R v Dawson, Glen Michael

[2001] NSWCCA 11

CITATION:	R v Dawson, Glen Michael [2001] NSWCCA 11 revised - 20/03/2001
FILE NUMBER(S):	CCA 60205/99
HEARING DATE(S):	5 February 2001
JUDGMENT DATE:	5 February 2001
PARTIES :	REGINA v Glen Michael DAWSON
JUDGMENT OF:	Giles JA at 1; James J at 64; Hulme J at 65

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0903
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ

COUNSEL :	G E Smith - Crown Appellant in person
SOLICITORS:	S E O'Connor - Crown
CATCHWORDS:	CONVICTION - numerous assertions of errors or miscarriages in the trial - none of substance - no question of principle.
DECISION:	Appeal in relation to conviction dismissed. The decision on the appeal in relation to sentence is reserved.

IN THE COURT OF

CRIMINAL APPEAL

CA 60205/99


GILES JA

B M JAMES J

HULME J

Monday 5 February 2001

REGINA v GLEN MICHAEL DAWSON

JUDGMENT

1    GILES JA: On 24 November 1998 the appellant was indicted before Dodd DCJ in the District Court on three charges, one of malicious damage to property and two of aggravated sexual assault. He pleaded not guilty to each charge. After a trial over the period 24 November to 2 December 1998 he was found not guilty on the charge of malicious damage to property but guilty on the charges of aggravated sexual assault. He was sentenced to a minimum term of four years imprisonment to commence on 13 November 1998 with an additional term of two years.

2    The appellant appealed against conviction and sentence. He has appeared unrepresented. His written submissions put forward fifteen grounds of appeal. Understandably enough, the grounds of appeal were not framed as might have been expected if he had been represented. They provide, however, a convenient vehicle for considering whether grounds have been shown to quash the convictions.

3    The appellant and the complainant had lived in a defacto relationship and then in a marriage for about fifteen years. They had had a son, at the time of the events the subject of the charges aged about five and a half, who suffered from severe cerebral palsy. They had separated in August 1996, but had maintained contact.

4    On the night of 6 June 1997 the appellant looked after the son at the complainant's flat while the complainant went out. In brief, the Crown case was that on the complainant's return to the flat the appellant proposed sexual intercourse, which the complainant refused, whereupon the appellant held a Stanley knife to the complainant's neck and forced her to engage first in oral intercourse and then in vaginal intercourse against her will. The defence case was that the intercourse was consensual.

5    The first ground of appeal was described as "breach of legal principle". The legal principle was said to be that persons facing charges involving evidence from police under investigation by the Police Integrity Commission were to be provided with transcripts of "what was said against them". The relevant police officer was Detective Sergeant Yeomans, and it is necessary first to understand his evidence and the part it played at the trial.

6    Detective Sergeant Yeomans conducted an ERISP interview with the appellant. Prior to the interview the appellant spoke to his solicitor on the telephone, and then told Detective Sergeant Yeomans that he had told the solicitor that he was saying nothing. Detective Sergeant Yeomans then asked whether the appellant wanted to partake in an electronically recorded interview. The appellant said that he did not and was not going to make any comment, but immediately added, "Wait there, I will", and the ERISP interview was then undertaken. After a number of questions and answers the appellant said he did not want to make any further comments and the interview was terminated.

7    The video tape of the interview, which included confirmation of the appellant's initial refusal to participate and immediate change of mind, was admitted without objection as part of the Crown case at the trial. What the appellant said in the interview was inconsistent with his evidence at the trial in two particular respects; first, in that the appellant said in the interview that he was asleep when the complainant returned to her flat on the evening in question but said in his evidence that he was awake and waiting for her, and secondly, in that the appellant said in the interview that he went to bed alone after some conversation following her return but in his evidence said that the conversation progressed to consensual intercourse.

8    Under cross-examination at the trial the appellant agreed that he had lied in the interview. He said that he agreed to partake in the interview because he felt intimidated and scared, and that he lied because of the notoriety of the police for bashing people, because he felt threatened by “their tonality, their attitudes", and because he felt harassed. He said that he decided to "give them something that they want and they'll leave me alone". The Crown relied on the lies as evidence going to the appellant's guilt as well as to his credit, and appropriate directions in that respect were given in the summing-up.

9    Detective Sergeant Yeomans gave evidence at the trial, and was cross-examined by the appellant's counsel to the effect that he had told the appellant that the appellant was going to go to gaol for twenty years, that he had acted aggressively towards the appellant, and that he had unfairly invited the appellant to partake in the interview after the appellant had made plain, by conveying what he had told his solicitor, that he was saying nothing.

10    The thrust of the appellant's written submissions in relation to this ground of appeal was that at the time of the trial Detective Sergeant Yeomans had been one of the police officers the subject of inquiry by the Police Integrity Commission in relation to the murder of Leigh Leigh, and more generally had a history of violating the rights of people held in custody to obtain his objectives. It was said, in substance, that if the legal principle had been adhered to the appellant's counsel would have had material enabling him successfully to oppose admission of the video tape of the ERISP interview, or at least enabling him to support the appellant's explanation for his participation in the interview and for his lies.

11    In his oral submissions the appellant simply asserted that Detective Sergeant Yeomans had been one of those under investigation, with allegations made against him, in relation to the Leigh Leigh inquiry. The appellant did not himself provide evidence directed to Detective Sergeant Yeomans' involvement in the Police Integrity Commission or otherwise to a history of violation of rights. The Crown provided, and the appellant then agreed should be before us as evidence to which he wished to refer, the transcript of evidence given by Detective Sergeant Yeomans on 17 November 1998 and 17 December 1998 in the Leigh Leigh inquiry conducted by the Police Integrity Commission, and of that part of the report of the Police Integrity Commission to Parliament dated October 2000 following that inquiry concerned with the police investigation of the murder of Leigh Leigh.

12    It appears from those materials that Detective Sergeant Yeomans had been a junior officer at the time of the police investigation of the murder of Leigh Leigh. He neither admitted to nor was found to have misconducted himself or to have participated in misconduct of others in that investigation. Save for the first day of the evidence of Detective Sergeant Yeomans, of course, the materials to which I have referred were not in existence to be provided to the appellant at the time of the trial, and what there might have been, if anything, relevantly available to the Police Integrity Commission as at the date of the trial is entirely speculative. I do not think that even the present existence of materials which might have provided relevant assistance to the appellant's counsel by way of challenge to Detective Sergeant Yeoman's evidence of the taking of the ERISP interview has been established, and I do not think that there was occasion for the appellant's legal advisers to be informed that Detective Sergeant Yeomans was one of those involved in the Police Integrity Commission inquiry or occasion for the provision of the transcript which was then available.

13    It may be that this ground of appeal does not depend upon the principle, assuming it exists, put forward by the appellant, and I make it plain that I am only assuming the principle for the purpose of these reasons. Decisions concerning the impact of evidence at the Police Royal Commission upon decisions reached at trials where such evidence has not been available at the trial stage have addressed whether a miscarriage of justice has been established as a result of the fresh evidence. That is perhaps the real test, a test expressed by Mason CJ in Mickelberg v The Queen (1989) 167 CLR 259 as whether 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. In my opinion, on the materials we have before us that question must be answered no and accordingly this ground of appeal fails.

14    The second ground of appeal was described as "breach of DPP policy and guidelines". It was said in the written submissions that there was breach in that the Crown failed to provide the appellant with what was described as "relevant material pertaining to the history of the officer in charge". This I take to have meant the materials relating to Detective Sergeant Yeomans. Rather extravagant assertions were made in the written submissions about police cover-up in relation to an investigation following complaint made by the appellant to the Ombudsman, all without the benefit of the evidence but, in any event, in my opinion not of relevance. This ground can go no further than the first ground of appeal, and also fails.

15    The third ground of appeal was that the trial was “unfair and unjust”. In the appellant's submissions this took up one matter.

16    On the third day of the trial something was raised in the absence of the jury recorded in the transcript only as:

"Discussion between his Honour and Crown Prosecutor regarding one of the juror's employment in a coffee shop near the court house. Discussion ensued. Crown Prosecutor wished to place this knowledge on the record."

17    The appellant's submissions translated this into what was described as the "Prosecution" knowing one of the jurors, and asserted that Dodd DCJ "refused to dismiss the jury on the grounds that it is too late in the day to empanel another jury and then who's to say it won't happen again". It was said that the jury should have been discharged because the juror "would have been subject to undue influence by the prosecution and in turn influenced other jurors", and that the juror must have been biased and would in turn influence the other jurors.

18    It does not appear that the appellant's counsel applied for discharge of the jury at the time of the discussion mentioned above: that is something which would have been recorded in the transcript. In my opinion there was no occasion to do so, and it is not surprising that there was no application. All that appears is that a juror was employed in a coffee shop near the courthouse. That does not connote even the possibility of a leaning towards the prosecution or a failure by the juror to perform his or her sworn duty, or provide any other reason for discharge of the jury. In my opinion this ground of appeal fails.

19    The fourth ground of appeal was described as "miscarriage at trial". It again was concerned with one matter.

20    Shortly after the jury retired to consider its verdict the foreman sent a note asking that a copy of the transcript be provided to assist with their deliberations. After a discussion with the Crown and counsel for the appellant, Dodd DCJ informed the jury that there was no transcript, that he had notes of the evidence, and that with the assistance of the Crown and counsel for the appellant if there was anything in particular in the evidence the jury wished to be referred to then the notes could be used. Dodd DCJ also told the jury that, as the evidence had been recorded, if the jury wished to hear any of the evidence replayed from the tapes then that could be requested.

21    The foreman sent a note asking to hear the audio tape of a specified portion of the complainant's evidence in chief. It was then found that the evidence of the complainant's evidence in chief had not been recorded, but had been taken by a court reporter. It had not been transcribed, and the court reporter who had taken it was not available.

22    After informing the Crown and counsel for the appellant of what he proposed, and without dissent from them, Dodd DCJ informed the jury of the position, and said that it was not possible for them to listen to the complainant's evidence but that he could go through the evidence again by reference to his notes. The foreman asked that that be done, and his Honour said that he would do so. He added that the Crown and counsel for the appellant "will let me know if I have missed anything or have not taken anything down correctly".

23    Over some pages in the written record his Honour did go through the specified portion of the complainant's evidence in chief. His Honour concluded by saying to the jury that what he had said to them was "not a verbatim, exactly word for word, account" but was his notes of the evidence, and said that if the jury's recollection of the evidence were different the jury should rely on their recollection. He asked the Crown and counsel for the appellant if there was any addition or correction, and counsel for the appellant added some matters in the presence of the jury. The jury then retired again.

24    The appellant submitted that the jury was deprived of a true account of the evidence in chief, and that this was unfair to him. In his oral submissions he said that the jury was left without a full knowledge of what was said by the complainant in cross-examination, and in ignorance or at least without being reminded that she was unable to substantiate her evidence (a phrase which from other things said in the course of the appeal seems to mean that she was inconsistent in her evidence). The appellant referred in his written submissions to a number of passages from the transcript which he said had not been brought out in the judge's recounting from his notes, most of the passages from the cross-examination of the complainant and therefore outside the request made by the jury.

25    The course taken by Dodd DCJ was in my view an appropriate course in the circumstances. It is unfortunate that the transcription service available in the District Court does not seem to be able to provide daily transcript or transcript sufficiently timeous to enable a request such as that made by the jury to be met, but in the circumstances the course taken by his Honour was both the best which could be done and a reasonable course. It must be remembered that in past times transcript would not have been available at all. A comparison of what his Honour said to the jury with the transcript now available shows that what was said to the jury was thorough and accurate, although of course it did not provide every word which might have been said. The appellant's counsel had the opportunity to add to or correct what his Honour said, and took advantage of that opportunity. So far as the appellant's submissions included that the jury was denied access to evidence that put at question the complainant's credibility, it was for the jury to say what evidence it wished to have access to by transcript, by recording, or (as it happened) by reminder through the judge's notes, and it did have access to that evidence. I do not think that there was a miscarriage of justice in what occurred, and this ground of appeal also fails.

26    The fifth ground of appeal was entitled "Malicious prosecution". The appellant's written submissions asserted that, for a number of reasons, he had been "maliciously prosecuted". It is not easy to make complete sense of what was put in support of this ground of appeal, but it seems that the submission was that a statement provided by the complainant to the police on the day before the trial, adding to her previous statements recollection of the appellant saying that he had forced himself upon the complainant because she rejected him, was a fabrication, and was the result of collusion on the prosecution side and part of a deliberate tactic to provide the defence with notice of that matter in the complainant's evidence at a time when the appellant could not meet it by evidence. A number of assertions of matters adverse to the credibility of the complainant and assertions that, because the police knew of those matters, the late statement was therefore a fabrication, were made, all without the benefit of evidence.

27    I do not think that there is anything in this ground of appeal. The complainant's credibility was, of course, central in the trial, and the appellant's counsel must have been prepared to deal with it in such manner as he thought appropriate. The appellant's counsel took no point of late notice of what I will call the rejection evidence, indeed he rather sought to take advantage of it by suggesting to the complainant that her evidence was incorrect because it was only recently embodied in the police statement. The rejection evidence was not evidence for which an opportunity to be prepared was significant, because it was evidence of something said by the appellant to the complainant with no-one else being present on the occasion of the alleged offences. It should be said plainly that there is not a jot of support for collusion on the prosecution side with improper motives in the presentation of the Crown case in the manner suggested. This ground of appeal fails.

28    The next ground of appeal was described as “the prosecution misleading the trial judge”. It again was concerned with one particular matter.

29    The intercourse took place in the living room of the complainant's flat. The complainant's evidence was that she did not recall seeing the Stanley knife again on the evening in question after the appellant had held it to her throat. An ambulance officer who went to the house after the police and ambulance had been called, Mr Nelson, gave evidence of seeing the complainant come upon the Stanley knife when the complainant was getting some clothes from the bedroom before being taken to hospital; in that room were other clothes, the cutting of which formed the basis of the charge of malicious damage to property.

30    At the close of the Crown case counsel for the appellant asked for a directed verdict on the charge of malicious damage to property. Dodd DCJ asked the Crown Prosecutor to indicate the evidence on which he relied for that charge, and the Crown's recitation of the evidence included this:

"There is also the evidence of the finding of the knife by - I think it was Mr Nelson, the ambulance officer, who said that he saw the knife on a jumper near the wardrobe when he was in the bedroom with [the complainant] as she was getting a change of clothes to go to the hospital."

31    This was not entirely accurate. Mr Nelson had said that the knife was on the floor, between the wardrobe and the bed. The appellant submitted that it was also inaccurate because Mr Nelson had said that the complainant found the knife, but I do not think that is inconsistent with Mr Nelson seeing the knife - the Crown Prosecutor did not in terms say anything about finding the knife.

32    I do not think that the slight inaccuracy is material. The appellant was found not guilty on the charge of malicious damage to property. The appellant submitted that the error was a larger error, and indicative of the prosecution's misleading conduct and as I understand it in that way relevant to his appeal. I do not think that there was misleading conduct, and this ground of appeal fails.

33    The next ground of appeal was described as "misleading evidence". Extracts from the transcript were set out under seventeen "points", each with a narrative and said to be "indicative of the prosecution's misleading conduct at trial". Some of the narratives were to the effect that the evidence was wrong; some asserted that the evidence was not to be found in the statements given to the police or police statements, and there were other kinds of narrative, but I do not think it necessary to describe them further. At best under this ground of appeal the appellant could be taken to be raising matters whereby the verdicts were unreasonable or could not be supported having regard to the evidence (see M v The Queen (1994)) 181 CLR 487 at 493-5, Jonesv The Queen (1997) 191 CLR 439 at 450-2 and Fleming v The Queen (1998) 197 CLR 250 at 255-7, 266-7). Having considered all that is said in these seventeen points, I do not think that they approach establishing that the verdicts were unreasonable or could not be supported having regard to the evidence.

34 The eighth ground of appeal was said to be breach of s 409B of the Crimes Act (now s 105 of the Criminal Procedure Act). It involved one question asked by the Crown.

35    After she was taken to the hospital the complainant was examined by a doctor at its sexual assault unit. The doctor gave evidence of her examination. In cross-examination she was asked whether consensual penile vaginal intercourse often produced certain symptoms. She did not agree, and offered to expand on that. The cross-examiner declined. In re-examination the doctor was asked to expand, and she did so, saying that a person who had engaged in regular sexual intercourse for a prolonged time, and certainly anyone who had given birth, would not normally suffer genital injuries from penal vaginal penetration. The Crown Prosecutor then asked, "How about a person who has been abstinent for about 17 months?" The question was objected to and was not pressed.

36 There was then a rather confused debate at the trial about the application of s 409B, treated by Dodd DCJ as an application by counsel for the appellant for discharge of the jury. Counsel for the appellant suggested that, even though the question had not been answered, because s 409B(4)(a) provided that a witness must not be asked to give evidence which was inadmissible, relevantly evidence which disclosed or implied that the complainant had or may have had sexual experience or a lack of sexual experience, asking the question was itself an irregularity in the trial. His Honour considered that the question did not fall within s 409B because it was hypothetical and did not refer to the complainant, and so did not disclose or imply anything about her sexual experience, but on the assumption that the question was prohibited by s 409B(4)(a) did not regard it as an irregularity necessitating discharge of the jury. His Honour said:

"The question when asked, in my view, would not have had any great significance so far as the jury is concerned. It was immediately objected to and immediately withdrawn. It seems to me that in any event insofar as the jury may have taken any notice of it, that can be cured by a general direction to the jury that questions asked by counsel are not in themselves evidence".

A general direction to that effect was in due course given.

37    The Crown submitted in this appeal that R v Johnson (CCA, 23 July 1990, unreported) was authority for the question being one which could properly be asked. I am not so sure of that, and am inclined to the view that R v Johnson was concerned with a different point. It is not necessary to decide, and without expressing a view on that matter in my opinion Dodd DCJ was correct in declining to discharge the jury. If there were a contravention of s 409B(4)(a), in the circumstances I consider that there was no unfairness to the appellant calling for a discharge of the jury.

38    The ninth ground of appeal was described as "unreliable evidence", although the appellant's written submissions went beyond this description in some respects.

39    First, it was said that the statements of Sergeant Minard and Constable Griffith, both police officers who attended the complainant's flat on the evening in question, were "further evidence of fabrication". As I understand it, this was because in the statements the police officers said that they spoke to the complainant but the evidence of the ambulance officers was that the police officers were "just standing around doing nothing". In fact Constable Griffith did not give evidence. Sergeant Minard's evidence included that he spoke to the complainant about her complaint, and the evidence of the ambulance officers did not negate that the police officers spoke to the complainant: indeed, the evidence of the ambulance officers could not do this because on their evidence the police officers went into the house before the ambulance officers went into it.

40    At one point in the written submissions it was said in respect of Constable Griffith's statement that Constable Griffith had personally known the complainant since the early nineties, giving the reasons for that. The Crown was content that we should assume that to be so as potential fresh evidence on the appeal, although it was made plain that the Crown did not know one way or the other whether it was so. Just what the effect of this was meant to be in the appeal, according to the appellant's submissions, was rather unclear. I do not think that it had or has any effect. I repeat that Constable Griffith did not give evidence.

41    It was said in the submissions that the evidence of the complainant was inconsistent with the evidence of the doctor at the hospital as to what the complainant told her, it seems because at one point the complainant said that the appellant asked her to take her clothes off but she told the doctor that the appellant made her take her pyjamas off. As the complainant's evidence was that a knife was being held to her throat, I am unable to see a material inconsistency.

42    The doctor took a blood sample from the complainant. She was asked from where it was taken, and she said that it would have been collected from a particular place because that was her practice but that she did not have a direct memory. The appellant's submission was that the witness was "undoubtedly unreliable" because "she could not confirm her own practice". There is nothing in either of these matters, to my mind, to indicate unreliability of evidence, but however that be it was a matter for the jury.

43    The doctor gave evidence to the effect that two marks and a small laceration on the complainant's neck were consistent with the application of a knife. Two passages from her cross-examination on that matter were set out in the written submissions, and it was said that they demonstrated that her evidence was unreliable "as she does not corroborate her own evidence". I think it was intended to suggest that there was inconsistency in the doctor's evidence. I am unable to see any inconsistency or deficiency in the passages referred to but, again, that was a matter for the jury.

44    Another passage from the doctor's evidence was set out in the appellant's written submissions, in which the doctor was asked to give the number of women she had examined where there were allegation of injury sustained by knives during sexual assault and the number of comparisons of knives to injuries she had observed, and she said that she could not state a number or an exact number. The appellant's written submissions said that this demonstrated the doctor's "inability to corroborate her own evidence". I take this to mean that, being unable to state a number or an exact number, her evidence must be regarded as unreliable. The comment is the same to the extent to which the inability might be thought to reflect upon the doctor's evidence, and for my part I find it difficult to see that it does. That was a matter for the jury.

45    Each of these matters put forward under the heading of "unreliable evidence" at best could be regarded as put forward in support of the submission that the verdicts were unreasonable or could not be supported having regard to the evidence. I do not think that they do so within the authorities to which I have referred.

46    A further matter in the appellant's written submissions in relation to this ground of appeal was the appellant's statement that he did not know a particular person, who gave evidence in the Crown case of being with the complainant at the function to which she went while the appellant minded their son and specifically that the complainant did not imbibe alcohol at the function. This person said that he had known the complainant for twenty three years. The appellant asserted in the written submissions that he had never met the person and that the complainant had not mentioned his name during their relationship, and said that the person's evidence that he had known the complainant for twenty three years was "therefore questionable". I see no way in which the appellant's assertion would be admissible as fresh evidence, and I do not regard the matter of material significance to the integrity of the verdicts in any event. In my view this ground of appeal also fails.

47    The tenth ground of appeal was that the trial judge failed to give appropriate warnings.

48    First, it was said that his Honour should have given a direction in accordance with McKinney v The Queen (1991) 191 CLR 468. The submission can not be accepted. The basis for a McKinney direction is the possibility of fabrication of a confessional statement made while in police custody. Here the equivalent to a confessional statement, although probably not accurately so described, is the ERISP interview. There was both a visual and an aural record of what the appellant said to the police, and the accuracy of the record was not challenged. Understandably therefore, counsel for the appellant did not seek the McKinney direction, and there was no occasion for one.

49    Secondly, it was said that his Honour should have warned the jury:

"... that it was dangerous and unsafe to convict on the following basis:

(1) The evidence is one persons word against the other.

(2) The complainant could not corroborate her own evidence.

(3) The complainant's seventeen month delay in producing a statement, the prosecution had stated were the basis of the prosecution case in summation".

50    It is again not easy to see what was meant by this submission. From an understanding otherwise gained from the submissions the reference to "corroboration of her own evidence" may have been intended to mean that the complainant's evidence was unreliable. The submission was really a submission that, because it was word against word and reasons were put forward for saying that there was unreliability in the complainant's evidence including the provision of the late rejection evidence, there was a need for a particular direction or particularly strong direction.

51    The jury was fully directed that they must be satisfied beyond reasonable doubt and that the complainant's evidence should be looked at carefully. Dodd DCJ said that it might be said that the decision turned on a conflict between the evidence of the prosecution witnesses, in particular the complainant, and the appellant, but that even if the jury preferred the prosecution evidence they should not convict unless satisfied beyond reasonable doubt of its truth. Corroboration was not required, and to the extent to which the Crown case involved, as it plainly did, an assessment of reliability, the jury was perfectly adequately directed. The complainant complained within hours of the incident, and the fact that the rejection evidence emerged only in the police statement the day before the trial did not call for a special direction. I do not think that there was any failure to give appropriate directions in light of the matters to which the ground of appeal drew attention.

52    The eleventh ground of appeal was described as an error of law. It was said that the complainant's statement dated 24 April 1998 "should not have been admitted as per T1 page 6" because it contained inadmissible evidence in two paragraphs. It was asserted in the written submissions that the statement was "specifically initiated for the purpose of ensuring inadmissible evidence got into the trial and became available to the jury".

53    This ground of appeal is misconceived. The complainant's statement dated 24 April 1998 was tendered in the absence of the jury and admitted without objection on the voir dire when Dodd DCJ was asked to rule on the admissible of certain evidence. His Honour ruled against the Crown. The statement was not otherwise tendered and did not become available to the jury. It was not relevantly admitted.

54    The twelfth ground of appeal was headed "Prosecution conduct". It was asserted in the written submissions that cross-examination of the appellant on his changing his place of residence from Chatswood to Blacktown was irrelevant and was only for the purpose of conveying "subliminal messages to the jury that the appellant had no right of choice to move from Chatswood to Blacktown" whereby the Prosecution "incited racism as a means of procuring a conviction". The cross-examination was relevant to an issue raised by the appellant concerning the frequency of his staying at the complainant's flat. The suggestion of other and improper purposes is entirely without substance, and this ground of appeal has no merit.

55    The next three grounds of appeal, the thirteenth, fourteenth and fifteenth grounds were also headed "Prosecution conduct".

56    As to the thirteenth ground of appeal, the appellant was cross-examined to the effect that while he had been trying to bring about a reconciliation with the complainant after their separation, and more particularly in the period leading up to June 1997, the complainant had been unreceptive to a reconciliation. The cross-examination included putting to the appellant that there had been discussions between himself and the complainant about the possibility of forming a relationship with somebody else, which he denied. It was asserted in the appellant's written submissions that the cross-examination was "perpetrated wilfully to mislead the jury", as I understand it because the complainant had not given evidence of any such discussions and possibly because, although the complainant's evidence was that she was not receptive to a reconciliation, there was evidence from an ambulance officer that she had said that they were trying to see if they could get back together. These not unusual discrepancies in evidence were present, but it was for the jury to determine so far as was necessary what might have been the position between the appellant and the complainant. I am unable to see anything improper in the cross-examination or anything unfair to the appellant.

57    As to the fourteenth ground of appeal, it was said that “the Prosecution wilfully misled the jury in respect of the appellant travelling long distances for the purposes of employment". Certain pages of the transcript were referred to, and it was said that the fact was that the appellant was "no stranger to travelling long distances for the purpose of employment", and that that was well-known to the complainant and to the police. I am quite unable to see in the pages cited anything improper in the cross-examination or materially unfair to the appellant, even assuming it to be the case that he was no stranger to travelling long distances for the purposes of employment.

58    The fifteenth ground of appeal again turned on one question. At the conclusion of the cross-examination of the appellant this appears -

"Q. The version given by [the complainant] to this Court reflects the truth of what happened that night?
A. She's a liar.

Q. Why is she lying?

OBJECTION. QUESTION DISALLOWED.

CROWN PROSECUTOR: Would your Honour hear me in the absence of the jury?

IN THE ABSENCE OF THE JURY
LEGAL ARGUMENT. QUESTION DISALLOWED."

59    It was submitted that in asking this question the prosecution had "shifted the burden of proof to the appellant, irrespective of the question being objected to and disallowed". Although not fleshed out in the appellant's submissions no doubt the line of cases involving R v Uhrig (CCA, 24 October 1996, unreported), R v Jovanovic (1997) 42 NSWLR 520 and Palmer v The Queen (1998) 193 CLR 1 was intended.

60    The Crown submitted in the appeal that the question, "Why would she lie?" was permissible because the appellant's counsel had suggested in cross-examination of the complainant that her motive for making the statement to the police containing the rejection evidence was to add a little bit more in her evidence to meet the defence she apprehended the appellant was going to mount, namely that the intercourse was consensual. I am by no means convinced that that is so. If the defence has put to a complainant a motive to lie, it is necessary to consider the facts from which the motive is to be found. If the facts are facts which the accused would know if they existed, lack of knowledge may be elicited to disprove those facts or at least tend to disprove them, but otherwise the accused's lack of knowledge of any fact from which a motive put to the complainant might be inferred is irrelevant and there arises the danger that the jury is being invited to accept the complainant's evidence unless the accused is able to provide a positive answer to the question: see Palmer v The Queen at 7 to 8. As at present advised, I consider that the question should not have been asked.

61    But the question was promptly objected to, and was disallowed. There was the direction to which I have earlier referred to the effect that questions asked by counsel are not in themselves evidence. The appellant's counsel made no application at the time, and so far as appears no further mention was made by the Crown of why the complainant would lie. No doubt the unspoken query of why the complainant would lie may have sprung naturally to the minds of the jurors, and it could be said that the question would bring it to their minds even if the question was disallowed. But the lack of any effect on the jury materially adverse to the appellant seems to me to have been reflected in the failure of counsel for the appellant to make an application, perhaps recognising that the query was something which may well have occurred to the jury in any event and should be left without content from either a satisfactory or an unsatisfactory answer and without emphasis by way of any more specific direction. As it was the question fell away without any imprimatur from the Court - indeed any imprimatur was positively rejected by the disallowance of the question and the direction. Even if there were error in the course of the trial in the asking of the question, in my view no substantial miscarriage of justice occurred.

62    It is necessary to stand back and consider all the appellant's grounds of appeal, some of which, as has been seen, took issue with the reliability of evidence led, in order to ask whether taking together all the matters to which he has referred he has made out a case that the verdicts were unreasonable or could not be supported having regard to the evidence. I do not think that he has.

63    In my view the appeal in relation to conviction should be dismissed. The decision on the appeal in relation to sentence will be reserved.

64    JAMES J: I agree with the judgment of the presiding Judge and for the reasons given by his Honour I agree that the appeal against conviction should be dismissed.

65    HULME J: I also agree with the orders proposed and with his Honour's reasons.

66    GILES JA: That will be the order, and on the appeal in relation to sentence the decision of the Court will be reserved.

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