R v Mustafay

[1992] QCA 18

IN THE COURT OF APPEAL	[1992] QCA 018
SUPREME COURT OF QUEENSLAND	No. 258 of 1991

T H E Q U E E N

v.

MUSTAFAY

The President
Mr Justice Davies

Mr Justice Byrne

Judgment delivered on 6th March 1992.

Reasons given by Fitzgerald P and Davies J.A. jointly and by

Byrne J. separately.

APPEAL ALLOWED

CONVICTION QUASHED
NEW TRIAL ORDERED

JUDGMENT - FITZGERALD P. and DAVIES J.A.

Delivered the 6th day of March 1992

MINUTE OF ORDER:Appeal allowed, conviction quashed and new trial

ordered.

CATCHWORDS:CRIMINAL LAW - SUMMING-UP - Appellant convicted of rape - Trial judge directed jury that it could take into account the accused's interest into the outcome when weighing credibility of his evidence - whether conviction ought be quashed.

Counsel:Mr S. Keim for the Appellant

Mr P. Rutledge for the Crown

Solicitors:	Legal Aid Office for the Appellant
Director of Prosecutions for the Crown

Hearing date: 7 February, 1992

JUDGMENT - FITZGERALD P. and DAVIES J.A.

Delivered the 6th day of March 1992

The appellant has appealed against his conviction for rape and deprivation of liberty and has applied for leave to appeal against his sentence of seven years imprisonment for rape. The events took place in the appellant's room at a Gold Coast hotel after the complainant had accompanied the appellant to his room between 4.00 and 5.00 a.m. after drinking with the appellant at

a Bar in the hotel. The appellant and the complainant had met
for the first time on the night of the offence.

Both the complainant and the appellant gave evidence. On the complainant's account, she expected to join a party in the appellant's room and attempted to depart when she had found that only the appellant and herself were present. The veracity of the complainant's story was a matter for the jury, who might have accepted that she believed the appellant had guests who

were enjoying his hospitality in his room at that hour while he was drinking with the complainant in the Bar downstairs. The appellant's version of events was that the complainant came to his room to engage in sexual activity for money, that he and the

complainant had sexual intercourse and that there was then a
dispute about the price.

There was a stark contest of credibility between the complainant and the appellant. The resolution of that conflict in favour of the appellant would not have been assisted by

aspects of his evidence which lacked cogency and evidence that he engaged in a course of dishonest conduct involving the use of

a credit card during the period when he stayed at the hotel.
The jury's task was also complicated by an attack which was
launched in cross-examination upon the complainant's character

and prior activities and the trial judge's consequential exercise of his discretion under sub-s. 15(2) of the Evidence Act 1977 to allow the appellant to be cross-examined as to his

previous convictions. Issues were raised which arguably went

also to the substance of the appellant's defence that sexual activity was consensual, for money. The permitted interrogation of the appellant might, in the minds of the jury, have seemed to involve not only his character and credibility but also a

likelihood, based on his prior conduct, that he had committed

the offence charged.

In the circumstances, the exercise of the discretion under sub-s. 15(2) created a range of difficulties which necessitated the most careful control in the further conduct of the trial.

These difficulties, as they fall for consideration in this

Court, are increased by the circumstances that the trial judge gave no reasons for exercising his discretion to allow the

appellant to be cross-examined as to his prior criminal history and, in his summing up, did not clearly advert to the appellant's reliance upon the complainant's prior activities as a matter to be considered in connection not only with her credibility but also the appellant's substantive defence of consensual sexual conduct.

It is unnecessary to pursue these matters, nor is it necessary to decide whether, in every case in which "an accused person gives evidence the trial judge may not direct the jury that in assessing his or her evidence, they might take account

of his or her interest in the outcome of the proceedings" as de Jersey J. thought in R. v. Wilson (Court of Criminal Appeal, 11

December 1991 unreported); see to the contrary Macrossan CJ in

the same case.

In this case, the accused's interest in having his version accepted was singled out by the trial judge, ignoring the interest which the complainant obviously had in denying that she

was operating as a prostitute on the night in question. In the circumstances in which, as His Honour recognised, "the crux of this case is really a comparison of the credibility of the

accused on the one hand and the complainant on the other", His Honour's direction that the jury could take into account the appellant's "very great interest in the proceedings ... when weighing his evidence and deciding on his credibility" was plainly unsatisfactory. See Robinson v. The Queen (No. 2)

(1991) 65 A.L.J.R. 644.

The point was not initially raised by the appellant in this

Court but, quite properly, the respondent did not oppose the

appellant's application to add this to his grounds of appeal. Nor was it submitted that the guilty verdict could be defended

on the basis that there was, in any event, no substantial

miscarriage of justice.

In the circumstances, the appeal should be allowed, the

conviction quashed and a new trial ordered.

JUDGMENT - BYRNE J.

Delivered the 6th day of March 1992

The summing-up at the appellant's trial took place before

Robinson v. The Queen (No. 2) (1991) 65 A.L.J.R. 644 was

decided. In that case, the High Court dealt with a judge's invitation to a jury to consider, when evaluating the evidence

of an accused, his obvious interest in the outcome. The Court regarded the particular words used as a serious misdirection, undermining the presumption of innocence and requiring the quashing of a rape conviction. In Robinson the summing-up had

identified a number of ways in which the jury might test the

credibility of a witness. Towards the end the trial judge in

Robinson had said:
"Another test was what interest does a witness have in the

outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinise that witness's evidence closely. You might think - it is a matter solely for you - that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinise his evidence closely."

The High Court described the impact of those remarks in

this way (at pp. 645-646):
"His Honour had suggested to the jury that they might think

that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned on the jury's preference for the evidence of the complainant against that of the accused ... Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person."

In this case, as in Robinson, the verdicts show that the

jury was persuaded beyond reasonable doubt of the truth of the

complainant's testimony. In this trial, the judge told the

jury:
"When you are assessing the credibility and the reliability

of the witnesses and deciding what weight you think can be given to their evidence, you consider such things as their demeanour in the witness-box, the way they handled the questions put to them, particularly in cross-examination. After all, one of the purposes of cross-examination is to try to test a witness's evidence to see whether the witness is or is not telling the truth.

You may have regard to the character of the witness. In this case you have heard evidence which relates to the character of the complainant and the accused person. Those are matters which may assist you in determining the relative credibility of the witnesses.

You will appreciate by now that perhaps the crux of this
case is really a comparison of the credibility of the
accused on one hand and the complainant on the other.
You can consider any interest the witness has in the
proceedings or whether by virtue of these proceedings
he is likely to be biased one way or the other, and

whether or not he is prejudiced or biased towards one

side or the other.

You may think a number of the witnesses in this case, such as the bar attendants, the waitresses, the security officers, have no real interest in the outcome of this case. For that reason you may think you can attach more weight to their evidence, but that's entirely a matter for you. Of course, the accused does have a very great interest in the proceedings but that doesn't mean to say because he has an interest you don't accept his evidence, but it's a matter you can take into consideration when weighing his evidence and deciding on his credibility.

Bear in mind that some witnesses may be trying to be honest, but for some reason or other are unreliable. Have consideration to inconsistencies there are in the evidence of the witnesses - inconsistencies between what they may have said on one occasion and what they may have said later on. But basically when it comes to assessing the credibility and the reliability of the witnesses you use your commonsense. You have had the opportunity of seeing them all, hearing them give their evidence, observing them in the witness-box. You're in as good a position as any of us to decide who is telling the truth."

In Robinson the judge had not directed the jury to exercise caution when weighing the evidence of the accused. What he had done was to point out that the accused "had the greatest

interest of all the witnesses" and then to comment that the jury

might for that reason wish to "scrutinise his evidence closely".
The accused's interest, the jury was informed, was something

they might, not must, consider: cf. The Queen v. Wilson, C.A.

No. 175 of 1991, p. 2 of the reasons of de Jersey J.

Nonetheless the High Court regarded the remarks as, "almost

certainly", leading the jury to understand that "the evidence of the appellant had to be scrutinised more carefully than that of

any other witness": p. 646 2nd col. B. Words with that effect constituted "a serious misdirection in the summing-up which went to the fairness of the trial of the appellant and which

undermined the presumption of innocence." The High Court concluded that "a conviction based on such directions is simply too unsatisfactory to be allowed to stand.": ibid.

The direction in the present case did suggest that the jury might test the reliability of evidence, including that of the appellant, by weighing differing degrees of interest in the verdicts. The significance of the outcome for the appellant was expressly contrasted with that of "a number of other witnesses" who, the judge said, had "no real interest in the outcome". The appellant's interest, the jury was told, was both "very great" and "a matter you can take into consideration when weighing his evidence and deciding on his credibility". This invitation did not speak of a need for special scrutiny of the appellant's evidence. But the thrust of the remarks is not different in substance from that of the summing-up in Robinson. The jury was not directed in terms to evaluate the evidence by reference to the interest of the witnesses. However, it was indicated, as it

was to the Robinson jury, that the jury might approach the appellant's testimony with particular caution for no reason other than that he was the accused. Robinson shows that such a misdirection requires the quashing of the convictions.

The appeal should be allowed. There should be a new trial.