R v Li

[2003] NSWCCA 386

Reported Decision: 140 A Crim R 288

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Peter Li [2003] NSWCCA 386
HEARING DATE(S):	01/12/03
JUDGMENT DATE:	19 December 2003
JUDGMENT OF:	Spigelman CJ at 1; Dunford J at 2; Hidden J at 77
DECISION:	Appeal allowed - convictions set aside - new trial ordered
CATCHWORDS:	Criminal Law - Summing up - directions- corroboration - onus of proof - reasonable doubt - lies - need for scrutiny of complainant's evidence - Criminal Law - Crown Prosecutor's final address - demeanour of complainant - tears - reference to - Evidence - second trial after jury in first trial discharged - witness overseas - whether "unavailable" - whether witness' evidence in previous trial admissible - depositions - Words and phrases - depositions
LEGISLATION CITED:	Crimes Act 1900 s 61J Criminal Procedure Act 1986 s 112 (now s 285) Evidence Act 1995 ss 65, 67, 192, dictionary
CASES CITED:	Conway v The Queen [2002] HCA 2, 209 CLR 203 Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304 Green v The Queen (1971) 126 CLR 28 Liberato v The Queen (1985) 159 CLR 507 R v Apostilides (1984) 154 CLR 563 R v GED [2003] NSWCCA 296 R v Hall [1973] 1 QB 496 R v Lockley and Corah [1995] 2 Cr App R 554 R v Murray (1987) 11 NSWLR 12 R v Reeves (1992) 29 NSWLR 109 R v Soma [2003] HCA 13, 77 ALJR 849 R v Thompson [1982] 1 QB 647, 74 Cr App R 315 R v V (1998) 100 A Crim R 488 R v Zorad (1990) 19 NSWLR 91 Richardson v The Queen (1974) 131 CLR 116 Stanoevski v The Queen [2001] HCA 4, 202 CLR 115 Zoneff v The Queen [2000] HCA 28, 200 CLR 234
PARTIES :	Regina v Peter Li
FILE NUMBER(S):	CCA 60282/03
COUNSEL:	P Ingram (Crown) T Game SC (Appellant)
SOLICITORS:	SE O'Connor (Crown) Legal Aid Commission of New South Wales (Appellant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0243
LOWER COURT JUDICIAL OFFICER :	Finnane DCJ

- 21 -

060282/03

SPIGELMAN CJ
DUNFORD J
HIDDEN J

THURSDAY 18 DECEMBER 2003

R v PETER LI

Judgment

1 SPIGELMAN CJ: I agree with Dunford J.

2 DUNFORD J: This was an appeal by Peter Li against his conviction on three counts of sexual intercourse without consent in circumstances of aggravation contrary to s 61J Crimes Act 1900 following trial by a jury before his Honour Judge Finnane QC in the District Court at Sydney. He also sought leave to appeal against the severity of the sentences imposed on him following such convictions. On 1 December last the Court upheld his appeal, set aside the convictions and ordered a new trial. I now state my reasons for concurring in such order.

3 The Crown case was that the complainant had arrived in Australia in October 2000 and become a permanent resident in September 2001. On 17 November 2001 at the invitation of her landlord, Mr Felice, she went with him to dinner at a restaurant in Chinatown in the City where she met the appellant. After dinner, the appellant came and sat next to the complainant and they spent some time talking and dancing together and the complainant discovered that the other people at the table were there for a singles party. The appellant told the complainant he was good with computers, and this interested the complainant because she wanted to study accounting and book-keeping and he said he could help her if she wanted to buy a computer. For this purpose, she gave him her mobile telephone number.

4 The following day, the appellant called the complainant and invited her to have lunch and perhaps talk about computers. He picked her up at Ashfield railway station and they went to what turned out to be his house in West Pennant Hills where he told her he needed to get some money and he asked her inside.

5 Once inside he asked her to dance, she said she did not want to dance so he threw her onto the bed and a struggle ensured. He put some clothes in her mouth and said he would kill her if she moved. He then threatened her with a knife and removed her clothes notwithstanding that she told him that she was having her period. Following that, he sexually assaulted her three times including two instances of penile/vaginal intercourse, after which he ejaculated on her stomach. After wiping herself, he allowed her to get up but made her have a shower first using soap and disinfectant.

6 They then dressed and he suggested they should find some place to eat and drink “to celebrate this date”. She said that she was scared and wanted to get out of the house, so she agreed. She started to run, but when she got to the footpath, he grabbed her arm and told her to get into his van. When the van stopped at a red traffic light near Parramatta railway station, she opened the door and tried to jump out, he grabbed her back and put two $50 notes in her bag. She threw the money back at him, got out of the van and ran to the Parramatta station.

7 She then returned home to Croydon Park and complained to her landlord, Mr Felice, who took her to the Ashfield Police Station, and she also left a text message for her boyfriend on his mobile phone which read “I am going to the Police Station. Someone raped me. I need your help”. She went to the Police Station and thence to the Royal Prince Alfred Hospital where she was seen by Dr Hui to whom she gave a history consistent with her account. An examination was carried out and various swabs were taken. The doctor did not notice any abnormality in the complainant’s physical appearance, and there was no history of any external physical injury.

8 Mr Felice was overseas so his evidence from a previous trial was read, and the reading of his evidence gave rise to the first ground of appeal. In such evidence, he told of taking the complainant to dinner the previous evening and observing the appellant talking with her and he saw them exchanging telephone numbers. The following day he was at his unit when she returned, looking stressed, and complained that that appellant had raped her, threatened her with a knife, and tried to cover her mouth. He accompanied her to the police station but left when her boyfriend arrived. Dr Hui examined the complainant at 12.15am on 19 November 2001. She took a history, performed a medical and personal examination, and took swabs from her abdomen, vulva, low and high vagina.

9 Ms Burger, a forensic biologist examined the swabs and the complainant’s clothing. She detected semen on the high vaginal, low vaginal and vulval smears and also on the wet embilious adominal skin smears. Semen was also detected on the complainant’s underpants and sanitary pad. She also tested the items for DNA and found that the appellant had the same DNA profile as that recovered from the various swabs including high vaginal swab.

10 The complainant’s boyfriend, Mr Feehely, gave evidence of receiving her text message and later attending Ashfield Police Station where he saw the complainant in a distressed state with her hair messed up, her clothes distorted, face marked and one sleeve of her sweater stretched.

11 Constables Smith and Wilson saw the complainant at Ashfield Police Station on 18 November 2001 when she appeared distressed and upset, they also noticed a small cut on her lower lip and Constable Wilson also saw some scratches on her lower right arm.

12 The officer in charge, Detective McCarthy, gave evidence of a search of the appellant’s house pursuant to a warrant on 22 November, when a packet of prescription medicine (Combivir) in the name of Ziaoping Li was located which, from the guidebook included with it, appeared to be for the treatment of HIV. A box of condoms and a number of empty condom packets were also found. Documents were obtained from Concord Hospital (Ex C 27), which indicated that the appellant had attended there and given a history of vaginal/penile intercourse with another women who had told him after they had sex (apparently as a joke) that she had AIDS.

13 On 29 November, the appellant attended Eastwood Police Station where he was arrested, warned and then took part in video recorded interview, which was tendered in the Crown case. In that interview, the appellant stated that the complainant’s story was false, that he met her at a singles party, that she was taking the initiative. They danced together, she came with him when he sang karaoke and said she would meet him the following day and go to his house. He said she suggested having sex together.

14 The following day, after she called him on his mobile phone, he picked her up at Ashfield station and took her to his house. When they got there, she asked how much it was worth, they played the piano, danced and kissed. He said she took her clothes off but he was scared to do so because his penis was very small, she laughed at him and they kissed each other’s private parts, it was peaceful, there was no force and no knife. He said “no” to the suggestion that they had sex together, but claimed they just kissed each other. They had a shower, put their clothes on and he suggested they go to a nice restaurant for dinner.

15 In the car, she said that now he was her boyfriend, he could support her for life and give her $200 a week. He got into an argument as to why he should give her money when she was living with another man, but told her that if she lived with him (the appellant), he was prepared to go to the Marriage Registrar the following day, that he was seriously looking for one girl to marry and he was not paying for her. He said she got out of the car at the traffic lights at Parramatta, he gave her $100, but she asked for more, and threw the money on the street.

16 He said that he had back pain, that he was impotent and could not get an erection unless the girl performed oral sex with him, but it still took a long time. He agreed he did ejaculate onto the complainant’s stomach but denied having sexual intercourse with her and denied the use of any force.

17 He denied the complainant’s version when it was put to him and denied other sexual acts; in particular, he denied penetrating her vagina. He said that he had not had sex with anyone in Australia and this was the first time a woman had performed oral sex on him. He later agreed that he had had sex other than with the complainant and had sought medication at Concord Hospital in case he had HIV. He said that the allegations were false and the complainant was after his money. In answer to further questioning, he denied any sexual acts with the complainant apart from kissing her on the vagina and the lips, and in particular, he denied that he had penetrated her vagina.

18 The appellant did not give evidence but two witnesses were called in his case, Robert Yi gave evidence of the interaction of the appellant and complainant at the restaurant the previous evening and Alex Lysenko, a neighbour of the appellant who said that on the day in question, he saw the appellant walking down his driveway with an Asian woman, and they were walking like two lovebirds with their arms around each other. Sometime later, he saw them leaving the premises after kissing each other on the lips.

19 The first Ground of appeal was as follows:

“The trial judge erred in admitting evidence of Mr Felice (sic) given at the previous trial”.

20 The appellant was first arraigned on these charges on 10 July 2002 and his trial continued until 18 July 2002 when Defence counsel in that trial withdrew. Fresh Counsel and Solicitor appeared in the matter on Friday 19 July 2002 and on Monday 23 July 2002 the jury in the first trial was discharged.

21 Prior to that jury being discharged, the learned trial Judge enquired of the Crown Prosecutor what the situation would be so far as Crown witnesses being available if the jury was discharged and the trial had to start again. The Crown Prosecutor said, “One of the Crown witnesses, Mr Felice, is leaving the country today. He has a one-year open ticket to Italy where his mother is ill, but I understand that there is a chance he could be back after about three months. He is a critical complaint witness, of course…”. His Honour said, “Yes, so you’d be asking for it to go over to enable Mr Felice to be here?” to which the Crown Prosecutor replied “yes”.

22 His Honour then indicated that the Crown could rely on his evidence by reading out his evidence in the first trial, but the new Defence Counsel, who had just come into the matter informed Judge that his instructions would require that Mr Felice be further cross-examined, to which the Crown Prosecutor indicated that if the matter was adjourned it would have to be for at least three months (to allow for the anticipated return of Mr Felice).

23 Shortly thereafter, the learned trial Judge asked Defence Counsel, “Why should I be particularly worried about your lack of being able to cross-examine Mr Felice? Why should I take that into account in any way whatever? Why shouldn’t I just order a new trial and start it tomorrow morning or today?…” Defence Counsel’s response was that if the trial was so commenced, the defence objection to the evidence of Mr Felice would be pressed at the appropriate time and the usual rules as to such evidence would apply.

24 On 24 July 2002 the second trial commenced and prior to the jury being empanelled, the Judge considered the Crown’s application that the evidence of Mr Felice given in the first trial be read in the second trial.

25 The Crown Prosecutor indicated that she relied on the provisions of the Evidence Act1995 s 65 and the Criminal Procedure Act 1986 s 112 (now s 285) as rendering the transcript of Mr Felice’s evidence in the previous trial admissible, or alternatively she relied on s 116 of the latter Act (now s 289) in relation to the written statement by the witness tendered in the committal proceedings, but she said her application was primarily under s 112.

26 Defence Counsel submitted that the Crown had not established that the witness was “unavailable” for the purposes of s 65 as he had only recently gone overseas and would be returning, so he was not “unavailable” for a particularly long time.

27 Defence Counsel initially conceded that s 112 would permit the tender of Mr Felice’s evidence in the first trial, but asked that it be excluded on the ground of unfair prejudice. On his instructions there were matters of substance to be put to the witness that had not been put to him in the first trial, viz. an allegation that he was complicit with the complainant in the fabrication of evidence against the appellant. No submission was made that the transcript of the witness’ evidence in the first trial was not a “deposition” within the terms of s 112.

28 In his judgment, his Honour held that the evidence of the witness, Mr Felice, given in the first trial was admissible in the second trial pursuant to s 112 of the Criminal Procedure Act 1986, and declined to exclude it on the ground of unfair prejudice, holding that the allegation of complicity in the fabrication of false evidence could have been put to the witness in the first trial. No reference was made in the judgment to s 65.

29 Section 112 (now s 285)) provides that a “deposition” may be admitted as evidence to the prosecution for the trial of the accused person on proof that, inter alia:

(1) The deponent is absent from Australia,

(2) The deposition was recorded by or in the presence of the Justice before whom it was taken and in the presence of the accused, or during any period when the accused having been excused under s 41(1 B) of the Justices Act 1902 was absent, and

(3) The accused or counsel had full opportunity to cross-examine the witness or, having been excused, was absent when the deposition was taken and was unrepresented.

30 There are other requirements not relevant for present purposes, but the whole context of the section and the other sections in Division 5 of Part 4 of the Act (ss 111 – 116 now ss 284 – 289) make it clear that “deposition” refers to a record of evidence given before justices in committal proceedings or before a coroner, and the word does not include a transcript of evidence given a previous trial. It follows that the evidence in the previous trial was not admissible, except by consent and, although Defence Counsel did not object that such evidence was outside the terms of s 116, he did object to its admission on discretionary grounds on account of his inability to cross-examine the witness.

31 Section 65 of the Evidence Act 1995 so far as material provides as follows:

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give about an asserted fact.

…

(3) The hearsay rule does not apply to a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied:

(a) cross examined the person who made the representation about it or
(b) had a reasonable opportunity to cross examine the person who made the representation about it.

32 Section 67 requires notice to be given of an intention to adduce such evidence but the court may, on application of a party, allow the evidence to be admitted despite the party’s failure to give notice, subject to such conditions as the Court thinks fit.

33 Clause 4 (1) (e) of Part 2 of the Dictionary to the Act provides that a person is taken not to be available to give evidence if “all reasonable steps have been taken by the party seeking to prove the person is not available, to find the person or to secure his attendance, but without success”.

34 Mr Felice had been excused on completing his evidence on the first trial on 16 July and was apparently due to leave the country on the day the first jury was discharged (23 July), which was the day before the second trial commenced and the application to tender his earlier evidence was considered (24 July). It is difficult to see what reasonable steps could at the relevant time have been taken to secure his attendance. But in the absence of the required notice having been given under s 67, leave to adduce the evidence was required, and this required consideration of the matters set out in s 192 (2) of the Act: Stanoevski v The Queen [2001] HCA 4, 202 CLR 115. His Honour did not direct his attention to these matters which included:

(b) The extent to which to allow the evidence would be unfair to a party,
(c) The importance to the evidence and
(e) The power of the Court to adjourn the hearing or make another order or give directions in relation to the evidence.

35 The evidence was clearly important to the Crown case being primary evidence of prompt complaint on the part of the complainant, but the defence claimed its admission would be unfair in the circumstances, and in any event, the second trial, which at that stage had not started, could have been adjourned for three months, as the Crown requested, or other appropriate period, to enable the witness to return to Australia. Accordingly it is at least difficult to see how the evidence could have been admitted pursuant to s 65.

36 If this were the only successful ground of appeal it may have been necessary to consider whether the appellant was any worse off having the transcript of the witness’ evidence in the first trial admitted rather than his deposition and whether there was really any potentially unfair prejudice to the appellant in admitting the evidence, but in the light of my conclusions in respect of some of the other grounds, I find it unnecessary to consider this aspect any further.

37 Before leaving this ground I should refer to R v Thompson [1982] 1 QB 647, 74 Cr App R 315, referred in Watson, Blackmore and Hosking: Criminal Law (NSW) at para [2.39460] and the earlier decision in R v Hall [1973] 1 QB 496, both decisions of the English Court of Appeal. In those cases it was held that, apart from the relevant legislation, Criminal Justice Act 1925 s 13(3) which was in similar terms to our s 112 and referred to “depositions”, a transcript of evidence given in a previous trial was admissible at common law in a subsequent trial if the witness was too ill to attend the subsequent trial (Thompson) or deceased (Hall); but a different approach appears to have been taken subsequently in the light of more recent legislation: R v Lockley and Corah [1995] 2 Cr App R 554. See Cross on Evidence, Aust ed at para [33795]. In a practical sense there is much to be said for the English approach and the matter might well be considered by the legislature because, in many cases, the evidence in chief and the cross-examination of the witness at the earlier trial, by which time the issues are better defined, may be more relevant than the evidence in chief and cross-examination at committal. However for the reasons given above, I am not satisfied that the transcript of evidence in an earlier trial constitutes a “deposition” within s 112 and consider the English cases should not be followed in this State.

38 Grounds 2 and 3 related to matters arising out of the Crown Prosecutor’s final address and were as follows:

Ground 2: The trial miscarried by reason of the failure of the trial judge to direct or warn the jury adequately in relation to a submission made by the prosecutor that the complainant’s “tears in court” were a genuine sign that she did not consent to sexual intercourse
Ground 3: The trial miscarried by reason of a submission by the prosecutor to the effect that the jury could infer consistency in the complainant’s account to police “because she was not cross-examined about any inconsistency”

39 In the course of her address to the jury the prosecutor said:

“At this point in her evidence you may recall that tears started silently falling from Jenny’s eyes in this Court. Now it was not at all theatrical or staged, and please, you are not to reach your verdict based on emotion or purely on sympathy, but you can rationally consider that those tears in this Court as Jenny was asked to recall what happened are a genuine sign that she did not consent to that sexual intercourse”.

40 Defence counsel responded to this submission as follows:

“But the fact that she says she was assaulted and did not consent to sexual activity I say is absolute nonsense. And the fact that a person may cry or not cry is of no consequence, in my submission to you” ( my italics).

41 It was objected on behalf of the appellant that the Crown’s was an unusual submission and that normally a submission about demeanour should be couched in more general terms, that the prosecutor was asking the jury to reason to guilt for a number of reasons including the fact that the witness cried at the relevant part of her testimony, that the crying was being relied on as “real evidence”, and that a warning should have been given that it may be unreliable under s 165 of the Evidence Act.

42 I do not agree. Although warnings have been given from time to time about excessive reliance by tribunals of fact on the demeanour of witnesses, the common law has long recognised the relevance of demeanour in the witness box in assessing the credibility of witnesses: Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304 at 313 C-D. That case concerned observations by the trial judge (in a trial without a jury) of the plaintiff outside the witness box and the necessity for the judge to give notice to the parties of his observations, but as pointed out by Kirby P in the passage indicated, there is no such obligation in respect of observations made of the witness when giving evidence because all parties are necessarily on notice of what they can see for themselves.

43 A party addressing a tribunal of fact on the credibility of a witness is not only entitled to make general submissions in this regard but may descend to particulars. If the witness has fidgeted, displaying obvious discomfort when giving evidence, has laughed, or been slow in giving answers, these matters may be commented on, and I see no reason why crying when giving sensitive evidence may not similarly be relied on.

44 It is of course open to the opponent to suggest that they are not genuine tears, or that the witness is crying because he or she is telling lies and finding it difficult to do so, but I can see no objection to the prosecutor asking the jury to take the crying of the complainant into account when assessing her credibility in saying she had not consented to what occurred. In this case the Defence Counsel in his address responded to the submission in the form I have indicated. I suspect that he did not elaborate for fear that to do so, in the atmosphere of the trial, would only have reminded the jury of her tears and thus aggravated the situation from his client’s point of view.

45 As to ground 3, the actual passage from the Crown Prosecutor’s address was as follows: (T429).

“Now once again Jenny’s account to the police was taken on the 19 November last year, the day after his happened. You can assume that her account to the police was consistent with the evidence she has given in court because she was not cross-examined about any inconsistency”.

46 And later she said:

“But the law also provides that you can use this consistency, and the immediate reporting of it, when assessing the truth of what happened. That is, what she told Mr Felice, her boyfriend, the police and Dr Hui is evidence that what she said happened, did actually happen. And the law provides that”

47 There was evidence in the trial of what the complainant had said to Mr Felice, to her boyfriend and to Dr Hui, but there was no direct evidence of what she had told police as her statement to police had not been tendered, and could not have been unless her evidence was inconsistent with it and the complainant denied such inconsistency (s 106). The evidence of what she told the other persons to whom she made complaint was all consistent with her evidence.

48 In his written submissions, the Crown Prosecutor concedes that the submission ought not to have been made and that the trial judge should have cautioned the jury in drawing such an inference on that basis, because there may have been any number of potential reasons for the absence of cross-examination, including mere oversight by Defence Counsel. However, as he further points out, the submission was otiose since there was a substantial body of evidence before the jury which disclosed that the complainant had made substantially consistent complaints to other witnesses (Mr Felice, her boyfriend and Dr Hui).

49 Of course, Defence Counsel had the opportunity to respond to this submission in his address but, not surprisingly, did not do so, and he made no application to the trial judge for any direction to the jury in relation to the matter. I would not uphold the appeal on this ground.

50 This case can be distinguished in this regard from R v GED [2003] NSWCCA 296 when the complaint concerned what was said by the judge in his summing up where he referred to inconsistencies in the evidence of the complainant and a witness on the one hand, and a recorded interview by the accused on the other hand, and where the failure to cross-examine the complainant and the witness on the inconsistencies was used to found an argument to the effect that the accused had lied in his recorded interview on account of a consciousness of guilt.

51 Grounds 4, 5, 6 related to the directions given by the trial judge in his summing up. Ground 4 was as follows:

(a) The trial judge failed to direct the jury adequately, and erred in his directions, in relation to lies, having regard in particular to the way in which the prosecutor addressed on the topic in the course of her address to the jury.
(b) The trial judge erred in admitting the record of interview. Alternatively, the trial judge did not adequately direct the jury on how it should use or assess the evidence found in the record of interview.

(c) The trial judge erred in admitting evidence about AIDS or HIV medicine and notes from Concord Hospital. Alternatively, the trial judge failed to give the jury adequate directions and warnings about this material.

52 In her address to the jury, the Crown Prosecutor referred to the Concord Hospital notes and what she alleged were lies told by the appellant in his recorded interview where he said he was physically incapable of penile intercourse, whereas what he had told the doctors at Concord Hospital indicated otherwise. It was submitted that the submissions put to the jury involved an unmistakable reliance on consciousness of guilt reasoning. I do not see them as carrying such a suggestion and do not believe the jury would have so understood them.

53 In his Written Directions, his Honour referred to “lies” under the heading “Credibility” and there is nothing in those Written Directions suggesting “consciousness of guilt” type reasoning.

54 His Honour’s oral directions on this subject were as follows:

“Now, members of the jury, I point out on pages 5 and 6, under the heading “Credibility”, that people have many reasons for telling lies. Sometimes, it has to be said, people will, when confronted with possible criminal charges, tell lies. They try to distance themselves from it. It may be that they are not in fact guilty, and they give a version of events which is very incriminating, and it incriminates them because they are trying to distance themselves from events. It could be panic that causes people to tell lies. There could be other reasons to tell lies. But if a person tells a lie, and you find it to be a lie, that must cause you to consider anxiously any other evidence given by him. And in this case, if he tell lies in his interview, you must give anxious consideration to the question, when he says she consented is that true or is it not?
Well, if you came to the conclusion he was lying about the fact that he did not ever get his penis in, for example, you might ask the question what does that say about his evidence in this document that she was consenting to whatever occurred; and not only consenting but indeed being the moving party?

55 These directions appear to be clearly directed to lies as going to credibility, although the reference to persons “trying to distance themselves from it” is confusing and tends to blur the distinction between lies as evidencing a consciousness of guilt and lies as going to credibility; but his Honour went on to put that remark in the context of a person who is not guilty of an offence incriminating himself by telling lies, and it was apparently intended as a warning to the jury not to infer guilt merely because they were satisfied that the appellant had told lies.

56 The suggestion that if they found that the appellant had told lies, that “must” cause them to consider anxiously any other evidence given by him, and they “must” give anxious consideration to whether it was true or not when he says that the complainant consented is unfortunate and “may” would have been more appropriate in both instances. For a time I was concerned that the use of the word “must” indicated that they were required to reason in a particular way, but on reflection I consider that in the context, his Honour was merely directing them to take such lies as they found into account, but not directing them to reach any particular conclusion in consequence thereof. Otherwise, the direction is unobjectionable as a direction on lies going as to credibility, although it would have been preferable to have warned the jury against employing “consciousness of guilt” reasoning: Zoneff v The Queen [2000] HCA 28, 200 CLR 234 at [24].

57 As to (b), the recorded interview was clearly admissible as part of the investigation, subject to editing of any parts which were irrelevant or unfairly prejudicial to the accused. It contained a number of admissions, including the presence of the complainant with the appellant at his house on the day in question and some sexual activity. It was the appellant’s version of the facts as given to the police and, as the appellant subsequently did not give evidence, it was the only material from him before the jury containing his assertion that the claimant consented to such sexual activity as took place between them and that she was the “moving party”.

58 It also claimed what the Crown asserted were lies e.g. that he was incapable of penile intercourse, but such alleged lies were relied on not as showing a consciousness of guilt (although it would appear they could have been), but as reflecting on his credibility when he asserted that the complainant consented to what occurred.

59 Consistent with what was said in Richardson v The Queen (1974) 131 CLR 116 and R v Apostilides (1984) 154 CLR 563 the prosecutor’s obligation to put the case fairly would, on its face, require the Crown to tender the recorded interview in its case, unless there were some positive reason for not doing so: R v Soma [2003] HCA 13, 77 ALJR 849 at [31]. Furthermore, the Crown could not anticipate what other matters might be raised in the Defence case (if any) and could not split its case, so had to tender all its relevant and available evidence in its case.

60 The recorded interview was substantially edited and it is now claimed that as edited it was a very unsatisfactory document, but that complaint does not appear to have been made at the trial. However, notwithstanding that the recorded interview was admissible, the Crown in his Written Submissions concedes that the transcript of the recorded interview (Ex C26) is in many respects a confusing document and that the final edited form of the interview which went to the jury may not have fairly conveyed the full import of the appellant’s representations on subjects which the Crown sought to rely on as lies.

61 As to (c), the appellant submitted that evidence relating to the HIV medicine found at his premises and the history he gave the doctor at Concord Hospital was not admissible as such evidence only went to credibility as showing he had lied in his recorded interview; and that it was accordingly inadmissible as s 102 Evidence Act renders inadmissible evidence which relates only to credibility (subject to the specified exceptions). However this evidence was not relevant only to credibility, but was admissible to show that the appellant was capable of doing what the complainant said he had done. This was made clear by his Honour in the last section (pp 8-9) of his written instructions (excluding the last 3 lines) and at T 407 his Honour made it clear that he regarded the evidence as gong not only to credibility, otherwise he would not have admitted it.

62 Accordingly although the direction on lies could have been better expressed and, like the Crown Prosecutor I had some uneasiness concerning the final form of the recorded interview, I was not satisfied that any of the elements of ground 4 were established.

Ground 5: The trial judge erred in his directions on corroboration and assessment of the complainant’s evidence.

63 In his Written Directions, his Honour said:

“The complainant’s evidence is the most critical evidence in the trial. However, there is evidence which corroborates her evidence, e.g. the evidence of Dr Hui and Ms Burger that there was semen in her high vagina which could only have got there through penile intercourse and there was DNA evidence showing that the semen found in her vagina has DNA which matches the accused’s DNA in nine respects. Her evidence however is of the utmost importance. If you decided that her evidence was not credible, it is difficult to see how the accused could be convicted of any offence”.

64 In his oral directions, his Honour said:

“If you come to page 7, the credibility of the complainant. The complainant’s evidence is the most critical evidence in the trial. There is evidence which corroborates her evidence. Now, corroborative evidence, members of the jury, is evidence independent of the complainant which tends to connect the accused to a crime and which confirms in some material particular, not only that a crime has been committed, but that the accused committed it. (His Honour then went on to refer to the DNA evidence and the evidence of Dr Hui and Ms Burger). Then clearly there is independent evidence that corroborates the story that there was penile intercourse”.

65 There are a number of problems about these directions. Firstly, by the time his Honour came to sum up, the issue in the trial was not whether penile intercourse had taken place, but whether the complainant had consented. On this issue, it was her word against his and it was therefore necessary for the jury to scrutinise her evidence with great care before arriving at a verdict of guilty, and a direction in accordance with that suggested in R v Murray (1987) 11 NSWLR 12 was necessary; see also R v V (1998) 100 A Crim R 488 at 497. His Honour indicated that it was not appropriate to give the direction because the complainant’s evidence was “supported and corroborated” by the forensic evidence that showed penile intercourse had taken place; but as I say, that was no longer the issue, which was whether she had consented; and it was her evidence on this issue that needed to be scrutinised with great care. He did tell them that they had to be satisfied that her evidence was credible but then, instead of warning them that it was the only evidence on the issue of consent and that they therefore needed to scrutinise her evidence with great care, he went on to tell them that her evidence was corroborated because there was other evidence that penile intercourse had taken place.

66 Secondly, there is no longer a requirement to give a direction in such cases that it is dangerous to convict in the absence of corroboration (Evidence Act s 160) and in my view it is undesirable to talk in terms of “corroboration”, but if the judge does introduce the subject in those terms, it is necessary that he or she give proper directions in relation to it: Conway v The Queen [2002] HCA 2, 209 CLR 203 at [62]. This was not done. His Honour should have drawn the jury’s attention to those matters which could amount to corroboration, leaving it for them to decide whether they were satisfied that those matters did in fact corroborate the complainant’s evidence: R v Zorad (1990) 19 NSWLR 91 at 103.

67 Thirdly, having raised the subject of corroboration, his Honour did not express it in terms of a warning to the jury that it would be dangerous to convict on the uncorroborated evidence of the complainant, but expressed the view, in strong terms, that her evidence (on the issue of penile intercourse) was strongly corroborated in terms which lent support to the Crown case.

68 His Honour’s directions on assessing the credibility of the complainant and on corroboration therefore contained serious omissions and misdirections, and ground 5 was made out.

Ground 6: The trial judge erred in his directions on the burden and standard of proof and in particular in its application to the evidence of Mr Lysenko.

69 The trial judge gave appropriate directions on the burden of proof in the Written Directions, and early in his summing up, quite properly said:

“The question in the end is has the Crown proved its case to your satisfaction beyond reasonable doubt?“

70 However, a short time later, he said:

“The Crown must prove its case beyond reasonable doubt, I’ve said that to you and I will say it again. If there is a doubt in your mind, and it’s a reasonable one, you should give the benefit of it to the accused and you should find him not guilty ” (my italics).

71 Such direction is incorrect, inappropriate and should not be given in those terms: Green v The Queen (1971) 126 CLR 28 at 32-33 and also R v Reeves (1992) 29 NSWLR 109 at 116-117. His Honour repeated the error at SU 12-13 in the context of lies where he said:

”Now, If you have a doubt about which of these cases is correct and that’s a doubt based on reason as I have assumed it would be, then you would have to acquit the accused. If you feel that you just cannot be sure whether what the complainant says is true, or what he says is true, then you must acquit him in this particular case”.

72 Not only was it there in his last passage a reference to “a doubt based on reason” but in two instances, the judge has proposed to the jury the question which of the two cases is correct, what the complainant says or what the appellant says. This was also a material misdirection. The issue can never be which of the cases is correct or who of the complainant and the accused is telling the truth: Liberato v The Queen (1985) 159 CLR 507 at 515. They should have been directed the test was whether taking into account the whole of the evidence, including what had been said by the appellant in his recorded interview, and the witnesses called in his case, they were satisfied beyond reasonable doubt of the truth of the complainant’s evidence.

73 The issue was again raised in the context of the evidence of Mr Lysenko when his Honour said:

“If you accept the neighbour’s evidence, then you would have to have a reasonable doubt about the accused”.

74 It was not necessary for there to be an acceptance of the neighbour’s evidence; if his evidence raised a reasonable possibly that what the appellant said on the issue of consent was correct, the appellant was entitled to be acquitted.

75 Other passages were referred in the written submissions relating to what are claimed to be erroneous directions on the onus of proof. It is not necessary to consider them in detail, as the matters I have referred to were each significant and fundamental.

76 Therefore, leaving aside ground 1, I was not persuaded that grounds 2, 3 or 4 (a) or (c) were established although there seemed to be some doubt about the form in which the recorded interview ultimately went to the jury (ground 4 (b)). However, in relation to grounds 5 and 6, I was satisfied that the directions were erroneous and the trial miscarried. No re-directions were sought at the close of the summing up and accordingly Rule 4 applies, but having regard to the fundamental nature of the misdirections, I could not be satisfied that the appellant had a fair trial according to law. In those circumstances it became unnecessary to consider ground 7 (that the trial miscarried by reason of a fact that the manager of the dating agency was not called), and the application for leave to appeal against sentence became irrelevant.

77 HIDDEN J: I agree with Dunford J.

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Last Modified: 12/23/2003