R v Colquhoun - [2009] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Permission to Appeal)
R v COLQUHOUN
[2009] SASC 138
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice David)
21 May 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION
Appellant charged with rape – evidence given by appellant’s foster mother at odds with evidence of other witnesses – prosecutor had called foster mother as a witness – suggestion made by prosecutor in closing address evidence of appellant’s foster mother was biased in favour of appellant – whether prosecutor impermissibly impeached evidence of own witness.
Held: Prosecutor did not impermissibly impeach evidence of witness. Absent a declaration that the witness was hostile, there was no opportunity for the prosecutor to confront or cross-examine the witness about her evidence.

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Complainant identified appellant as person at the door of her room following rape – inference to be drawn that the person at the door was the person who had raped complainant – whether trial judge erred in not instructing jury that due to tiredness and intoxication of complainant her perception of time may have been affected.
Held: Trial judge tailored direction appropriately.
Trial judge directed jury that there was no need to consider whether the complainant had a motive to lie – counsel for the appellant cross-examined the complainant on this point – prosecution did not ask rhetorical question “why would the complainant lie?” – whether trial judge impermissibly removed consideration of motive to lie from the jury.
Held: Although both trial judge and counsel for the appellant failed to distinguish between rhetorical question put by prosecutor and motive to lie raised in cross-examination, the question of motive to lie was raised so faintly that the direction given by the trial judge would not have caused a miscarriage of justice.
Use to which complaint may be put in cases involving sexual assault – whether trial judge suggested that complaint could amount to corroboration of the complainant’s evidence.
Held: On a proper reading of the trial judge’s summing up, it is clear that the trial judge did not instruct the jury that the evidence of complaint could be used to corroborate the complainant’s evidence.

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Appellant argued that verdict was unreasonable or insupportable having regard to the evidence.
Held: It was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty of the offence.
Held: Permission to appeal conviction refused on all grounds.
Criminal Law Consoldiation Act 1935 (SA) s 48; Evidence Act 1929 (SA) s 27; Evidence Act 1995 (NSW) s 38, referred to.
R v Kennedy (2000) 118 A Crim R 34, distinguished.
R v Macfie (No 2) (2004) 11 VR 215, discussed.
M v The Queen (1994) 181 CLR 487; R v Goncalves (1997) 99 A Crim R 193; R v Mark & Elmazovski [2006] VSCA 251; R v Sluczanowski (2008) 256 LSJS 277, considered.

R v COLQUHOUN
[2009] SASC 138
Court of Criminal Appeal: Vanstone, Anderson and David JJ

VANSTONE J: I agree that permission to appeal should be refused for the reasons given by David J.
ANDERSON J: I agree that permission to appeal on all grounds should be refused for the reasons given by David J.
DAVID J. The appellant was convicted by verdict of a jury of one count of rape, contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA). He now seeks permission to appeal against his conviction.
The appellant resided with his foster parents, Christopher and Irene Brooks, and the offence involved behaviour which took place at their home. The victim (“V”) was the girlfriend of Lyndon Brooks, who is the grandchild of Christopher and Irene Brooks. The incident which was the subject of the charge involved the placing of an object into V’s vagina in the early hours of the morning following the 21st birthday party of Scott Brooks, who is the older brother of Lyndon Brooks.
The appeal involves complaints about:
·the closing address of the Crown prosecutor in impermissibly impeaching the credit of a Crown witness;
·the trial judge’s directions on the question of identification of the offender;
·the trial judge’s directions on a motive for V to lie; and
·the trial judge’s directions in relation to a complaint made by V to Lyndon Brooks.
The appellant also argues that having regard to the evidence, the verdict of the jury was unreasonable or could not be supported.
Background
It was common ground that on the evening of 6 March 2007 there was a party held to celebrate the 21st birthday of Scott Brooks. That party was held at the home of his grandparents, Christopher and Irene Brooks. Among those who attended were Scott Brooks’ brother, Lyndon, and V, who at that time was Lyndon’s girlfriend. There were about ten other people at the party, one of whom was the appellant.
At the time of the incident the appellant used to sleep at the back of the house in a rumpus room with a bar and pool table, which was used as a games room but also contained a bed for him.
It was clear from the evidence at trial that during the course of the evening a lot of alcohol was consumed by a number of people and, in particular, V.
V gave evidence that during the course of the evening she drank a significant amount of vodka and was so drunk she could remember waking twice in the rumpus room on the appellant’s bed, but could not actually remember going to bed the first time.
On the first occasion she awoke to find that someone was inside her leggings, but she “pushed the hand away” and told that person to stop. She assumed that the person was her boyfriend. She then went back to sleep. On the second occasion she awoke to find that her leggings had been pushed down to her knees and that her vagina was being penetrated by an object. That evidence is the subject of the charge. The person who was penetrating her was behind her and she once again assumed that it was her boyfriend and told him to stop. However, after she felt the person get off the bed, she opened her eyes and rolled over and identified the appellant leaving the rumpus room through the sliding door. Also present in the rumpus room at the same time that this was happening were Lyndon Brooks and a person called Derek Tyndall, who were both asleep.
V gave evidence that immediately after the incident, and after she had identified the person who had penetrated her as the appellant, she first approached Derek Tyndall but could not wake him up. V then approached her boyfriend, Lyndon Brooks, but he was intoxicated and asleep. She could not remember exactly what she said to him but he was not reacting.
At this time Christopher and Irene Brooks and Scott Brooks were asleep in the house. Having failed to communicate with Derek Tyndall or Lyndon Brooks, V gave evidence that she went inside the house from the rumpus room and found Scott Brooks, who was in bed asleep. She spoke to him but he was also intoxicated and asleep. V said she ended up falling asleep in bed with Scott Brooks. She said that after she awoke the next morning, she eventually left the house with Lyndon Brooks and subsequently made a complaint to him implicating the appellant.
Both Lyndon Brooks and Scott Brooks gave evidence that V was upset the morning after the party, and Lyndon Brooks gave evidence that V kept saying she wanted to leave. They eventually went to the bus stop where they caught a bus to Elizabeth, and from there caught a train to Adelaide. They then caught another train to Noarlunga Centre, and after they got off at Noarlunga, Lyndon Brooks asked V what had happened and she said, “I woke up and John [the appellant] was inside me”. That short conversation was led by way of recent complaint.
Both Christopher Brooks and Irene Brooks gave evidence. Irene Brooks gave evidence concerning V’s demeanour the next morning, which was different from the evidence given on that topic by V, Scott Brooks and Lyndon Brooks. I will return in more detail to Irene Brooks’ evidence when I deal with ground 1 of the appeal.
Evidence was also led that about 34 hours after the incident which was the subject of the charge, vaginal swabs were taken from V, and those swabs contained sperm. It was established by way of DNA comparison, and there was no dispute, that the source of that sperm was Lyndon Brooks. Lyndon Brooks gave evidence that he had last had sexual intercourse with V at the end of the weekend of Sunday, 4 March. The samples were taken on 8 March and, in the opinion of the forensic scientist Julianna Henry, the timeframe was such that that act of intercourse could account for Lyndon Brooks’ sperm which was observed in the swab taken on 8 March.
The appellant elected not to give or call any evidence at trial.
Grounds of appeal
I turn to the grounds of appeal. There were originally three grounds of appeal, but by leave, the notice of appeal was amended to add two further grounds. I will deal with ground 3 last.
Ground 1
1.The closing address of the Learned Crown Prosecutor caused a miscarriage of justice.
Particulars
The Learned Crown Prosecutor impermissibly impeached the credit of the Crown witnesses Irene Brooks and Belinda Arnold.
On appeal counsel for the appellant confined his submissions to the Crown prosecutor impeaching the credit of Irene Brooks. There were no submissions made in relation to Belinda Arnold.
The appellant argues that there has been a miscarriage of justice because in the Crown prosecutor’s final address she criticised the evidence of her own witness. Irene Brooks was the foster mother of the appellant and he lived with her and her husband. Ms Brooks had been present at the party. The relevant part of her evidence was that she made observations about V’s behaviour and demeanour the morning after the party, before V left with Lyndon Brooks. Irene Brooks’ evidence on that topic was to the effect that:
·V was in a bad mood the morning after the party;
·V had declined an opportunity to leave the house with Lyndon Brooks and the witness Tyndall, but instead, remained at the house with her and the appellant; and
·after not taking that opportunity to leave the house, V cleaned up the backyard while the appellant was nearby.
In other words, Irene Brooks’ evidence was that the victim was not distressed, but was in a bad mood and was seemingly unconcerned about being in the presence of the appellant. This is to be contrasted with other parts of the Crown case, whereby Lyndon and Scott Brooks gave evidence that V was upset that morning.
Neither Scott Brooks, Lyndon Brooks, nor the witness Tyndall gave evidence that they had left the house, leaving the appellant with V; and in cross‑examination, V denied that the appellant was out in the backyard helping her clean up.
In the light of certain of Irene Brooks’ statements in evidence not being in her proof, the prosecutor made an application to have Irene Brooks declared hostile, pursuant to s 27 of the Evidence Act 1929 (SA), but later withdrew that application before any ruling was made. Of the differences between the evidence of Irene Brooks and the other prosecution witnesses, the prosecutor said in her final address:
You might think a useful starting point to that is how [V] came across when giving evidence. By that I don’t mean was she polished like the expert witnesses you heard in this trial but rather did her demeanour make you think that she was just telling the truth, speaking plainly about events as best she could? Did her evidence have that ring of truth about it? Did she make appropriate concessions? Did her story hang together? Did she show any apparent bias or axe to grind against anyone? Those sorts of questions are the sorts of questions you are entitled to ask yourselves about every single witness in this trial, not just [V].
I want to use an example, an example you might think is a good example, of that approach with one of the other witnesses, the grandmother, Irene Brooks. How did she come across to you? Did she come across as someone who was just here to do her best and tell the truth, ungarnished as it was, or do you think she had a bit of an agenda or some bias that was coming through from time to time? You know of her long-standing relationship with the accused, effectively his mother. What did you make of her claim she got along very well with [V]? How did that sit with the other evidence? You might recall Lyndon Brooks saying that his grandmother did not like her one little bit. What do you make of that apparent claim to have got along very well with [V] in the witness box? Do you think perhaps she came to this court intending to give the accused a bit of a help along wherever she could at various points, to sink the boot into [V] if she got the chance to? Did you see glimmers of that during the course of her evidence? I will give you some examples.
Every time Mrs Brooks gave evidence about the accused she spoke of him in glowing terms. ‘He is putting up the decorations’, ‘He is cooking the barbecue’, ‘looking out for everyone’, ‘cleaning the next morning’, ‘He is the only one who isn’t drunk’. I’m not suggesting one or some of those things might not be accurate but it comes back to the tenor or flavour of the witness’s evidence. How does that sit with everyone else?
Remember also how the grandmother Mrs Brooks described Scott Brooks coming running, remember that evidence, running down the corridor, she could hear his feet because she has tiles, not carpet. Providing a little too much information there? Anyway, apparently Scott is running down the corridor arms waving, ‘What is [V] doing in my bed?’ How did that sit with the other evidence? You might recall Scott Brooks didn’t mention coming running down the corridor waving his arms in the air alarmed and distressed, certainly as Mrs Brooks tried to present it. It is not the way anyone describes the mood of that morning, you might think. At its highest Scott Brooks said ‘Yeah, I was a bit surprised she was there’. Really you might think he was describing fairly normal behaviour.
Also in relation to Mrs Brooks’ evidence, remember her evidence about this apparent conversation about Derek catching the bus the next morning. The flavour of that evidence was Derek was going to get the bus, you might recall Mrs Brooks gratuitously threw in ‘And Lyndon and [V] could have got that same bus’ – there is no question of that, that was thrown in – but apparently it was [V] effectively saying ‘No, no, I’ll stay’.
Ladies and gentlemen, you might think if you accept that evidence that is a bit telling in relation to [V] because it looks like she actually wants to stay, but not one other witness mentioned that exchange, not Derek, not Scott, not Lyndon and not [V]. You might think that Lyndon Brooks might remember if he walked Derek to the bus stop that morning, but Lyndon’s evidence didn’t mention that. What he mentioned is going into the bedroom and [V] sobbing. I’ll come to that in a moment.
You might think that evidence is very, very telling in terms of how impartial Irene Brooks was attempting to be in her evidence.
Ladies and gentlemen, just one final example of the way a bias can come out in the way evidence is given in relation to Mrs Brooks, you might recall her evidence about cleaning up in the backyard. She was asked what they were doing out in the backyard at cross‑examination, p 148, and [s]he said: ‘Lyndon had gone to the bus stop with his cousin, John was out the back washing the barbecue and [V] was out the back clearing the table, bringing the dishes out for me to wash and putting any rubbish, decorations and that into a rubbish bag which was hanging up on the shed door which was the - the barbecue was here (INDICATES), the shed was that far away (INDICATES) and she was going and taking the stuff off the table and putting it into the rubbish bag and John was cleaning - washing the barbecue.’ Now, in one sense, what is the controversy? All the witnesses talk generally about cleaning up in the backyard, but it is the emphasis on this evidence.
What do you make of the way Mrs Brooks was at pains to have the accused here and [V] there (INDICATES)? Implicit in that is a suggestion that, ‘Well, if they are that close to each other, she could hardly have been truthful about the allegation she then subsequently makes’. Again, it is the flavour, the tenor, the sorts of things you will pick up on because of the sorts of ways you judge people in your everyday lives.
You are entitled to ask those questions about all of the witnesses in this trial. Did they show a particular bias? And that might well be relevant to your assessment of the evidence.
Counsel for the appellant argues that the prosecutor erred in so impeaching her own witness, thereby causing a miscarriage of justice. The appellant argues that fairness requires that in some way the Crown prosecutor should have put questions to the witness to give her the opportunity to answer suggestions that were made in the final address, that the witness had a bias in favour of the appellant, and her evidence was so tainted. Counsel for the appellant argues that that being so, putting that submission to the jury without it being put to the witness was unfair.
In the circumstances it is very difficult to see how the prosecutor could have put those suggestions to the witness. Short of having Irene Brooks declared hostile, she would not be allowed to cross-examine her own witness and, in my view, faced with differing versions from her own witnesses on peripheral but important issues, it was important that the prosecutor deal with the matter. I can see no reason why a prosecutor could not make submissions adverse to her own witness where that witness’ evidence conflicted with other parts of the prosecution case.
In support of his argument, counsel for the appellant relies upon the decision of the New South Wales Court of Criminal Appeal in R v Kennedy (“Kennedy”).[1] In that case the appellant was convicted of two sexual offences. During his closing address the Crown prosecutor put to the jury that the appellant’s mother had endeavoured to protect the appellant in her evidence. No warning had been given that the Crown would seek to impeach the evidence of the mother prior to the closing address and, as such, the mother was given no opportunity to confront the allegation. The New South Wales Court of Criminal Appeal (Studdert J, with whom Heydon JA and Greg James J agreed) allowed the appeal. During the course of his reasons, Studdert J noted that there could be no question that the Crown prosecutor had a responsibility to present the Crown case properly and fairly. He went on to note: [2]
Unfortunately what the Crown prosecutor did in relation to this witness departed from proper and fair presentation. Fairness not only to the witness but to the appellant required that the witness should have been afforded the opportunity to address the substance of the critical submissions later made to the jury. Since the Crown prosecutor did not afford the witness the opportunity to meet these assertions later put to the jury, there was no justification for their being made.
In that case the Crown were then criticised for not making an application, pursuant to s 38 of the Evidence Act 1995 (NSW), to cross-examine the witness.
[1] R v Kennedy (2000) 118 A Crim R 34.
[2] R v Kennedy (2000) 118 A Crim R 34, 41.

Section 38 of the Evidence Act 1995 (NSW) reads as follows:
38Unfavourable witnesses
(1)     A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:
(a)evidence given by the witness that is unfavourable to the party, or
(b)a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or
(c)whether the witness has, at any time, made a prior inconsistent statement.
(2)     Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).
(3)     The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.
Note. The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.
(4)     Questioning under this section is to take place before the other parties cross‑examine the witness, unless the court otherwise directs.
(5)     If the court so directs, the order in which the parties question the witness is to be as the court directs.
(6)     Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:
(a)whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and
(b)the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
(7)     A party is subject to the same liability to be cross-examined under this section as any other witness if:
(a)a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and
(b)the party is a witness in the proceeding.
It is to be noted that there is no equivalent section in South Australia. In my view, the decision in Kennedy[3] relies upon fairness to the witness arising from s 38 of the Evidence Act 1995 (NSW), which envisages that a witness will be put on notice that their evidence is going to be challenged by the party who called them. Therefore, that decision can be of limited use in this matter.
[3]    R v Kennedy (2000) 118 A Crim R 34.
In Victoria, like South Australia, there is also no equivalent to s 38 of the Evidence Act 1995 (NSW). In R v Macfie (No 2) (“Macfie”),[4] the accused was charged with numerous sexual offences against young female complainants. In the closing address to the jury the prosecutor sought to impeach the evidence for the prosecution given by the parents of one of the complainants, stating that the parents were either complicit in the sexual offences committed on their daughter, or had “turned a blind eye”.[5] The appellant complained that these comments had caused unfairness, as no prior indication had been given by the prosecutor that he would attack the credibility of the parents.
[4] R v Macfie (No 2) (2004) 11 VR 215.
[5] R v Macfie (No 2) (2004) 11 VR 215, 222‑3.
In dismissing the appeal in Macfie,[6] Eames JA (with whom Callaway and Buchanan JJA agreed) drew a distinction between impeachment of a witness during a closing address that supports proof of the Crown case and instances when the attack is peripheral to the case.[7] Whilst the former instance may attract the scrutiny of an appellate court, the latter is permissible. Eames JA held that the New South Wales cases were distinguishable as they operated under the Evidence Act 1995 (NSW).[8] That being the case, once it was accepted that the witness was relevant and needed to be called, there were no other relevant opportunities to criticise the evidence of that witness.[9]
[6]    R v Macfie (No 2) (2004) 11 VR 215.
[7]    R v Macfie (No 2) (2004) 11 VR 215, 226.
[8]    Evidence Act 1995 (NSW) s 38.
[9]    R v Macfie (No 2) (2004) 11 VR 215, 226.
Furthermore, the sole focus of the Court of Appeal in Macfie[10] was on whether the impeaching of the evidence of the witness had caused unfairness to the accused. Except in extreme cases, unfairness to the witness would not justify a finding of a miscarriage of justice.[11] It is implicit in this reasoning that it is not necessarily inconsistent with the role of the prosecutor to impeach the evidence of a Crown witness.
[10] R v Macfie (No 2) (2004) 11 VR 215.
[11] R v Macfie (No 2) (2004) 11 VR 215, 228‑9.
In concluding his reasons in Macfie,[12] Eames JA cited R v Goncalves,[13] noting that in that decision:
Wheeler J concluded that there is no rule prohibiting a party from submitting that the jury might disbelieve portions of the evidence which were not consistent with the guilt of the accused person.[14]
[12] R v Macfie (No 2) (2004) 11 VR 215.
[13] R v Goncalves (1997) 99 A Crim R 193
[14] R v Macfie (No 2) (2004) 11 VR 215, 230.
Macfie[15] was also applied by the Victorian Court of Criminal Appeal in R v Mark & Elmazovski[16] where Maxwell P, (with whom Vincent JA and Bongiorno JA agreed) held that there is no rule prohibiting a prosecutor from criticising the evidence of a Crown witness. The question is whether the course taken by the prosecutor led to a miscarriage of justice. Maxwell P said:[17]
In the present case, there was a head-on conflict between the evidence of M and the evidence of S and T. The prosecutor was entitled – as were defence counsel - to invite the jury to prefer one version over another and to advance reasons for the suggested preference. There was no miscarriage of justice.
[15] R v Macfie (No 2) (2004) 11 VR 215.
[16] R v Mark & Elmazovski [2006] VSCA 251.
[17] R v Mark & Elmazovski [2006] VSCA 251 [70].
In my view, in the absence of the equivalent of s 38 of the Evidence Act 1995 (NSW), the Victorian approach is the correct one. In the present case there was a direct conflict between the evidence of V and other prosecution witnesses and that of Irene Brooks. There was no opportunity to confront or cross-examine Irene Brooks about that difference, short of asking inadmissible questions, and both the prosecutor and the defence counsel could quite properly make submissions preferring one version to another.
I would refuse permission to appeal on this ground.
Ground 2
2.That the Learned Trial Judge erred in directing the jury on the question of the identification of the accused as the offender. (See paragraph 4 of page 4 and 9 of page 4 of Directions. See also page 6 paragraph 2 and following. See also re‑direction at pages 14 and 16.)
As I understand the argument, the prosecution relied upon two pieces of circumstantial evidence to establish that the appellant was the offender. Firstly, that V felt something entering her vagina when she was in bed with someone. Secondly, that she next saw the appellant at the door. There is no dispute that the trial judge gave appropriate directions about identification. It was the prosecution case that if it was proved that V was correct in saying that her vagina was entered by someone whilst in the bed, and that she next saw the appellant at the door, the inference to be proved from those two proven facts was that the appellant was the person who placed an object in her vagina.
The appellant now argues that the trial judge should have gone further and put the possibility to the jury that they should consider whether, even if she was correct about her vagina being entered by an object and correct about the identification of the appellant, nevertheless, because of her state of intoxication, the timing might have been such that it would not necessarily follow that because she saw the appellant at the door that he was necessarily the person who placed an object in her vagina. The appellant argues that because of the confusion caused by alcohol and tiredness, there may have been a long gap in time between the two observations.
That is an argument that was open for the defence to put to the jury. It does not follow that the trial judge necessarily had to talk about it in his summing up. In directing the jury the trial judge said:
In this case there is no direct evidence that the person in the bed with [V] was the accused. What you have are two pieces of evidence: first there is the evidence of what [V] felt in the bed; secondly, there is her evidence that she saw a person whom she recognised as the accused going out the door. So, what you are required to do is to put those two pieces of evidence together for the purpose of drawing the inference that it was the accused who was in the bed. But whether it was or was not the accused or the person who [V] saw going out the door in the bed is a matter with respect to which you will have to draw inferences because there is no direct evidence of that fact.
You can only act on the identification evidence if you are satisfied that it is accurate and reliable. If you are not satisfied as to the identification evidence, you cannot use it as a basis for convicting the accused. However, if, after carefully examining the evidence of the identification of the accused and after paying due heed to this warning which I have given you, you are satisfied beyond reasonable doubt about the correctness of the identification of the accused as the offender, then you are entitled to act upon the evidence of identification.
In my view, the trial judge tailored his directions to the facts of the case, and the defence argument that there might be a difference in time between what happened to V in bed and recognising the appellant was clearly open and obvious to the jury.
I would refuse permission to appeal on this ground.
Ground 4
4.The Learned Trial Judge erred in his direction to the jury to the effect that whether the complainant had a motive to lie was not something which the jury needed to consider.
This ground was added by agreed amendment to the original notice of appeal.
In his cross-examination of V, counsel for the appellant at trial asked the following questions:
Q.You said in your evidence-in-chief you were worried about Lyndon because he has a violent temper; isn’t that the case.
A.Yes.
Q.So you didn’t want to tell him you had been in bed with his brother -
A.No.
Q.- in case he got violent; isn’t that the case.
A.No, I didn’t want to tell him what that piece of shit did to me because I didn’t want him to get hurt.
Q.Isn’t it the case you actually made this up about the accused once you realised Lyndon saw you and Scott in bed.
A.Pardon?
Q.Isn’t it the case you made this up, this story you are telling today involving the accused, because once you realised Lyndon saw you in bed you wanted to protect yourself from Lyndon’s temper; isn’t that the case.
A. I don’t understand what you’re trying to say.
Q.What I’m trying to say is the accusations you have made against the accused today are false, aren’t they.
A.I beg your pardon, no, they’re not.
Q.And you made them up as an attempt to explain what you were doing in bed with Lyndon’s brother; isn’t that the case.
A. No, that is not the case.
In his address to the jury, the appellant’s counsel said the following on that topic:
We know that [V] said that Lyndon has a violent temper. Could this be a reason for [V] to make up a story to avoid any consequences for being in bed with her boyfriend’s brother, any consequences from her boyfriend with a violent temper? Who knows.
Was she simply mistaken about it being the accused at the door? Who knows. Did someone other than the accused do something to her that night? We don’t know. We don’t know because the only evidence before you is the evidence of [V], really, because everyone else has got no memory from pretty much the time they passed out. Mr Lyndon’s memory is of being woken up by his girlfriend in a distressed state. He goes back to bed after seeing his girlfriend and brother in bed together. We don’t know.
But what we do know is that her memory could hardly be reliable in the circumstances. We don’t know the answers to the questions and you shouldn’t speculate as to perhaps what did happen, or you should certainly not speculate or have the temptation to ask yourself the question ‘Why would she make this up?’, because that is a completely inappropriate question and the highest court in this land has said it’s totally inappropriate to ask that question because the answer is both unknown and unknowable and the High Court has said that.
If you are tempted to speculate as to why the victim might have made this up ‘What would she have to gain?’ I would invite you to totally disregard that question and it would be totally inappropriate to form part of your deliberations. Human nature wants you to but you have a very important function as jurors. Your function is to determine the guilt or innocence of my client, the guilt or innocence in relation to a very serious criminal charge.
In his summing up to the jury the trial judge said:
Counsel mentioned the topic of whether [V] had a motive to lie. That is not something which you need to consider, but most importantly you must remember that the accused has no onus to prove anything. The accused does not have to prove that [V] had a motive to lie, so that is not a matter that you need to trouble yourselves with.
The appellant now argues that in so directing the jury the trial judge took away from the jury the consideration of a motive to lie when assessing the credibility of V.
Counsel for the respondent argues that although a motive to lie was raised by the appellant’s counsel in cross-examination, he specifically cast aside that argument in his address and the trial judge was merely tailoring his summing up to the facts of the case.
This has caused me some concern. I am mindful of what Duggan J said in R v Sluczanowski:[18]
A direction not to speculate as to whether the complainant had a motive for making false allegations is appropriate if made in response to a prosecution submission along the lines of the rhetorical question “Why should the complainant lie?” However, it is inappropriate when put as a general proposition in a case where, as here, there was evidence which required the jury to consider whether the complainant had a particular reason for making false allegations.
In the present case, the trial judge’s direction could not have been in response to a submission by the prosecutor about why V should lie, as no such submission was made. There was cross-examination (as set out above) along the lines that there was a motive to lie. Therefore, it is argued that the trial judge’s direction would have the effect of erroneously withdrawing that consideration from the jury.
[18] R v Sluczanowski (2008) 256 LSJS 277, 284.
Although I am of the view that there is some merit in the appellant’s argument, when one looks at the facts of this case, there was no miscarriage of justice. Although the appellant’s counsel at trial cross-examined on the possibility of a motive to lie, having received a negative answer from V, there was no other evidence adduced to that effect. After initially raising it in his address, counsel specifically put to the jury that they themselves should not speculate.
The way this matter was put to the jury by the appellant’s counsel at trial has caused me a little concern. When he invited the jury to totally disregard the question as to why V might have made up her story, it is difficult to know whether he was referring to the rhetorical question that could be posed by the prosecution (but was not in this case), or whether he was referring to the motive to lie which he had raised in cross-examination. The trial judge also failed to make that distinction.
However, in my view, although the motive to lie was raised initially, it was discarded so emphatically that the direction by the trial judge could not have caused a miscarriage of justice.
I would refuse permission to appeal on this ground.
Ground 5
5.The Learned Trial Judge failed to direct the jury appropriately on the issue of recent complaint, in particular:
(a) he suggested the complaint could amount to corroboration, and
(b) he failed to direct that any out-of-court statement was not admissible as proof of the facts contained in that statement.
This ground of appeal was allowed by way of amendment of the notice of appeal during argument.
On a closer inspection of the trial judge’s summing up, it is clear that he did direct the jury about the proper use of the complaint in the usual and correct way. In argument, there was a suggestion that that may not be so. Therefore, it is not necessary to deal with ground 5(b).
In relation to ground 5(a), when talking about certain inconsistent statements that V had made about the alleged offence, the trial judge said in his summing up:
The prosecutor suggests that the complaint to Lyndon Brooks amounted to corroboration. Well, in fact the complaint to Lyndon Brooks is consistent with each of those three versions so the complaint to Lyndon Brooks does not necessarily corroborate any one of those three versions.
As can be seen, the trial judge was not at that stage of his summing up talking about the complaint and the limited use that it should be put to. However, in talking about inconsistencies, he made the suggestion that the prosecutor argued that V’s complaint to Lyndon Brooks amounted to corroboration. I should make it clear at the outset that the prosecutor said no such thing in her address. Nevertheless, the appellant argues that even alluding to the fact that the prosecutor makes such a suggestion, without correction, is wrong in law and would cause a miscarriage of justice. If the prosecutor or the trial judge did make such a suggestion, it would be wrong, because a complaint cannot amount to evidence of the truth of the statements, let alone evidence which could amount to corroboration. In my view, if that direction stood alone, it would be fatal to the conviction. However, the trial judge gave a careful and accurate direction on the use of recent complaint. He said earlier in his summing up:
That statement which [V] made to Lyndon Brooks at the Noarlunga station is not evidence of what happened in the bed. The only evidence of what happened in the bed is evidence which is given in this courtroom by witnesses.
However, the court allows evidence of complaints such as that to be given in a courtroom because it is considered that the making of a prompt complaint by a victim is relevant in assessing the truth of the alleged victim’s evidence in court. So you can use the evidence of the statement at the railway station for the purpose of assessing [V’s] evidence in the court as to what happened, but you should not treat that evidence of what [V] said at the railway station as evidence of what did happen in the bed. It is a subtle distinction but it is one which you need to make.
Admitting the complaint into evidence also tends to negative any notion that the allegation was a later invention. It is for you to consider whether you accept the evidence of the statement to Lyndon and, if so, what weight you attach to it.
On reading the two together it is clear that the jury could not have been deceived into thinking that the recent complaint to Lyndon Brooks amounted to either evidence, or evidence which corroborated V. It appears as though the trial judge erroneously used the word “corroboration” instead of the word “consistent” when comparing what was said in the complaint to what was said in the differing versions that V gave in evidence and to the police.
I would refuse permission to appeal on this ground.
Ground 3
3.That the verdict of the jury should be set aside as unreasonable or cannot be supported having regard to the evidence.
Particulars
3.1     The intoxication of the victim after she consumed a bottle of vodka in the hours prior to the rape - T25, 27.
3.2     The victim’s acknowledgement that she is a heavy sleeper and that it takes her “a few minutes to actually come to” – T33.
3.3     The state of the victim the following morning in that she was sick, dehydrated and physically ill all morning - T39.
3.4     The consumption of marijuana with the alcohol - T45.
3.5     That she was in a “haze” prior to identifying the applicant in the nearby vicinity of the bed - T53.
3.6     Her inconsistency in the description of the penetration alleged - T57, T59, 60 and 61.
3.7     Her expressed bias against the applicant by calling him “a piece of shit” - T61.
3.8     The victim’s use of alcohol was very rare - T46.

The test that this Court must ask itself when considering whether a verdict is unreasonable or cannot be supported having regard to the evidence 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.[19]
[Footnote omitted.]
I consider that it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty of the offence. I do not consider that the evidence
contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead [to the conclusion] that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted…[20]
There was evidence of intoxication and the consumption of marijuana, and that V was in an alcoholic state when identifying the appellant. There were inconsistencies in her evidence when describing the penetration. In her evidence she said the object or finger which penetrated her appeared to be coming from her right side. In a statement she gave to police on 9 March 2007 she said she felt it was put in her vagina from behind. Earlier she had told a Constable Arnold that somebody was on top of her. However, questions of alcohol, her state of mind and inconsistencies were placed clearly before the jury for its consideration. A vital part of the jury’s consideration was, while bearing in mind these matters, the judgment as to whether V was reliable and telling the truth. In my view, there is nothing which raises any doubt about the manner in which the jury discharged its duties.
[19] M v The Queen (1994) 181 CLR 487, 493.
[20] M v The Queen (1994) 181 CLR 487, 494.
I would refuse permission to appeal on this ground.
Conclusion
I would refuse permission to appeal on all grounds.