R v Dallas
[1998] VSCA 1
•24 July 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 178 of 1997
THE QUEEN
v
TREVOR McKENZIE DALLAS
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| JUDGES: | TADGELL, CHARLES and CALLAWAY, JJ.A. |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 June 1998 |
| DATE OF JUDGMENT: | 24 July 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSCA 1 |
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| CATCHWORDS: | Criminal law - Evidence - Suggestion of recent invention - Whether direction given appropriate in circumstances of case. |
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J.D. McArdle | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. K.J. Oderberg | Efrons & Associates |
TADGELL, J.A.:
I agree with Callaway, J.A.
CHARLES, J.A.:
I agree with Callaway, J.A.
CALLAWAY, J.A.:
The applicant, who is now aged 40, was arraigned in the County Court on a presentment containing eight counts. He pleaded guilty to count 1 (intentionally causing injury) and the Crown led no evidence on count 2. He pleaded not guilty to counts 3 to 8 (rape). After a trial occupying seven days the jury returned a verdict of guilty on three of the counts of rape and acquitted him on the others. The learned trial judge imposed sentences, and gave directions for concurrency and cumulation, that resulted in a total effective sentence of four-and-a-half years' imprisonment. Her Honour fixed a non-parole period of three years. An application for leave to appeal against sentence has been abandoned. The applicant applies for leave to appeal against conviction on a number of grounds, of which only grounds 3 and 4 were argued. Those grounds, omitting references to transcript and the depositions, read:
"3.
The learned trial judge erred in law and undoubtedly confused the jury in telling them that their function was not an exercise in finding the truth but in finding whether guilt had been proved. A finding of guilt can only be based on being satisfied of the truth.
4.
The learned trial judge erred in law in leaving the issue of recent invention for the consideration of the jury having regard to the cross-examination of the [complainant] by counsel for the [applicant] and the content of the committal depositions."
It is convenient to deal with ground 3 before turning to the facts, because they have no bearing on that ground. The impugned passage in the charge reads:
"The trial is not a search for the truth. That is not the issue for you. The issue for you as jurors is whether the evidence proves the accused to be guilty. That is the issue. Do you understand? The issue is not 'what is the truth?' The issue is not 'whose account do you believe?' Do you understand? The issue is whether the evidence proves the accused to be guilty."
Mr. Oderberg, who appeared for the applicant, submitted that that direction would have confused the jury, who would have thought "We do not have to look for the truth." I do not accept that submission. The jurors had sworn to give a true verdict according to the evidence. They had heard the witnesses swear to tell the truth. They were shortly to hear her Honour speak of cross-examination as "the weapon lawyers use to ex[tr]act the truth". It is not surprising that counsel was unable to say what the jury would have thought their task was if his submission was accepted.
The purport of her Honour's direction was that the jury were not to engage in an exercise of detection or adjudicate a competition between two rival accounts. They were to confine their attention to the question whether the evidence proved the accused to be guilty. The direction was given as part of her Honour's explanation of the onus of proof. That is how it would have been understood. Juries in this State are often told that a criminal trial is not a search for the truth of everything that happened in the transaction before the court and that they do not have to be satisfied of all the facts alleged or of the truth of all the evidence given, but that they must be satisfied of the guilt of the accused before they may find him guilty. That, too, is usually a prelude to an explanation of the onus of proof. I acknowledge that the purport of her Honour's direction was slightly different, but it did not constitute appellable error.
It will be recalled that ground 4 complains that the learned judge erred in law in leaving the issue of recent invention for the consideration of the jury. The ground was argued on the assumption that that meant leaving the issue of recent invention for the consideration of the jury in the way that her Honour did or in the words that her Honour chose. Mr. Oderberg submitted that, in the circumstances of this trial, the jury should have been told only:
"You have heard the applicant give evidence of events that were alleged to have occurred between himself and the victim. They were not put to the victim and they simply remain a matter for you to decide on whether you believe them or not."
In fairness to counsel, that was extemporized. If the submission is correct, the charge would no doubt identify the alleged incident of violence, followed by consensual sex, earlier in 1996 and refer to the complainant, rather than the victim.
In 1991 the applicant began a relationship with the complainant which continued until December 1995, when she told him that she was pregnant. His response led her to end the relationship, although from January to March 1996 they did continue to see each other and on occasions had sexual intercourse. All the counts on the presentment related to events that were said to have taken place in the early hours of Thursday 21st March 1996. The applicant's evidence was that he did not believe the relationship was over. The complainant's evidence supports the conclusion that it was of a volatile "on again off again" character. The last time that they had had consensual intercourse was the previous Sunday. Two medical witnesses said that the complainant had told them that she had pretended to enjoy sexual intercourse with the applicant, or to participate in it willingly, on the night of the alleged offences.
On the afternoon of Wednesday 20th March 1996 the applicant arrived uninvited at the complainant's home. Despite repeated requests to leave, he stayed. The complainant had a dinner party that evening and he joined the other guests for dinner. When they left at about 1 a.m., the complainant again asked him to leave and he refused. She changed into casual clothes and, as she was removing her make-up, noticed that he had walked into her bedroom, stripped the bed down and begun to take his clothes off. When she walked out of the en suite he had completely undressed.
An argument erupted about his conduct during the evening and her allegedly having an affair with one of the dinner guests. At some stage he struck her, breaking her nose and causing profuse bleeding. According to the complainant, that occurred before they got into bed; according to the applicant, it occurred when they were in bed. There followed three admitted acts of sexual intercourse, which corresponded with the three counts of rape on which the jury returned verdicts of guilty. They would have had little difficulty in concluding that the complainant did not consent. The critical issue at the trial was whether the applicant was aware that she was not consenting or might not be consenting. The injuries she sustained, which were not limited to a broken nose, would have had an important bearing on that issue.
In the course of her cross-examination the complainant said that "the other times [they had had sexual intercourse in 1996] it wasn't violent. The other times it wasn't an argument and there was no hitting. This time it was different. He was very violent and that was different. That was different from the other times."
The following exchange took place in the course of the applicant's cross-
examination:
"I don't want to be tedious but is this the reality, that you tell us that in so far as the number of times you had contact which involved the sexual activity between yourself and [the complainant] in the year 1996 save and except this Wednesday night, right, every time that that occurred, you never were violent to her, right?---I was violent with her on other occasions, yes.
What sort of violence was there on other occasions during 1996?---I had
slapped her before.
During 1996?---Yes.
And that was followed by sex?---Yes.
When did that happen, sir?---I don't know exactly when.
How many times did that happen?---Three or four times.
Three or four times?---Yes.
What three or four slaps or three or four different occasions?---Three or
four different occasions.
So let's get this straight. I don't want to be unfair to you. You're saying to this jury that during 1996 on three or four occasions when you and [the complainant] had sex that sex followed a slapping by you of her?---In 1996 it happened more than once. The other occasions happened over the relationship.
I'm asking you to zero in on 1996 please?---Yes, it happened in 1996 once.
How many times?---Once."Questions were then asked as to precisely when the previous occasion of slapping, followed by what must be taken to have been consensual sex, occurred. The applicant said that it had happened a few weeks earlier and that it could have been at the time of the St. Kilda Mardi Gras in early February. The cross-examiner asked:
"Tell me, did you ever hear it put on your behalf to [the complainant] that during 1996 she had sex with you which sex followed with you slapping her around before 20 March?---Did I hear someone put that to her?
Yes?---No.
I suggest to you that you just made that up. That you had sex with her in 1996 after slapping her around?---I'm under oath and no one ever lies under oath.
Is that right?---That is correct."
Accordingly a piece of evidence given by the applicant was said to be a recent invention. It was evidence which, if accepted, made it more plausible that he believed that the complainant was consenting. The point of the cross-examination was that the incident of violence in 1996 followed by consensual intercourse had not been put to the complainant because the applicant's counsel had no instructions to that effect. The allegation had been made up by the applicant in the witness box. It is clear from the charge that the jury were invited to reason that way in the course of the prosecutor's final address and that the topic was also mentioned by defence counsel in his address.
The learned judge instructed the jury as to how they should evaluate such an
argument.
"In respect of those matters, let me give you this direction. It has been put that counsel in cross-examination did not give the respective witness the opportunity to either support those allegations or deny them. I should tell you that there is a rule of conduct which requires counsel who propose to lead evidence of a material fact to put that fact in cross- examination to any witness who might be expected to be able to confirm or deny the evidence in order to give the witness the opportunity to confirm or deny it.
It is an important rule, because it exists in order to enable you to better compare the evidence of one witness with that of another. It may be that if the allegation had been put in cross-examination, the witness would have shown by his or her words or demeanour that he or she agreed with it.
On the other hand, it may be that the witness could have made an effective denial of it. The failure to cross-examine about the matter deprives you of the opportunity of seeing what reaction the witnesses [sic] would have had to it and failure to comply with that rule may occur for a number of reasons.
Sometimes the failure occurs by mistake. Counsel simply forgets to ask the right questions. Whether this explanation exists of course probably depends on the seriousness or significance of the allegation or indeed, may simply be an oversight in the course of an extensive cross- examination.
Sometimes it would merely be a waste of time to cross-examine the witness about the allegation, because it is apparent from the rest of the evidence that the witness is denying it. Sometimes it may be that the witness's own account is so incredible that the most effective cross- examination would be to make none at all. Sometimes, on the other hand, it is plain that if the allegation were true, fairness dictates that it should have been put to the witness.
In that case, you may well wonder why it was not put and you would be entitled to think that the real reason it was not put is that it has been invented after they gave evidence. In such a case, you are entitled to use the failure to put the allegation to other witnesses as a reason for doubting its truth.
Of course, a failure to put the allegation cannot of itself disprove the allegation, nor can it have the effect of proving any element of the crime which still requires to be proved beyond reasonable doubt. The only effect it can have is that of enabling you to form a view of the evidence which has been given; enabling you more readily to accept evidence, because the contrary assertion was not put to the witness or enabling you to [r]eject the assertion, because it was not put to a witness who could have denied it." (Emphasis added.)
The gravamen of the complaint made under cover of ground 4 was that the italicized words in that passage of the charge operated unfairly in the context of the trial because the reason the incident of violence in 1996, followed by consensual sex, had not been put to the complainant was that defence counsel was fearful of the answer she would give. At the committal the complainant agreed that there had been previous occasions when there had been heated arguments between herself and the applicant and occasions when he had been "forceful" towards her and they had had sexual intercourse. She testified that the last such occasion would probably have been in about June 1995. She said that "they were forced sex", but she agreed that she had not previously made any allegation of rape other than the allegations that were being investigated. Defence counsel told the trial judge that he apprehended that, if he asked the complainant questions about previous incidents of violence, she would refer to uncharged acts of alleged rape. The furthest he was prepared to go in cross-examining the complainant was to put it to her that it was a pretty tempestuous relationship over the whole five-year period, volatile and argumentative, and that they would frequently argue, yell at one another and push one another, after which they would finish up having consensual sex, most of which the complainant denied. Reference to that passage in the cross-examination was relied on, in re-examination of the applicant and presumably in counsel's final address, in order to rebut the suggestion of recent invention. Even if it covered the whole five years, it was plainly inadequate to do so.
Counsel's concern was, in my opinion, misplaced. As the prosecutor submitted below, it would have been open to defence counsel (if he had appropriate instructions) to confine the complainant's attention to the first three months of 1996 or the period after the termination of her pregnancy at the end of 1995, and to ask her whether, during that time, the applicant slapped her and that was followed by consensual sex. If she had given a non-responsive answer of a sufficiently prejudicial character, he could have applied for a discharge of the jury. It must nevertheless be accepted that counsel, in good faith and in the exercise of his forensic judgment, did not think it wise to go further than he did in his cross-examination of the complainant. It should also be mentioned that he protested vigorously against what he said was the unfairness of suggesting recent invention when, as he said, the prosecutor knew that his hands were tied because the only material available to rebut the suggestion included an allegation that there had been earlier occasions of forced, non-consensual sex.
In the course of the argument I was attracted to the submission that the learned judge had erred by encouraging the jury to think that the reason the allegation had not been put to the complainant was that it had been invented by the applicant after she had given her evidence when her Honour knew that there was a different, and completely innocent, explanation. On reflection, however, I do not think that the submission should be accepted. The assertion that was said to be a recent invention was that there had been a previous incident of violence, followed by consensual sex, in 1996. There is no reason to think that counsel had instructions that would have enabled him to ask the complainant about a previous incident of violence of the kind described by the applicant in his evidence. The latest incident referred to at the committal was said to have occurred in about June 1995. Moreover it appears to have been followed, according to the complainant, by non-consensual sex. The jury were entitled to conclude that the reason the alleged incident in 1996 had not been put to the complainant was that counsel had no instructions in relation to that incident and that the reason for that was that the applicant had made it up in the witness box. In those circumstances I do not think that the impugned direction caused the trial to miscarry. There is no occasion to consider the proviso.
For these reasons I would dismiss the application.
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