.

Judgment delivered 21/07/1995

The appellant was convicted of one count of rape and sentenced to eight years imprisonment. He has appealed against his conviction and seeks leave to appeal against sentence.

Only one ground of appeal was argued:-
The learned Trial Judge erred in failing to direct the jury as to the way in
which they may treat evidence of false statements by the accused made
out of Court.
The case was strongly contested by the appellant and the summing up was very

detailed. No redirection about the proper use of lies were sought, although the prosecutor referred to Edwards v. The Queen (1993) 178 C.L.R. 193 in the course of submissions about circumstantial evidence. Now it is asserted that a direction should have been given in accordance with the following passage in the judgment of Deane, Dawson and Gaudron JJ. in Edwards (at p. 210):-

"A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest (See M v. R (unreported; S.A. Court of Criminal Appeal; 18 August 1993; pp. 4-5)."

The judgments in Edwards make it clear that the directions that must be given concerning the use the jury may make of lies depends on the circumstances of each case. If the prosecution relies on a lie as an admission against interest, then a direction along the lines suggested should be given. However, the prosecution may use the lie only to destroy the accused's credibility, and in that case the appropriate direction is to remind the jury that if the accused is disbelieved that does not mean he must be convicted. The onus of proof still lies upon the prosecution. In Edwards, Brennan J. quoted from the judgment of Lord Devlin in Broadhurst v. The Queen (1964) A.C., 441 at p. 457. The following passage from His Lordship's remarks illustrates this point:-

"It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused."

Early in his summing up, the experienced District Court Judge said:-

"Even if you reject the accused's evidence on matters favourable to him, you do not automatically convict. You do not convict unless and until you are satisfied beyond reasonable doubt on evidence that you accept and act on as credible and reliable establishes every element of the offence."

He had previously made it clear that the onus lay on the prosecution.

In the following 70 pages of summing up, he repeatedly emphasised the fact that the prosecution must prove its case beyond reasonable doubt.

What then was the prosecution case? It came essentially from the complainant, aged 23 years. She said she was out walking and jogging along a track below Picnic Point, Toowoomba after 4 pm on 29 June 1994. She was dressed in a shirt, a jumper, briefs, stretch shorts, socks and sneakers. She was wearing an Akubra hat and had a green scrunchy in her hair. She was approached by the appellant, who asked her the time. He turned and walked some distance with her. She started to jog away from him. He pushed her into the bank on the side of the track. In a struggle all her clothes except one sock were removed. The appellant had intercourse against her will. He left her lying naked on the track and took her shorts away. She dressed in the clothes at hand and ran to a house over 2 kilometres away and complained of rape. Two pieces of evidence were relied on by the prosecution as corroboration, an abrasion at the opening of her vagina, found on medical examination, and the shorts which were found by the police off the track about 10 to 15 metres from where the scrunchy was found.

A woman had seen a man come from the track at the relevant time, and she memorised the number of the vehicle in which he drove away. When the police publicised the complaint of rape she gave them the number of the vehicle she had seen. This was traced to the appellant. He admitted, when interviewed, that he had been on the track, but said he had seen no one.

Subsequently, he was interviewed further. He admitted having intercourse with a woman on the track. He said he had lied about this earlier because he was married and did not want his wife to find out. He said he had met a woman on the track a couple of days earlier. She had seemed friendly and he thought she might be there again. He met the complainant and thought she was the same woman he had met previously. They talked and walked. She seemed friendly and after some kissing, hugging and fondling, she agreed to intercourse. After she had stripped and he had entered her, she began to complain, asked him to stop and screamed . He ran away.

At the trial, the appellant gave evidence to the same effect as his statements in the recorded interview. He added that while having intercourse he noticed that the complainant had an inverted right nipple. He commented on this and the complainant became angry, causing him to stop.

When the complainant was medically examined, there was sufficient ejaculate in her vagina to permit DNA testing. This established that the ejaculate could have come from only 0.1% of the male population and that the appellant was within that group.

The case was obviously one of credibility. The fact that the appellant had lied in his first statements to the police was something that the jury could take into account. The lengthy summing up fully deals with the submissions made by both counsel on the question of credibility. It was classically a case for the kind of direction referred to by Lord Devlin, and that direction was given.

In my opinion, the direction sought could have only harmed the defence case. The direction given correctly emphasised the need for the prosecution to prove its case beyond reasonable doubt. In other words the jury had to concentrate on the complainant's evidence. The direction now sought would have concentrated far more upon the appellant's reasons for lying, in case it could be said that the reason he lied was because he knew the truth would implicate him in the offence.

There will be cases where the prosecution seeks to rely on an accused's lies as corroborative of the complainant's evidence. Edwards deals with the appropriate directions in such a case. This was not such a case.

Reading an appeal book may give a very distorted picture of the witnesses in a trial. However, my reading of the record leaves me with the impression that the appellant's evidence was so improbable that it would have been an appropriate case to give the kind of direction now sought, so that the reasons for his lies could have become a major issue in the jury's deliberations. The jury does not appear to have found it as easy to see where the truth lay as I am tempted to say. They retired for over seventeen hours before returning a verdict. This endorses the course the Trial Judge took, so that the essential task the jury always had was to be satisfied positively on all the evidence that the appellant's guilt had been proved beyond reasonable doubt.

The appeal against conviction should be dismissed.
In respect of the application for leave to appeal against sentence, His Honour

observed that two experienced counsel had submitted that a sentence of eight years is within the range and is not inappropriate. It is now submitted that the sentence of eight years' imprisonment is manifestly excessive.

The factors relied on by the applicant are:-

i	no threats to kill or to cause serious injury
ii	no significant violence
iii	no previous convictions
iv	economic hardship on applicant and family.

The applicant is 40 years old, married with two daughters aged eight years and ten years. He has an aircraft repair business. A married man with young daughters can hardly expect that his family circumstances may be pleaded in mitigation after a conviction for a rape.

The complainant is aged 23 years and had been working with her mother and sister in a convenience store they had jointly purchased. She received counselling following the rape. Almost four months after the rape she was diagnosed as suffering from a post-traumatic stress disorder. The psychiatrist's report, which was tendered for the purposes of sentencing, suggests that the stress of the trial would not have helped her recovery, but, no doubt, the fact that the matter is now concluded will be helpful. The report suggests a complete resolution in twenty-four months.

The whole of the evidence suggests that the appellant had set out in the expectation of some kind of sexual encounter. He approached the complainant who had never met him before. He was clearly rebuffed by her, but proceeded to strip her and rape her. Eight years is by no means excessive for such a crime. No remorse has been shown, and there is no other basis for thinking that he is now so well upon the path of rehabilitation that a recommendation for early parole is appropriate.

The application for leave to appeal against sentence should be refused.