R v R, R & R, LJ
[2008] SASC 35
•20 February 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v R, R & R, LJ
[2008] SASC 35
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)
20 February 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF LEGAL PRACTITIONERS
Permission to appeal and appeals against conviction - appellants each convicted of rape following trial by judge alone - appellants and complainant Aboriginals living on the Anangu Pitjantjatjara Lands - whether trial judge adequately directed herself - whether recent complaint evidence improperly used - whether identity established on the evidence - whether verdict unreasonable and unsupported by the evidence - whether complainant's mental health so affected her reliability and credibility that her uncorroborated evidence should not have been accepted - whether verdict unsafe and unsatisfactory as a result of the manner in which the trial was conducted by counsel - whether inadequacy of police investigation causative of a miscarriage of justice.
Held: Appeals dismissed.
Ali v R (2005) 214 ALR 1; Nudd v R (2006) 225 ALR 161; Penney v R (1998) 155 ALR 605; R v Birks (1990) 19 NSWLR 677; R v Green (2000) 78 SASR 463; R v Heeremans (2007) 249 LSJS 49; R v Hughes [2007] SASC 318; R v Keyte (2000) 78 SASR 68; The Queen v Apostilides (1984) 154 CLR 563; TKJW v The Queen (2002) 212 CLR 124, applied.
Gipp v The Queen (1998) 194 CLR 106; Jago v District Court (NSW) (1989) 168 CLR 23; Jones v The Queen (1997) 191 CLR 439; M v The Queen (1994) 181 CLR 487; R v R, R & Anor [2007] SASC 71; Richardson v The Queen (1974) 131 CLR 116; Whitehorn v The Queen (1983) 152 CLR 657, considered.
R v R, R & R, LJ
[2008] SASC 35Court of Criminal Appeal: Gray, Sulan and White JJ
GRAY J.
Introduction
These are appeals against conviction.
On 2 March 2007, following a joint trial by judge alone in the Supreme Court, each appellant, R, R and R, LJ, was convicted of a separate offence of rape.[1] Each has appealed with leave against his conviction on the ground that the verdict was unreasonable and unsupported by the evidence. Each has also sought permission to appeal on other grounds.
[1] R v R, R & Anor [2007] SASC 71.
On the hearing of the appeal, the Court directed that the applications for permission to appeal be fully argued so that in the event of the granting of permission there would be no need for any further hearing.
The history of the matter has been canvassed in detail by Sulan J. His Honour has reviewed the reasons of the trial Judge. In these reasons I respectfully adopt that history and review and only refer to those matters as are necessary for an understanding of these reasons.
The prosecution case was that in February 2005, the complainant was home at Amata in the Pitjantjatjara Lands. She was alone. It was night time. She had watched television and had gone to bed. She was awoken when a young man came through the window of her bedroom. She recognised this man as R, LJ. Shortly after, another young man came through the door of her bedroom. She recognised this man as R, R, the brother of R, LJ. Both R, LJ and R, R kicked her. Her clothing was torn. R, LJ had penile vaginal intercourse with her without her consent and then R, R had penile anal intercourse without her consent. Both R, LJ and R, R then left.
The complainant reported the incident to a nurse at a local clinic within two days. The police attended and a brief statement was taken from the complainant without an interpreter. The complainant was then flown to Alice Springs and medically examined. She gave a history to the medical examiner without the aid of an interpreter. A year later, the complainant provided a lengthy statement over a three-day period to a female police officer with the assistance of a female Aboriginal interpreter.
Evidence was led at trial from the investigating police officers, the medical practitioner and others subsequently involved in the investigation. A number of statements were admitted by consent. An agreed statement of facts was tendered.
The defence cases were that the complainant was an unreliable witness, that her evidence of recognition was seriously flawed, and that at the very least a reasonable doubt arose. Neither defendant gave evidence.
It was common ground that the prosecution case relied almost entirely on evidence of the complainant. If her evidence was not accepted beyond a reasonable doubt, there would necessarily be acquittals. There was no independent support to the complainant’s account.
The complainant’s claimed recognition of R, LJ and R, R was the primary issue at trial. In this respect it is relevant to record that the complainant had been at school at Amata with both R, LJ and R, R. Amata is a small community and within the Pitjantjatjara Lands.
Suggested Irregularities in the Investigation
It is convenient to first address a complaint by R, R that the police investigation had been wholly inadequate, such that a fair trial could not be undertaken. The guiding principles are set out in the High Court decision of Jago v District Court (NSW),[2] where Mason CJ observed:
Moreover, objections to the discretion to prevent unfairness give insufficient weight to the right of an accused person to receive a fair trial. That right is one of several entrenched in our legal system in the interests of seeking to ensure that innocent people are not convicted of criminal offences. As such, it is more commonly manifested in rules of law and of practice designed to regulate the course of the trial … But there is no reason why the right should not extend to the whole course of the criminal process and it is inconceivable that a trial which could not fairly proceed should be compelled to take place on the grounds that such a course did not constitute an abuse of process.
…
The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused ….
[Emphasis added]
Deane J observed:[3]
The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience. Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence. Another is where impropriety on the part of the prosecution has concealed from an accused important evidence which would have assisted him in his defence. In each of those examples, the effect of the default or impropriety could ordinarily be dealt with by orders (eg adjournment, further particulars or new trial) which will avoid unfairness in a subsequent trial or retrial. It is, however, possible to formulate examples of cases in which the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused. Thus, one can envisage circumstances in which calculated and unreasonable delay on the part of the prosecution in bringing proceedings to trial had so unfairly and permanently prejudiced the ability of an accused to defend himself that no subsequent trial could be a fair one.
[Emphasis added]
[2] Jago v District Court (NSW) (1989) 168 CLR 23 at 29, 33.
[3] Jago v District Court (NSW) (1989) 168 CLR 23 at 57.
In Penney,[4] the High Court addressed the consequences of an unsatisfactory police investigation. Callinan J, with whom McHugh, Gummow, Kirby and Hayne JJ agree, observed:[5]
It was put that there was, in effect, a trial process which began at the inception of the investigation leading to the bringing of a charge and that a defective police investigation had so infected that trial process that the trial was not a fair trial.
There is no doubt that the police investigation was unsatisfactory in some respects. However, these defects were fully exposed to the jury in cross-examination and the address to the jury by the appellant's counsel. There was some reinforcement of the criticism of these defects by the accurate summary of the defence submissions to the jury by the trial judge.
The appellant’s submissions on these contentions fail at the threshold. They fail because even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial. But that will all depend on the facts of the particular case. …
…
The submission here fails for the further reason that there were numerous factual matters (apart from anything that may or may not have been learnt from a better investigation), which the jury were entitled to take into account to reach a guilty verdict. It could not be put by the appellant that had the investigation been conducted better there was a likelihood that evidence that might have exculpated the appellant would have been available.
…
Nothing that was done or omitted to be done in this case constituted unfairness of the kind of which Deane J in Jago v District Court (NSW) gave examples ….
[4] R v Penney (1998) 155 ALR 605.
[5] R v Penney (1998) 155 ALR 605 at [16]-[18], [20], [22] (footnotes omitted).
The complaints in the present case concerning the investigation centred on the inadequacy of the investigation of the scene and of the medical examination of the complainant and her clothing. These complaints are to be considered having regard to the difficulties of investigating crimes in remote communities including geographic considerations and resource constraints. In my view there is no substance to this complaint. An investigation was undertaken and enquiries were made, which in the circumstances allowed a fair trial to take place. The forensic investigations may have been more extensive. However, it was not demonstrated that any suggested inadequacy in the investigation could have given rise to a risk of a miscarriage of justice. The primary issue was one of recognition on which direct evidence was available.
Suggested Irregularities in the Conduct of the Trial
Both appellants sought to advance a complaint that the prosecution had not acted properly with respect to the calling of evidence. In Whitehorn,[6] Deane J discussed the role of the prosecution in the leading of evidence in the following terms:
Under the adversary system which operates in a criminal trial in this country, it is for the Crown and not the judge to determine what witnesses are called by the Crown. That is not to say that the Crown is entitled to adopt the approach that it will call only those witnesses whose evidence will assist in obtaining a conviction. Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered ... . If there be exceptions to that general proposition, they do not presently occur to me.
The observance of traditional considerations of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactical considerations. Whether or not their names appear on the back of the indictment or information, all witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, should be called by the Crown unless valid reason exists for refraining from calling a particular witness or witnesses, such as that the interests of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point.
[6] Whitehorn v The Queen (1983) 152 CLR 657 at 663-664.
The High Court has more recently discussed the role of the prosecution and the calling of evidence in Apostilides.[7] The Court observed:
We have come to the conclusion that the following general propositions are applicable to the conduct of criminal trials in Australia:
1The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
...
6A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.
[7] R v Apostilides (1984) 154 CLR 563 at 575.
In formulating these propositions the Court qualified the earlier position outlined in Richardson[8] by no longer requiring misconduct to be established on the part of the prosecution before considering whether in all the circumstances of a particular case, a miscarriage of justice has arisen.
[8] Richardsonv The Queen (1974) 131 CLR 116.
The complaints made on this appeal catalogued a list of items of evidence that, it was said, should have been led by the prosecution. I respectfully adopt Sulan J’s summary of that evidence. The evidence was made available to both defendants who could have pursued each matter. There were forensic advantages and disadvantages to the defence with respect to each item of evidence. The decision of the prosecution not to present the evidence did not lead to a relevantly incomplete account of events. The decision not to present the evidence did not, when viewed in the context of the trial as a whole, give rise to any risk of a miscarriage of justice.
R, R sought permission to appeal on the ground that his counsel had acted incompetently in regard to his defence to a point where a miscarriage of justice had occurred. The High Court in Nudd,[9] TKWJ[10] and Ali[11] has provided an extensive review of the principles to be applied when considering such a complaint. A court is to evaluate the challenged conduct to determine whether that conduct deprived the appellant of a chance of an acquittal that was fairly open. This process is to be undertaken objectively to determine whether proven conduct gave rise to a material risk of a miscarriage of justice.[12]
[9] Nudd v R (2006) 225 ALR 161.
[10] TKWJ v The Queen (2002) 212 CLR 124.
[11] Ali v R (2005) 214 ALR 1.
[12] R v Heeremans (2007) 249 LSJS 49; R v Hughes [2007] SASC 318.
The complaints centred on the suggested failure of counsel for R, R to cross-examine the complainant on prior inconsistent statements. Other complaints concerned the suggested failure of counsel to properly investigate and then advance at trial what were said to be weaknesses in the prosecution case. Sulan J has reviewed these matters in detail and I respectfully adopt his analysis. None of the complaints, viewed objectively, gave rise to any material risk of a miscarriage of justice.
Suggested Deficiencies in the Judge’s Reasons
Both appellants sought permission to appeal with respect to the adequacy of the trial Judge’s reasons. It was submitted that there were serious deficiencies in the way in which the Judge directed herself on a number of issues – identification and recognition, the lack of supporting testimony, the mental health of the complainant and the effect on her credibility and reliability. The submission went so far as to suggest that the Judge was required to warn and direct herself in the terms in which a jury would be required to be warned or directed.
It is important that a judge presiding alone in a criminal trial should give adequate reasons for the verdict. Those reasons should provide a clear explanation for the reasons for the verdict and be sufficient to allow an appellate court to review the verdict. It might be expected that the reasons would demonstrate that the trial Judge had proper regard to the relevant legal principles to be applied. The reasons should demonstrate an appropriate awareness of the burden of proof and the need for that burden to be satisfied in regard to each of the elements of an offence. The reasons should also allow the conclusion that proper regard was had to particular risks, for example, the dangers of convicting in the absence of supporting evidence, the weaknesses and the risks attaching to identification and recognition evidence and the significance of prior inconsistent out-of-court statements. These are but examples of difficulties that need to be addressed in particular circumstances. The reasons in appropriate cases should explain the way in which such issues have been addressed. There is no fixed formula for how this should be done. It is a matter for the individual judge. Some judges may choose to demonstrate their awareness in the language of a warning or direction. Other judges may choose to demonstrate their awareness by their process of reasoning.[13]
[13] R v Keyte (2000) 78 SASR 68 at [7]; R v Green (2000) 78 SASR 463.
In the present case, both appellants complained that the trial Judge had not properly had regard to the features of the evidence that suggested the complainant to be an unreliable witness. They referred to her mental health problems, her out-of-court inconsistent statements, her inconsistent testimony and what was said to be her unreliable and unsatisfactory recognition evidence.
A review of the trial Judge’s extensive reasons demonstrates that there is no substance to any of these complaints. This is a case where the trial Judge on relevant topics expressly directed and warned herself in substantially the terms in which a jury would be warned and directed. The Judge’s detailed reasons went further. They demonstrate that her Honour paid proper regard to the warnings and directions that she identified. Her Honour disclosed in detail her reasons for her acceptance of the complainant’s evidence beyond a reasonable doubt. These reasons identified why each of the submissions advanced about the complainant’s unreliability were to be rejected. Sulan J has addressed these matters in detail and I respectfully accept and adopt his reasoning.
A Suggested Risk of a Miscarriage of Justice
The final matter for discussion is the ground of appeal on which leave has been granted. Both appellants complained that the verdicts were unreasonable and unsupported by the evidence and that in the circumstances there was a risk of a miscarriage of justice and that verdicts of acquittal should be entered. This Court has the obligation to review the evidence and then answer the question whether, in all the circumstances, the verdicts are unreasonable or cannot be supported. In M,[14] Mason CJ, Deane, Dawson and Toohey JJ summarised the approach to be taken by the appellate court:
[14] M v The Queen (1994) 181 CLR 487 at 492-493 (footnotes omitted). See also Jones v The Queen (1997) 191 CLR 439 at 450, Gipp v The Queen (1998) 194 CLR 106 at [49].
The question [of whether a verdict is unsafe or unsatisfactory] is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be “unreasonable” or incapable of being “supported having regard to the evidence”. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. In speaking of the Criminal Appeal Act in Hargan v The King, Isaacs J said:
“If [the appellant] can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance.”
And as the Court observed in Davies and Cody v The King, the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers:
“not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.”
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
The appellate court does not have the advantage of seeing and hearing the witnesses. The complainant was fully tested in cross-examination and it was open to the trial Judge to accept her evidence, having regard to all of the evidence in the trial. My review of the evidence has allowed the conclusion that the verdicts of guilty were not unreasonable. The verdicts were supported by the evidence. The review confirms that the verdicts were the appropriate verdicts on the evidence.
Conclusion
I would refuse permission to appeal as sought. I would dismiss both appeals.
SULAN J: On 2 March 2007, the appellants, R, R and R, LJ, to whom I shall refer as ‘R’ and ‘L’ respectively, were each convicted by a judge sitting without a jury of the rape of W, a female aged 19. R was found guilty of committing anal sexual intercourse against W without her consent; L was found to have committed vaginal sexual intercourse against her without consent. R, L and W are all young Pitjantjatjara Aboriginals. The rapes were alleged as having been committed at Amata on the Anangu Pitjantjatjara Lands (‘the AP Lands’).
Each appellant appeals against his conviction.
The history of the appeals may be summarised as follows. On 25 May 2007, a Judge heard each appellant’s application for permission to appeal his conviction. In broad terms, both appellants sought permission to appeal on two bases. First, that the trial Judge’s self-directions and findings in relation to W’s evidence were inadequate and or erroneous and, secondly, that the verdict of guilty was unreasonable and could not be supported having regard to the evidence. Each appellant was granted permission to appeal on the basis that the verdict of guilty was unreasonable and unsupported by the evidence. The Judge refused permission to appeal on the ground that the trial Judge had misdirected herself and that her findings were inadequate in relation to W’s evidence.
Before this Court, each appellant sought permission to appeal on those grounds which had been rejected. In addition, counsel for each appellant sought permission to appeal on the basis that the verdict was unsafe and unsatisfactory having regard to the failure of trial counsel to investigate and lead evidence on a number of matters relating to the complainant and the investigation conducted by police and other agencies. The Court granted leave to amend the notices to add a further ground of appeal along these terms, however, counsel for L subsequently advised the Court that his client was not pursuing the additional ground.
Before turning to the grounds of appeal in detail, it is appropriate to observe the manner in which the trial unfolded.
The trial
In her reasons for verdict of 2 March,[15] the trial Judge summarised the Crown case as follows:
The Crown case is essentially simple. In summary the case is that on or about 17 February 2005 [W] was home alone in her house at Amata in the AP Lands. She had watched television and then went to bed. She was woken by noises and woken again when a person, who said his name was “L”, came through the window of her bedroom. Shortly after, she saw his brother, R, come through the door of her bedroom. She was still in bed. Both of them kicked her and her clothing was torn off. First, L had penile/vaginal intercourse with her without her consent, and then R had penile/anal intercourse with her without her consent. They then left.[16]
[15] R v R, R & Anor [2007] SASC 71.
[16] Ibid, [5].
W reported the assaults to a nurse, Nurse Mills, at a local clinic within two days of their occurrence. Police subsequently attended the Amata community and Constable MacPherson took a brief, initial statement from W. She was then flown to Alice Springs and there examined by Dr Bagar, who took a short history, which was recorded in notes taken by Constable Dooley-McDonnell. These statements were taken without the benefit of an interpreter. A year after the alleged rapes, over the course of three days from 27 February 2006 to 1 March 2006, Senior Constable Brumpton took a detailed statement from W with the assistance of a female Aboriginal interpreter.[17]
[17] Ibid, [7].
The persons I have mentioned, apart from Nurse Mills who died before the trial commenced, together with others subsequently involved in the investigation of W’s allegations, were prosecution witnesses.[18] The Crown also tendered a number of exhibits, including photographs, clothing and video footage. A number of statements, including a statement of agreed facts, were admitted by consent. The Crown case relied almost entirely on the evidence of W, there being no corroborative evidence.[19]
[18] Ibid, [4].
[19] Ibid, [9].
Identity was the primary issue in the trial. The trial Judge said:
The primary issue in the case concerns identity and whether the prosecution has proved beyond reasonable doubt that the accused raped [W]. In addition, this issue is linked to whether the prosecution has proved that [W] was raped by any persons and in particular whether she was anally raped as she contended.[20]
[20] Ibid, [8].
The trial Judge noted that W has known both appellants since she was a small child, the three having attended the same school in Amata with W and R having been friends in the same class.[21] The trial Judge then undertook an extensive review of W’s evidence. Her Honour’s assessment of the evidence is best examined in the context of the appellants’ grounds of appeal, to which I now turn.
[21] Ibid, [6].
The appellants called a scientist but did not give evidence themselves. The defence case was that the evidence of W was so unreliable that the prosecution had failed to prove the case against either of the appellants beyond reasonable doubt.
Grounds of appeal
As I have indicated, there are two grounds on which each appeal is brought, namely, that the trial Judge’s self-directions and findings in relation to W’s evidence were inadequate and or erroneous, and the verdict of guilty was unreasonable and unsupported by the evidence. In addition, R appeals on the basis that the verdict was unsafe and unsatisfactory having regard to the conduct of the trial by counsel.
There are detailed particulars in respect of each ground. They are best summarised in the context of the submissions made by counsel on the appeal.
The appellants contend that the trial Judge erred in her directions and in her conclusions about W’s evidence. In relation to this ground, it is convenient to deal with each appeal separately as the complaint of each appellant is slightly different.
The extent of the obligation of a trial judge to give reasons
The trial Judge gave extensive and detailed reasons for her verdicts. She considered all arguments of counsel. She gave reasons for accepting or rejecting the evidence of witnesses. She dealt with the submissions of counsel. She directed herself upon legal issues and she cautioned herself as if she had been directing a jury.
In R v Keyte,[22] the Chief Justice discussed the extent of the obligations of a judge sitting alone to give reasons. The requirement for the judge to refer to the relevant law is necessary so that an appellate court can identify whether the judge has applied the law correctly to the issues in the trial. The judge should set out in clear terms the legal questions which arise and the judge’s conclusions. There is no requirement for the judge to follow a formula. A judge is not required to direct him or herself as they would direct a jury. In Keyte, Doyle CJ observed:
This is not the case in which to decide in a comprehensive way the extent of the obligation to give reasons for a decision as to guilt or innocence in a trial without a jury. It is not appropriate to do so because it is not a matter on which the Court has had the benefit of full submissions. Different considerations might apply to matters of law and of fact, to a verdict of guilty and a verdict of not guilty. I should make it clear that, in what I have already said, there is no assumption that in such a case the reasons for decision must replicate the instructions that would be given to a jury, and also include detailed findings on all issues of fact. There is considerable force in what Kirby P said in R v Winner (1995) 79 A Crim R 528 at 530-531:
"... It has not yet been possible for the Court to accumulate a body of precedent regarding the approaches to be taken by a judge instructing himself or herself on the applicable principles of law. It seems to have been assumed that the judge is bound to record (as if in an instruction to a jury) the considerations which have been taken into account in reaching the determination on the issue of guilt. It also seems to have been assumed that the same explanations for adopting one course rather than another, which are regularly used to justify decisions at trial before a jury, are to be incorporated, without modification, in a trial before a judge sitting alone. I question these assumptions. It is not self-evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. Similarly, the tactical reasons which might require, or suggest, silence by the parties on a particular issue in a trial before a jury will not apply, at least to the same extent, before a judge sitting alone. It should be perfectly possible for the judge to hear inconsistent submissions put in the alternative. In the hands of a trained judicial officer, these would be evaluated on their merits and decided as the law and the factual findings required.
The judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office. Those reasons must be adequate and appropriate to sustain the judge's orders. But I am far from convinced that the absence from such reasons of express references to judicial instruction which might be required for a jury trial will necessarily indicate the kind of errors that would invite and authorise the intervention of a Court of Criminal Appeal. One of the obvious advantages intended by Parliament in the procedure of trial before a judge sitting alone is the saving of time, the consideration of the case by a trained and experienced decision-maker and the provision of reasons for the decision which may be reviewed on appeal."[23]
[22] (2000) 78 SASR 68.
[23] R v Keyte (2000) 78 SASR 68, 79-80 [54] (some citations omitted).
In this case, the trial Judge used the forumla of warning herself and directing herself as if she was the jury. It is open to a trial Judge to adopt that formula. However, there is no requirement to do so. If the reasons are sufficient so as to explain why evidence was admitted, what use was made of the evidence, the inferences drawn from the evidence and the approach of the judge to the evidence so that an appellate court can ascertain the judge’s reasoning, that is sufficient. There is no rule as to the test of the adequacy of a judge’s reasons. Each case will depend upon its circumstances. I now turn to the directions in this case.
The complainant’s evidence
Counsel for R complains that the trial Judge’s warning, to herself, in relation to W’s evidence was not sufficiently strong given the absence of any corroborative evidence, the mental health of W and the inconsistencies in W’s evidence regarding the circumstances surrounding the rapes and the manner in which they took place.
It is plain, from the reasons of the trial Judge, that she was acutely aware of the need to closely scrutinise the evidence of W in arriving at her verdict. Early in her reasons, the trial Judge said:
In this case identity of each of the accused is the major issue. It is important in this case that I take account of the fact that there can often be problems with evidence of identification and that care should be taken in assessing the reliability of identification. I recognise that honest witnesses can be mistaken in making an identification and that a mistaken witness can be certain and believe in the identification that they have given. In this case it is necessary for me to bear in mind a number of factors which may affect [W]'s identification of each of the accused. I will consider this aspect more specifically in the course of discussing the evidence.
I must also closely scrutinise the evidence of [W] because the case against the accused relies solely on her evidence, which is not corroborated. Again, this is a matter that I will address in more detail in the course of these reasons for verdict.[24]
[24] R v R, R & Anor [2007] SASC 71, [17]-[18].
Later, the trial Judge said:
It is necessary for me to now notionally stand back and consider the whole of the evidence before me to decide whether each of the accused is guilty of the offence with which he is charged and whether it has been proved beyond reasonable doubt. There are many matters which require my consideration and there are some matters which require particular consideration. It is necessary for me to have regard to them collectively and not just in an individual separate manner as I have discussed earlier in these reasons. I have specifically taken into account the following matters -
·The mental health of [W].
·The circumstances of the taking of earlier statements from her.
·The alleged inconsistencies as to -
- other noises
- entry into the house
- closing and locking of external doors
- whether her bedroom door was open or shut
- the lighting in her bedroom
- the kicking
- the complaint of anal and vaginal rape
·The evidence of Dr Bagar
·The identification evidence.
·The scientific evidence
·The overall context of the manner of [W] in giving evidence.
I have carefully scrutinised [W]’s evidence in view of the lack of corroboration. I have had some concerns about the reliability of some aspects of [W]’s evidence as previously discussed. However, taking into account all of these matters and the whole of the evidence in the case, I consider that on the major elements of her identification of the accused and the sexual acts which she alleged each of the accused committed, [W] was both credible and reliable.
The areas of alleged inconsistency and unreliability were mostly concerned with matters of detail which understandably were of lesser importance to [W], especially given the violent and demeaning activities which later followed.[25]
[25] Ibid, [152]-[154].
The matters identified by the trial Judge were comprehensively and individually analysed by her in the course of her reasons. The trial Judge repeatedly referred to the lack of corroborative evidence and the need to carefully scrutinise the evidence. It is evident throughout the trial Judge’s reasons that she was aware of the need to carefully scrutinise not only the evidence of the complainant, but the complainant’s personal circumstances, particularly her mental health, and the circumstances in which W described the offences as having been committed, particularly the nature of the sexual assaults alleged.
The trial Judge gave herself the appropriate warnings and recorded them in her reasons, in accordance with the usual practice to be adopted by a judge sitting alone.[26] Moreover, the trial Judge’s comprehensive review of the evidence is itself testament to the caution she exercised in arriving at her conclusions.
[26] R v Green (2000) 78 SASR 463, 474.
I would refuse permission and dismiss this ground of appeal.
Recent complaint
R further complains that the trial Judge failed to direct herself as to the use to be made of evidence of recent complaint.
This ground relates to testimony given by W in examination-in-chief that she told Nurse Mills, who initially examined her that, “These two blokes have done really bad things to me”. The prosecution did not rely on the statement as evidence of recent complaint. The trial Judge did not rely on the evidence as evidence of recent complaint.[27] The prosecution submitted, in closing, that W’s failure to complain earlier than she did, did not detract from the Crown case.
[27] R v R, R & Anor [2007] SASC 71, [43].
In light of the Crown’s submissions during closing addresses and the manner in which the point was dealt with by the trial Judge, I do not consider there to be any basis for arguing that the failure of the trial Judge to give herself an explicit direction on this point is an error. I would refuse permission and dismiss this ground.
Identification
L complains that the trial Judge’s self-directions and findings in respect of the issues of identity, identification and recognition were inadequate and erroneous. The gravamen of the complaint is that it was not open to the trial Judge to conclude that W recognised and could subsequently identify L as one of the offenders.
In examination-in-chief, W testified that she has known the two brothers, R and L, who live at Amata, since she was “little”. This was not challenged. On the night of the alleged assaults, W said she was asleep in her room. The light in her room was broken but the room was lit by light coming from an adjoining room. W then described the circumstances in which the appellants entered her room, she said:
When I was lying down, I was getting a bit frightened and I can hear some stones being thrown on the roof and to the window also. And I wonder there might be some man walking around or something else. Then I woke up and then I started getting a bit tired again and then I went back to sleep. And something woke me up then and I seen someone coming through the window. And I was getting really frightened then. Someone was talking to me. Then I say 'Who are you?' And then I asked 'What did you come here for?' And this person said 'I come to see you'. Then I asked 'What's your name?' He told me his name then, [L]. And then I asked him 'What did you come here for? What did you come here for? Just get up and go. I don't want to see you.' He was standing there for a long time thinking. Then he said 'Put the light off' and I said 'No'. Then I said to him 'You go and do something to any other woman. What do you come looking for me for?' And that's when the brother come in. The brother saw [L] then. That's when both of them were acting a bit strange then. I told them 'Get out and go. You two got no shame coming in. What you two come here for, what you want to do?' Didn't say nothing. They started taking my pants off, my trousers. Taking T-shirt off really quickly. That's when they grabbed both of my hands really tight. Both of them grabbed hold of my foot. I couldn't move much. They closed my mouth too and I couldn't yell out then and that's when they must have put their penis in me. One was kicking me. I didn't know what to do for help.
During cross-examination, W was asked the following questions:
QYou asked this man his name, didn’t you?
AYes.
QAnd this man said his name was [L]; is that right?
AYes.
QYou didn’t recognise his man who was in the room, did you?
AI didn’t know him.
QCould you repeat the answer?
AI didn’t know him.
QDid or did not?
AI didn’t know him.
QI’m sorry?
ADidn’t.
QWhen you first saw this man, where was he?
AReally close.
In later cross-examination, W said:
QThe night this bad thing happened to you, the first man who came into your room who said his name was [L], that was not [L], was it?
AYes, it was him.
QIt was another man who said his name was [L] but it wasn’t [L]?
AIt must have been him.
Q[L] never had sex with you that night, never put his penis in your middle hole?
AIt was him.
L did not give evidence. He (as R) denied any involvement in the offences W alleged.
W’s evidence was given via closed circuit television (‘CCTV’). At no stage of the trial was she asked or required to identify either of the appellants in court. The Crown case depended on W’s recognition, rather than identification, of L (and R) as her assaulters. As with all aspects of W’s evidence, the trial Judge considered W’s evidence of her recognition of the appellants as her assailants in considerable detail. In respect of W’s evidence that she knew the appellants prior to the alleged incident, the trial Judge said:
[W] said that she had known R since she was little and that they were at school together. She said they were about the same age and he was one of her friends when they were younger (T60). She was also asked whether she knew L, his brother. Initially she said, “No” (T60) but later indicated that she knew L “a little bit.” (T61) She was asked whom she knew better, L or R, and she answered, “Both of them.” (T61) In cross-examination she was asked whether L had been to the same school, she initially answered, “No”, but on further questioning indicated that L had been at the same school at the same time as her but was in another classroom (T90).She also said he had only gone to the same school “a little while.”
Counsel for L was critical of this apparent inconsistency in her evidence. I have taken the criticism into account and my impression was that her initial answer of “No” appeared to be in a context in which she interpreted the question as asking whether she knew L well. It had followed earlier questions about her knowledge of R. I noticed a similar approach to answering when she was examined and cross-examined about whether she knew the months of the year. Initially she responded either “No” or “Don’t know” but then later indicated “a little bit.” (T93-94) A similar response was given when asked whether she knew a police lady by the name of “Karen”, being Senior Constable Karen Brumpton, who had not only taken a statement from her over a period of three days a year after the incident, but who was present with her at Port Augusta when she initially gave her evidence. On first questioning she indicated that “Maybe I seen her” and then later agreed that she did know her (T171). I do not consider this to be an inconsistency but rather a matter of her understanding and interpretation of the question and the manner in which she gave an answer to that question. In each of these examples there is no doubt that she knew, to some degree, each of the persons and also the months of the year, but she did not know them well when compared with other things she knew very well.
In short, I am satisfied that [W] had known both L and R well. She had known them since she was very young, they had all lived together at Amata for various periods of time and had gone to the same school. Evidence was given by Detective Brevet Sergeant Cunningham that Amata is a very small community of 300 people which includes both indigenous and non-indigenous people. This evidence is of some significance when I consider the issue of [W]’s identification of accused on that night.[28]
[28] Ibid, [27]-[29].
The trial Judge considered W’s evidence that L had raped her. The trial Judge set out the relevant evidence, including the testimony to which I have referred above. She concluded:
In considering this evidence, I am satisfied that [W] knew L before this event, and had known him for some time as he had been at the same school as her. I also note that she had been woken up after being asleep, and she may have had difficulty focussing at the beginning. She also had the surprise of someone coming through her bedroom window. In those circumstances I do not think that simply because she asked, “Who is it?” to the person who came through the window, means that her subsequent identification of that person is not accurate.
I accept [W]’s evidence that the person who came through the window identified himself as being a person by the name of “L.” She gave a description of him which varied as to whether he was wearing an Eminen t-shirt or a dark blue singlet. In my view, this different description does not take on much significance. It was a dark top whichever description is accepted. I also note that she described him as having a plastic bottle on his face. There were no further questions as to what happened with this plastic bottle and whether it in any way obscured her view of his face.
There is no evidence as to the type of lighting or position of the lighting in the large room or how bright or otherwise it was in her bedroom. I accept that the lighting in the bedroom was ambient light from the main room. I accept [W]’s evidence that the person who came through the window told her to put the light out, which suggests that there was sufficient light for her to be able to see and be seen. I am satisfied that [W] was in a position where she had a sufficient opportunity to identify the first man who came through the window by reason of lighting which was on in the main room.
I also note that it was specifically put to [W] that it was not L but instead it was someone else who said his name was L. She immediately and confidently affirmed “It was him”. It was also put to her that L was not living at Amata but at Wallan at the time and that he came into Amata to collect his money. She agreed (T117). She was asked whether she knew persons by the name of Jeremy Bradey and his brother Elijah Bradey. She indicated that she did. She was asked whether Elijah had done the bad thing to her, and she answered “No.” There was no further evidence on these topics. Of course it is not for the defence to call such evidence and I can draw no adverse conclusion against the defendants from its absence.[29]
[29] Ibid, [122]-[125].
The evidence was capable of establishing that W knew the two appellants, as brothers who lived in the Amata community, which is a small community of approximately 300, predominantly Aboriginal people. There was no suggestion, or cause to suspect, that W had confused the appellants with any other brothers who lived at Amata. The evidence also established that the room was sufficiently lit at the time of the alleged incidents for W to see her alleged attackers and that she recognised them as the appellants.
In determining whether she was satisfied beyond reasonable doubt in respect of W’s testimony that she recognised L and R as the men she claims raped her, the trial Judge said:
In considering the matter of identification, being the overriding issue in this case, it is important that I bear in mind that evidence of identification needs to be approached with caution and that honest witnesses can be mistaken.
In this case it is necessary for me to bear in mind a number of factors which may affect [W]’s identification of the accused in this case. First, she had woken up after she had been asleep. Secondly, that she was surprised by a person coming through her bedroom window at night time. Thirdly, that there was no light on in her room and she relied on ambient light from a main room next to hers. Fourthly, I have regard to her evidence that both persons who came into her room had plastic bottles from which they were apparently sniffing petrol. There was no evidence of the degree to which the bottles may have impaired her ability to see their face, but I have inferred that these bottles would not have been an impediment above the nose. Fifthly, I note that [W] has known both the accused, and R in particular, for a long period of time. She lives in a very small community. The total number of people, including non-indigenous people, is only 300. The number of males, and in particular young adult males who are brothers, would be relatively small in numbers.
The greatest significance for identification in this case is [W]’s past knowledge of both of the accused. Whilst I have some concerns about the identification by reason of the first four factors mentioned above, I am satisfied that [W] has been honest and that she has reason for knowing it was the two accused and had the opportunity to identify them, not only initially, but also during the course of actions which followed.[30]
[30] Ibid, [132]-[134].
As to the effect of there being no ‘in-dock’ identification of the appellants, I accept the submissions of counsel for the respondent that, in the circumstances of this case, ‘to have required [W] to conduct an in court identification would have been unnecessary and would have completely undermined the process by which she gave evidence’. W gave evidence via CCTV due to a combination of her cultural background, which makes the court environment particularly stressful and artificial, and the nature of the offences she alleged. The trial Judge gave due consideration to the manner in which W gave evidence, the means by which it was given and, more importantly, the effect of those factors on W’s reliability and credibility.[31] No injustice was occasioned by the absence of an in-court identification. Indeed, as the respondent submits, such an identification would have done no more than visually confirm what was plain from W’s evidence as to the identity of her alleged attackers.
[31] See eg ibid, [24]-[26], [30]-[42].
I would refuse permission and dismiss this ground.
Were the verdicts unreasonable and unsupported by the evidence?
Both appellants contend that the verdicts of guilty are unreasonable and cannot be supported having regard to the evidence. In support of their submissions, they point to the following deficiencies in the prosecution case:
·there was no independent support for the complainant’s evidence;
·the complainant sustained no external or internal injuries;
·there was no semen in the swabs taken from the complainant within 24 hours of the alleged rapes; and
·the actual description by the complainant as to how anal sexual intercourse allegedly occurred was lacking in cogency.
In addition they submit that the complainant is an unreliable witness. In support of their submission they point to the complainant’s fragile mental state on the night of the alleged offending and that the allegation of anal rape was first made by the complainant in February 2006, 12 months after the alleged incident.
Those matters were at the forefront of the trial Judge’s considerations in arriving at her verdict. The trial Judge considered submissions about the complainant’s mental health and about her reliability. She considered all aspects of the complainant’s evidence in great detail. It was open to the trial Judge to accept the complainant as a truthful and reliable witness.
The fact that W’s evidence was uncorroborated was a matter to which the trial Judge had regard. The absence of forensic evidence such as physical injury or the presence of semen, in circumstances such as existed, does not render the trial Judge’s verdict unreasonable.[32] W’s evidence about anal intercourse, the delay in its report and the inconsistencies that arose were specifically addressed by the trial Judge.[33] Her conclusions and findings in respect of those issues and inconsistencies were open and justified. The trial Judge dealt, at length, with the issues concerning W’s general mental health and her particular mental state on the night of the incidents.[34]
[32] See ibid, [93], [100]-[102].
[33] Ibid, [144]-[150].
[34] Ibid, [34]-[41], [57].
In relation to the complainant’s mental state on the night in question, counsel for R on the appeal sought to rely on fresh evidence. Counsel tendered a report of Dr Raeside, dated 11 October 2007. Dr Raeside is an experienced Forensic Psychiatrist. Dr Raeside prepared this report having regard to the reasons of the trial Judge and copies of W’s medical notes. It was submitted that Dr Raeside’s opinions are inconsistent with the findings of the trial Judge in relation to the diagnosis of the complainant’s mental illness and whether she was properly medicated at the time of the offences.
Dr Raeside is of the opinion that the medical notes confirm a diagnosis of schizophrenia. At the outset of her discussion of the complainant’s mental health, the trial Judge said:
There was no evidence before me of any specific diagnosis made of her [W], save for reference made to this condition [schizophrenia] by Dr Bagar to which I will refer.[35]
[35] Ibid, [35].
Later, she said:
So far as diagnosis is concerned, [W] appears to suffer from “mental psychosis” which is likely to be schizophrenia. The symptoms of the condition, which [W] recognises and acknowledges, are that she can sometimes hear things that aren’t there and can sometimes see things that aren’t there.[36]
[36] Ibid, [37].
Dr Raeside is of the opinion that on the night of the offences, and the weeks leading up to that night, W was receiving less than the required dosage of the medicines she was required to take in relation to her psychotic symptoms. The trial Judge set out the evidence relating to the medicine W received, which was administered through injections.[37] She found that, ‘On that night, [W] was up to date with her medication’.[38] The finding was consistent with the undisputed expert medical evidence on this topic presented at trial.[39]
[37] Ibid, [36]-[37].
[38] Ibid, [38].
[39] Ibid, [36].
In my view, whilst the opinion expressed by Dr Raeside in relation to the complainant’s medication is inconsistent with the evidence presented at trial and accepted by the trial Judge, I do not regard Dr Raeside’s opinions in relation to diagnosis as being inconsistent with the findings of the trial Judge. The trial Judge accepted that W likely suffered from schizophrenia, notwithstanding that that diagnosis could not be confirmed.
Dr Raeside concluded:
However, having so said, it is unlikely that someone would hallucinate a sexual assault upon them. If so then they would be very unwell (likely in need of hospitalisation). Hallucinations more commonly relate to hearing voices or possibly seeing something. Physical or somatic (including sexual) hallucinations can occur, but usually represent a much more severe psychotic disorder.
…
Therefore whilst the credibility and reliability of a psychotic complainant should come under greater scrutiny it does not necessarily follow that someone who suffers from a psychotic disorder, even when acutely psychotic, would be unable to provide accurate and credible information.
The trial Judge’s review of the evidence surrounding the complainant’s mental state was extensive. She was aware that W suffered from serious and varied psychiatric symptoms, in respect of which she required medication. The trial Judge observed W giving evidence. There is nothing in Dr Raeside’s report to warrant interference with the trial Judge’s findings in respect of the reliability and credibility of W in relation to her recount of the assaults against her and as a witness generally. Dr Raeside’s conclusion supports the position that the findings of the trial Judge were open to her, she having considered the evidence of the complainant and observed her giving evidence. I accept the submission made by counsel for the respondent that a miscarriage of justice has not been occasioned by virtue of evidence not being received from Dr Raeside at trial.
Counsel for R submits that the trial Judge’s findings in respect of how the second man, R, entered the house are inconsistent. At paragraph 69 of her reasons, the trial Judge states:
… I am satisfied beyond reasonable doubt that one man came through the window and the other through the door.
Later, at paragraph 85, she says:
I am not able to make any finding as to how the second person came in the house and into her bedroom, except to say it was not through the window of her bedroom. I am unable to find on the evidence whether an external door was forced, (there was no evidence either way on this) or whether one of the external doors had not been locked and it was simply opened.
Counsel submits that the two passages demonstrate an inconsistency in the trial Judge’s analysis of the evidence.
At paragraph 85 the trial Judge is concluding a detailed analysis of the evidence concerning whether any of three doors of the house, being two external doors and W’s bedroom door,[40] were locked. As her reasons indicate, the evidence on this topic was confused and, in parts, inconsistent. She concluded that she cannot find how the second man entered the house so as to enter W’s bedroom, whether it was via an unlocked external door or whether one of the external doors had been forced. The finding relates to how the second man came into the house. Although paragraph 69 falls under the heading, ‘Entry into the house’, that paragraph is part of the trial Judge’s specific discussion of the evidence concerning how each man entered W’s bedroom. In the context of that discussion, the trial Judge firstly referred to testimony in which W said she remembered seeing the second man, R, in the doorway of her bedroom.[41] She then moved to consider evidence given by W that both men entered her bedroom via the bedroom window,[42] which was inconsistent with W’s evidence that R entered via the bedroom door. The trial Judge concluded:
… [A]t the end of this topic of cross-examination, she reaffirmed that the first man had come through the window and the second had come through the door (T181).
This line of cross-examination revealed that she did not dispute what she had told the police officers and also Dr Bagar, that it was either the “two” of them or “they” came through the door and through the window. Again, in my view, this was an example where it is only upon specific questioning that [W] differentiates the plural from the singular. Notwithstanding this apparent inconsistency, I am satisfied beyond reasonable doubt that one man came through the window and the other through the door.[43]
[40] Ibid, [70].
[41] Ibid, [62]-[63].
[42] Ibid, [65]-[67].
[43] Ibid, [68]-[69] (emphasis mine).
At paragraph 69 of her judgment, the trial Judge was referring to the manner by which R entered W’s bedroom, whereas at paragraph 85, she was dealing with the issue of how R entered the house. This is evident from the fact that, in considering the evidence as to how R entered the house, the trial Judge said that she could not make any findings as to how this happened, ‘except to say it was not through the window of her bedroom’.[44] I reject the submission that the trial Judge’s reasons demonstrate that she has reached contradictory conclusions.
[44] Ibid, [85].
Counsel for R submits that, in dealing with the consequences of there being no evidence of physical injury or semen consistent with W’s allegations, the trial Judge reversed the onus of proof and misinformed herself as to the effect of the lack of forensic evidence. Having considered the scientific evidence from the examination of W conducted by Dr Bagar, the trial Judge said:
Doctor Bagar said that the absence of an abnormality on examination of a mature female adult such as [W] did not exclude sexual assault as having occurred. Doctor Bagar also said in cross-examination that a case of anal penetration would be more likely to show some evidence of tearing, bleeding, and soreness, than if there was a vaginal penetration. Nothing further was put to her which suggested that her finding of “no abnormality” excluded anal penetration. There was therefore nothing to exclude the sexual assaults having occurred as described by [W].[45]
[45] Ibid, [143].
Counsel submits that the last mentioned sentence demonstrates an error in the manner Her Honour dealt with the evidence. He submits the appropriate conclusion would have been in terms such as these:
‘Notwithstanding a medical investigation within 24 hours and in circumstances when support especially of the anal allegations might have been forthcoming and where detection of semen might have been expected, there is nothing to support the complainant’s allegations’.
He also refers to the trial Judge’s conclusion in respect of whether, if W was kicked, as she claimed in the course of the assaults, the resultant injuries would have been apparent on the subsequent medical examination. The trial Judge said:
Bearing in mind that [W] is Aboriginal with dark skin, I am not prepared to infer that the external examination of her less than 24 hours later should have revealed bruising or other overt signs of kicking. There is no substance in an allegation of inconsistency by virtue of the external examination conducted by Dr Bagar.[46]
[46] Ibid, [93].
Counsel submits the trial Judge has misinformed herself as to the proper issue falling for determination, which should have been: ‘Does the absence of physical signs cause me (the trial Judge) to doubt the allegations of the complainant?’
In my view, these criticisms are semantic not substantive. When the remarks of the trial Judge are considered in the context of the evidence she was analysing it is clear that Her Honour was reviewing the lack of corroborative forensic evidence recovered from the medical examination for the purpose of determining whether such evidence should cause her to doubt the reliability of W’s testimony. She did not misplace the burden of proof. On the contrary, it is evident that the trial Judge was reviewing the forensic and medical evidence in order to determine whether it cast any reasonable doubt on W’s evidence and thereby the Crown case. The trial Judge determined that the lack of forensic evidence, whilst not supporting W’s testimony, did not obviate her testimony as to how the assaults were committed. Putting it another way, the inconclusive results of the medical examination of W did not lead the trial Judge to doubt the credibility and reliability of W. That course was open to her.
The thrust of the complaint made by the appellants as to why the verdicts against them are unreasonable is that the trial Judge did not place sufficient weight on the lack of evidence corroborating W’s testimony. The trial Judge addressed, in detail, the matters which the appellants say were not given due weight. She was well aware of the absence of corroborating evidence. Notwithstanding the absence of evidence supporting the complainant’s testimony, the trial Judge was satisfied that the charges had been proved, largely, on the basis that W’s evidence in respect of the identity of her attackers and the manner in which intercourse took place was reliable and credible. The trial Judge observed and heard W giving evidence. She provided detailed reasons as to the manner in which this evidence was given.[47] It is clear that the trial Judge based her verdict on a careful consideration of W’s evidence, having regard to W’s character and circumstances.
[47] Ibid, [19]-[29].
The appellants have failed to demonstrate that the trial Judge neglected to take account of the absence of corroborative evidence and the inconsistencies now raised on appeal. More importantly, the appellants have failed to show that it was unreasonable for the trial Judge to accept the complainant’s evidence on the bases she did. I would dismiss this ground in relation to each appeal.
Whether the verdict is unsafe and unsatisfactory due to the alleged incompetence of trial counsel
The fact that the trial Judge’s verdicts were open on the case before her does not dispose of R’s appeal as he contends the verdict is further rendered unsafe by virtue of his counsel’s failure to properly investigate and lead evidence in conducting his defence. R also complains that the verdict against him is rendered unsafe and unsatisfactory having regard to the failure of the Crown to lead certain evidence.
It is settled law that, as a general rule, a defendant is bound by counsel’s decisions and conduct of the defence,[48] otherwise the adversarial system by which criminal trials are conducted in this country could not function. As Gleeson CJ said in Nudd v R:[49]
A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue.[50]
[48] See, R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ).
[49] (2006) 225 ALR 161.
[50] Ibid, 164 [9].
The Chief Justice later observed:
The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions.[51]
[51] Ibid.
Exceptions to the general rule arise where the manner in which counsel has conducted the trial has caused or contributed to a miscarriage of justice. In determining whether counsel’s conduct has effected such a miscarriage, I adopt what was said in this Court by Gray J, with whom Nyland and Bleby JJ agreed, in Heeremans.[52] In that case, having considered the principles relating to appeals based on the failings or incompetence of trial counsel as identified by the then Chief Justice of New South Wales in Birks,[53] Gray J summarised the relevant principles having regard to the High Court decisions in Nudd,[54] TKJW v The Queen[55] and Ali v R,[56] as follows:
The question of whether counsel's conduct produced a miscarriage of justice should, in most cases, be considered by reference to an objective standard, and without investigation of the subjective reasons for that conduct.
The critical question is not whether counsel has erred in some way, but whether a miscarriage of justice has occurred. Conduct of counsel at trial may be relevant to that issue but not determinative given the wide discretion that counsel has in the conduct of a case.
The evaluation that has to be made is whether the conduct in question produced a miscarriage of justice - whether the conduct deprived the appellant of a chance of acquittal that was fairly open.
The fact that new counsel, upon review of the trial transcript may have conducted the case differently does not warrant the intervention of an appellate court. Nor does the fact that different counsel may have made different forensic decisions amount to a reason for intervention by this Court.[57]
[52] R v Heeremans (2007) 249 LSJS 49.
[53] R v Birks (1990) 19 NSWLR 677.
[54] (2006) 225 ALR 161.
[55] (2002) 212 CLR 124.
[56] (2005) 214 ALR 1.
[57] R v Heeremans (2007) 249 LSJS 49, 59 [76]-[79] (citations omitted, emphasis mine).
These principles were more recently discussed by this Court in Hughes.[58] Duggan J said:
Appeals based upon the incompetence of defence counsel at the trial have become more common in recent years. Various adjectives have been used in the course of argument on these appeals to describe the level of incompetence alleged. However, as the authorities make clear, the essence of the appeal consists not in the degree or nature of the conduct as an end in itself, but whether the actions or omissions of counsel resulted in a miscarriage of justice.[59]
[58] R v Hughes [2007] SASC 318.
[59] Ibid, [47]. See further [48]-[55].
Gray J also observed:
The High Court has recently considered whether miscarriages of justice arose as a result of counsel’s incompetence in three recent decisions: Ali, TJKW and Nudd. These authorities establish that the ultimate question to be answered is whether, viewed objectively, proven conduct gave rise to a material risk of a miscarriage of justice.[60]
[60] Ibid, [68].
In determining whether the principle that a defendant should be bound by the conduct of his or her counsel applies, the question to be asked is whether counsel’s conduct has produced a miscarriage of justice.[61] Has the accused been deprived of a chance of acquittal which would, but for the actions or inactions of counsel, have been reasonably and legitimately open? The fact that, with hindsight, counsel would have made different tactical or forensic decisions in conducting the case is not a sufficient basis to overturn a conviction.
[61] See TKWJ v The Queen (2002) 212 CLR 124, 149 [79] (McHugh J); Ali v R (2005) 214 ALR 1, 6 [18] (Hayne J); R v Hughes [2007] SASC 318, [74].
The particulars of R’s appeal on this ground are extensive. In summary, R complains that his trial miscarried as a result of his counsel’s failure to lead evidence and make submissions about W’s mental health, her description of the offences committed against her and the time at which they occurred, whom she had contact with following the offences, the consequences of the absence of forensic evidence and, the investigation of the alleged offences by police and other agencies.
I have discussed the evidence concerning W’s mental health earlier in these reasons. The evidence revealed that she received medication for symptoms of schizophrenia prior to and at the time of the alleged offences. Evidence concerning whether W was affected by her mental illness at and around the material time was led from Dr Bagar. Dr Bagar testified that W had told her she was hearing female voices, which were “telling her to go bush, keep away” and to keep “away from those boys”.[62] The evidence was consistent with the effect that assaults of the kind alleged would have on a young Aboriginal woman who suffered from mental illness.
[62] R v R, R & Anor [2007] SASC 71, [38].
Defence counsel at trial had copies of W’s medical notes. W was cross‑examined about her mental health and whether she was ‘hearing noises’ at and around the time of the offences alleged. She was asked the following questions:
QI want to ask you about your health. You have to go to the clinic regularly to have injections in your arm, don’t you.
AYes.
QAnd you’ve been needing those injections for a number of years now; is that right.
AYes.
QAnd sometimes you don’t go to the clinic to get your injections when you’re supposed to; is that right.
AYes.
…
QI’ll just ask you again. You have to have those injections because if you don’t, you hear things that aren’t there; is that right.
ASometimes I have tablet form the sister.
QI just want to talk about the injections. Isn’t it the case that you have to have the injections because if you don’t, you hear things that aren’t there; is that right.
AYes.
QAnd you also have to have the injection because sometimes you see things that aren’t there; is that right.
AYes.
QYou told us yesterday that on the night this bad thing happened, you heard some noise outside; is that right.
AYes.
QAnd that you told us that you heard some stones being thrown on the roof; is that right.
AYes.
QAnd that it was a windy night.
AYes.
QAnd you were getting a bit frightened; is that right.
AYes.
QIs this one of those times that you were hearing things that weren’t there.
AYes.
This evidence was considered by the trial Judge.[63] Even if defence counsel could be criticised for not sufficiently exploring the topic of W’s mental health, the trial Judge’s reasons demonstrate that she had careful and extensive regard to W’s mental state at the time of the alleged incidents and in respect of her mental health generally. It is apparent from the trial Judge’s reasons that the mental health of W was at the forefront of Her Honour’s mind in arriving at her verdict. Indeed, her findings on the topic were favourable to the defence. In such circumstances it cannot be said that counsel’s failure to further enquire into W’s mental health adversely affected R’s chance of acquittal.
[63] Ibid, [36].
R complains that his counsel failed to fully explore the inconsistencies in and, for want of a better term, ‘unlikelihood’ of the rapes occurring in the manner W alleged. R specifically refers to the conduct of his defence in respect of W’s assertions that the rapes were simultaneous.
The trial Judge expressly commented on the manner in which W gave evidence and the difficulties she faced in giving evidence on these topics, given W’s limited education and cultural background.[64] W was cross-examined in relation to the inconsistencies in her evidence regarding whether the rapes occurred simultaneously. She was asked the following questions:
[64] See ibid, [31], [140], [144]-[150].
Q I want to ask you a couple of questions about the bad thing that happened to you.
A Yes.
QYou told us yesterday that both of these men put their penis inside you; is that right.
AYes.
QThe first man, the man who said his name was [L], you said - and correct me if I am wrong - that he put his penis in your middle hole; is that right.
A Yes.
QAnd that the second man put his penis in the hole where the poo comes out; is that right.
AYes.
QDid this happen at the same time.
OBJECTION: MS MCDONALD OBJECTS
MS MCDONALD: There is a real fundamental problem with that question.
HER HONOUR: That presents a problem about what is meant by 'the same time'; same occasion.
XXN
QThe man who said his name was [L], was his penis inside you at the same time the second man's penis was inside you.
AYes.
QWhere were you when that was happening.
AI just remember I was laying down when this all happened and then they ran away.
QI will come to them running away in a minute. Do you remember when you were talking to the lady police officer at the Amata Police Station and you gave her your clothes - you remember that.
AYes.
QDo you remember telling her that the man who was called [L] had put his penis inside you first and then the second man put his penis in you after [L] had finished.
OBJECTION: MS MCDONALD OBJECTS
[…]
OBJECTION WITHDRAWN
HER HONOUR: Do you want the question to be put again.
QUESTION READ BY REPORTER
AYes.
XXN
QSo did it happen the men put their penis in you at the same time or one after the other.
A The second one was later.
It is apparent from this cross-examination that W had difficulty understanding the meaning of simultaneous and ‘at the same time’. The issue was nevertheless explored by counsel. The trial Judge specifically dealt with the inconsistencies and delay in respect of W’s allegation that she was subjected to anal sexual intercourse.[65] I do not consider the manner in which defence counsel approached the issues arising in relation to anal intercourse caused the trial to miscarry.
[65] Ibid, [139], [144]-[150].
R made complaints in respect of his counsel’s failure to more fully explore evidence tending to show W was confused as to when the incidents she alleged took place. The evidence impugned was that concerning whether W was watching the television show ‘Blue Heelers’ on the night in question and what time of year it was. On any view of the evidence, these matters were peripheral. It cannot be suggested that a miscarriage has been effected by counsel’s failure to explore such issues at length.
R further complains about his counsel’s failure to cross-examine W on inconsistencies between her evidence at trial and her answers to Senior Constable Brumpton’s questions, during the interview conducted in late February 2006, in relation to whom W spoke with and her movements following the offences. W told Senior Constable Brumpton that after the offences she went to her friend’s place, K. W was asked the following questions:
QOkay. What did you do for the rest of that night after they left.
AI went to my friend’s place.
QMm hm.
AOne lady
QWhat’s your friend’s name.
A[K].
Q[K]. What did you say to her.
AI used to, before, I used to talk about um family.
QOkay. Did you tell her what they did to you. Did you tell her what [R] and [L] had done to you.
AI told her ‘I’m gonna go to the clinic and tell the doctor’.
QMm hm.
AWhat happened.
QMm hm.
AShe, the sister, doctor, was writing my name and that on the paper.
QYeah.
AThe lady had black hair and she’s the one that helped me. She’s a good lady.
QOh good. Okay. All right.
AShe, the lady was the one that got the police and we went to the place and we had a cup of tea and then, then we started talking…
It was not W’s evidence at trial that she spoke with K prior to attending the clinic. The trial Judge summarised W’s evidence in respect of her movements after the offences as follows:
[W]’s evidence was that after she had been assaulted, she went to the store and stayed there until the sun came up. She said she went there because she was in a lot of pain and she couldn’t sleep properly. She said that in the morning she went straight to the clinic.[66]
[66] Ibid, [54].
In a statement made to police on 16 March 2006, K states that she was in Adelaide at the material time and was not contacted by W. K was not called as a witness at trial. The record of interview between W and Senior Constable Brumpton was tendered by the defence, however, the inconsistency between W’s statements during the interview about going to K’s place and her subsequent evidence at trial was not the subject of cross-examination. Counsel for R on appeal submits that had this issue been explored during cross-examination it would have further revealed W’s delusional mental state at and around the material time so as to cast doubt on the reliability of her evidence. I agree that cross-examination on this topic would have likely elicited further evidence of W’s mental ill health. But this was not a case in which W was accepted as a mentally stable witness and evidence tending to show she suffered from delusional episodes not explored. As I have said, the trial Judge was aware that the complainant suffered from mental psychosis, the symptoms of which included delusions about sights and sounds. The trial Judge was also aware that there were a number of inconsistencies in W’s evidence, including inconsistencies as to the presence of family members at and around the time of the offences,[67] about which I will say something further later in these reasons, the date on which the offences occurred[68] and the general temporal connection and sequence of events relating to and arising out of the offences.[69] Her Honour took these matters into account in determining W credible and her evidence reliable.
[67] Ibid, [51], [109]-[112].
[68] Ibid, [50]-[56].
[69] See ibid, [108].
Given the inconsistencies in W’s evidence with which the trial Judge dealt, and her review of the complainant’s mental health, both generally and at the time of the offences, it cannot be concluded that defence counsel’s failure to explore the inconsistency between W’s record of interview and her evidence-in-chief about visiting K has deprived R of a chance of acquittal which would otherwise have been reasonably and legitimately open to him. In my view, defence counsel’s failure to cross-examine in respect of this issue has not caused a miscarriage of justice.
I turn now to the complaints made in respect of the way in which counsel dealt with the absence of corroborative forensic evidence. Essentially, no forensic evidence was recovered from either the medical examination of W or the alleged crime scene in and around her home. The complaint is that counsel failed to properly explore the consequences of there being no supporting forensic evidence. Counsel refers specifically to the fact that a medical examination yielded no forensic evidence in the form of semen or injury, that W’s bedding was not analysed despite being available for testing, and the general condition of W’s underwear, particularly her bra, which was soiled and torn, was such that it was incapable of supporting W’s allegations.
In general, I accept the submissions made by counsel for the respondent that defence counsel explored these topics to the extent they deemed appropriate and, to the extent that the line of enquiry was not further pursued, it did not detract from the appellant’s chances of acquittal. The critical point however is that all the forensic matters which the appellant says his trial counsel did not adequately explore were considered by the trial Judge in detail in her reasons for verdict. In the course of her reasons, she dealt with the consequences of no semen or physical injury being revealed by the examination,[70] the scientific evidence in relation to W’s clothing,[71] and the failure to examine the crime scene.[72] In cases such as this, where the gravamen of the defence is that the testimony of the complainant cannot support conviction in the absence of corroborating evidence, it is incumbent on the trial Judge to consider the lack of corroborating evidence and the reasons for its absence. The trial Judge’s reasons demonstrate that she had regard to all the deficiencies in the Crown case arising from the absence of corroborating evidence.
[70] Ibid, [90]-[93].
[71] Ibid, [95]-[102].
[72] Ibid, [113].
As to the complaints made about the conduct of the defence in relation to the investigation of the alleged offences by police and other agencies, the appellants’ primary complaints relate to when W first complained of these incidents and whether her family, particularly Uncle Donald Winimar, were present at the house at the time of the offences, or whether W’s statements that they were present evidenced hallucinations on her part. I take the same view in respect of these complaints as I did in respect of those relating to the forensic evidence. The submissions made on appeal about the points in respect of these matters that trial counsel should have raised, were raised and, ultimately, were considered by the trial Judge.
Evidence concerning the first complaint made by W in respect of these offences and to whom such complaint was made, was not led by the Crown as evidence of recent complaint, largely due to the fact that Nurse Mills, to whom W said she had first complained at the clinic, died before the trial commenced. The evidence was not relied upon by the Crown. I have said something about this previously, in relation to the first ground of appeal.
As to the evidence concerning whether W’s family and Uncle Donald were present at the home at the material time, the inconsistencies in W’s evidence may, at least partly, be related to W’s mental condition which, as I have said, was properly and thoroughly considered by the trial Judge. Uncle Donald was not called because he too was deceased by the time the trial commenced. The pertinent points concerning W’s evidence about the actions of Uncle Donald and the absence of her family members from the home were raised by counsel and considered by the trial Judge.[73] There is nothing to suggest the way in which these matters were dealt with, or not dealt with, by counsel occasioned a miscarriage.
[73] Ibid, [105]-[112].
The inadequacy of the police investigation
Counsel for R complains that the police investigation was inadequate. Many of the complaints relate to the failure of the police to conduct more extensive forensic examinations and to the collection and preservation of exhibits. The trial Judge dealt in detail with the forensic evidence and any deficiencies in that evidence, and with the failure to conduct more extensive inquiries. In considering the complaints of R, regard must be had to the difficulties confronting investigators when alleged offences are committed in remote areas and in circumstances such as existed in this case.
Counsel for R does not submit that any failures on the part of the police to conduct a full and complete investigation, standing alone, should result in the convictions being set aside. The gravamen of counsel’s complaints is that the lack of such evidence and the failure of counsel to highlight the deficiencies in the police investigation resulted in the trial Judge falling into error. Counsel submits that the lack of evidence independent of W is so significant that the conviction of R is unsafe and unsatisfactory. I have dealt with the specific complaints in this regard earlier in these reasons.
Assuming that there were failures by the police to investigate all relevant matters, that failure alone does not justify the conviction of R being overturned.
In Penney v R,[74] Callinan J, with whom McHugh, Gummow, Kirby and Hayne JJ agreed, said:
There is no doubt that the police investigation was unsatisfactory in some respects. However, these defects were fully exposed to the jury in cross-examination and the address to the jury by the appellant’s counsel. There was some reinforcement of the criticism of these defects by the accurate summary of the defence submissions to the jury by the trial judge.
…
… [T]here is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial.[75]
[74] (1998) 155 ALR 605.
[75] Ibid, 609 [17]-[18].
Those comments are apposite to this case. Before a conviction will be overturned on the ground of an unsatisfactory police investigation, it must be established that the accused was thereby deprived of a fair trial.
Counsel for R at trial was aware of the alleged deficiencies in the investigation. They were addressed by the trial Judge in her reasons. R was not deprived of a fair trial.
In respect of the complaints made by R about the conduct of the Crown case, much of what I have said above is apposite, as R complains that the Crown failed to lead appropriate evidence in relation to W’s mental health, the investigation conducted by the relevant authorities and the findings from forensic examinations.
In The Queen v Apostilides,[76] the High Court determined that it is for the Crown alone to decide whether a particular witness will be called to give evidence for the prosecution.[77] In so holding, the Court approved and adopted what was said in relation to the role and responsibility of the prosecution in respect of the calling of witnesses in Richardson v The Queen,[78] where the Court (Barwick CJ, McTiernan and Mason JJ) said:
Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few.
What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and, in the light of those factors, to determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused. It is in this sense that it has been said that the prosecutor has a discretion as to what witnesses will be called for the prosecution. But to say this is not to give the prosecutor's decision the same character as the exercise of a judicial discretion or the exercise of a discretionary power or to make his decision reviewable in the same manner as those discretions are reviewable. In the context the word ‘discretion’ signifies no more than that the prosecutor is called upon to make a personal judgment, bearing in mind the responsibilities which we have already mentioned.[79]
[76] (1984) 154 CLR 563.
[77] Ibid, 575.
[78] (1974) 131 CLR 116.
[79] Ibid, 119.
It is not suggested in this case that the prosecution failed to make full and proper disclosure to the defence of evidence relevant to the charges. I accept the submission made by counsel for the respondent that many of R’s complaints about the manner in which the Crown case was conducted have the effect of obliging the prosecution to call evidence for the purpose of simply undermining W’s credibility in circumstances where the evidence was not disputed or could not be tested, due to the death of witnesses. The Crown is not required to call evidence simply to assist the defence case. As Dawson J observed in Whitehorn v The Queen,[80] the Crown is merely bound to present all reliable and credible evidence necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based.[81]
[80] (1983) 152 CLR 657.
[81] Ibid, 674. See also 664 (Deane J).
Critically, as the Court held in Apostilides:
A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.[82]
[82] The Queen v Apostilides (1984) 154 CLR 563, 575.
In relation to the formulation of this proposition, the Court went on to say:
… [W]e have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness.[83]
[83] Ibid, 577.
Counsel for R submits that, at trial, the prosecution did not fulfil its duty to present all credible and reliable evidence necessary to unfold the narrative of events upon which the prosecution was based. Counsel submits that the prosecution should have led evidence of medical progress notes from the Amata Clinic relating to W, together with statements given to police by Nurse Mills, as this material was directly relevant to matters in issue at trial.
Counsel for R on appeal tendered the medical progress notes, which he says the prosecution should have led at trial. The progress notes are a running-log of W’s attendances at the Amata Clinic. The notes appear to have been prepared by Nurse Mills. An entry dated 15 February 2005 indicates that W attended the clinic and said she was worried that she may have contracted a sexually transmitted disease. The entry goes on to disclose W’s assertions about her sexual relationships with two men in Amata. On 17 February 2005, the day of the offending, a further entry is recorded, the next in sequence. W indicates that she wants to leave Amata. She says she is in a sexual relationship with two men who force her to have sex against her will and who, if she refuses, throw sticks and rocks at her.
In conjunction with these notes, counsel referred to two statements of Nurse Mills given to police in relation to these offences prior to her death. The statements expand upon the information recorded in the progress notes. In the first statement, dated 18 February 2005, Nurse Mills states that W attended the clinic on 15 February 2005 and the following conversation took place:
She said “I am worried I might have something”.
I said “Do you have any symptoms?”
She said “No I don’t have any symptoms”.
I said “Do you have a partner?”
She said “There’s a half cast one, and two Aboriginal ones”.
I said “Where are they from?”
She said “The half cast one is in Alice Springs and the Aboriginal ones are in Amata”.
I said “How do they treat you?”
She said “The half cast one is alright”.
I said “What about the other two?”
She said “Wiya, no good, they treat me bad way”.
After the conversation, Nurse Mills conducted some medical tests. She told W to come back in a week for the results, or earlier if she wanted to talk about anything else.
W next attended the clinic on 17 February 2005. The following conversation took place:
I said “How are you [W]?”
She said “I want to leave Amata, but I don’t know how to leave”.
I said “Ok, what’s the story with these two blokes?”
She said“I live in my grandmother’s house with the two men. They call me into the bedroom one at a time. They say pitja (come here), and I have to go into the room to have sex with them.”
I said “What happens if you say no?”
She said “If I’m sick or I say no, I’m hit with rocks and sticks”.
Nurse Mills does not recall at what point in the conversation she asked, but at some stage she asked W:
I said “What are the two men’s names?”
She said “[L] and [R], they are two brothers”.
The conversations related by Nurse Mills in her statement of 18 February are consistent with the progress notes she recorded in relation to those attendances.
In an addendum statement made by Nurse Mills on 9 December 2005 she states that she noticed W ‘hanging around’ the clinic on 14 February 2005. Nurse Mills states that W gave her ‘the impression that she wanted to come in and see somebody’, but she said W did not come in because ‘she appeared anxious and timid and unable to take the step inside’. She says she approached W to inform her that she was welcome to come inside and talk to someone if she wished. W refused. Nurse Mills states she indicated that W could come and talk to someone at any time. She then further discusses W’s attendances on 15 and 17 February 2005. Nurse Mills repeatedly states that W’s demeanour, on all these attendances, was one of anxiety and trepidation and removal. She states that she constantly had to attempt to put W at ease.
The progress notes and the statements of Nurse Mills were not tendered at trial. Copies were provided to defence counsel, but they were not the subject of cross-examination.
Counsel for R submits that the prosecution should have led this material or, in the alternative, defence counsel should have adduced this evidence and cross‑examined on it. Counsel submits that these materials go to the question of whether W concocted the accusations against the appellants out of concern that they were exposing her to sexually transmitted diseases in the course of a consensual sexual relationship.
The prosecution was bound to disclose this material to the defence, which it did. To require the prosecution to have led this evidence, putting aside questions of relevance and admissibility, would have obliged the Crown to present evidence impugning the credibility of its witness, the prosecution having presented her as a credible and honest witness. Prosecuting counsel was under no duty to lead the evidence.
I turn to the alternate contention that these materials should have been adduced and cross-examined on by defence counsel. In the affidavit of trial counsel for R, tendered and received by the Court on appeal, counsel deposes to the following in respect of the history given to Nurse Mills by W that the appellants were living with W and would physically abuse her if she did not accede to their demands that she have sex with them:
Nurse [M] was deceased at the time of trial and [R]’s instructions were that he denied this assertion. As I did not know what the Complainant’s evidence would be on this topic if pressed in cross examination; this factor, coupled with the inherent caution involved in accepting ex facie the Appellant’s instructions; I determined that there was more potential for damage arising from any exploration of this topic as opposed to any benefit gained from what was yet another of the Complainant’s inconsistencies.
The decision not to cross-examine in relation to the notes and statements of Nurse Mills was a forensic tactical decision made by trial counsel. In my view, having regard to the content of Nurse Mills’ statements and progress notes, it was wholly reasonable for counsel at trial to adopt that course and decide not to explore these materials. As Kirby J observed in Nudd:
In criminal appeals, courts are alive to the dangers of retrospective wisdom and appellate hindsight applied to instantaneous professional judgments that have to be made, often in fraught circumstances.[84]
[84] Nudd v R (2006) 225 ALR 161, 183 [80].
An appeal court will not simply interfere because hindsight shows that, perhaps, a different approach may have produced a different outcome. As the authorities make clear, the question is whether a miscarriage of justice has been occasioned by counsel’s forensic decision.
Counsel for R submits the evidence from Nurse Mills’ notes and statements tends to show that W was unhappy in her relationship with the appellants and endeavoured to end it by means of concocting false accusations of rape. Looking at this case as a whole, I cannot accept that submission as a reasonable interpretation of the evidence. This is a case in which the circumstances of the offending and the personal characteristics of those involved, particularly the complainant are paramount. As has been said, W is a young Aboriginal woman for whom discussing sexual matters, particularly with strangers of a different ethnicity in western settings, such as medical clinics, would be unusual, confronting and unnerving. The progress notes taken by Nurse Mills, which are clarified by the conversations she had with W, as revealed by her statements, indicate that in and around the days leading up to the offences the complainant harboured concerns about the sexual relationships in which she found herself. It was not suggested at trial that W was or had been in a relationship with R or L. To the extent that these materials suggest she was in such a relationship, her statements to Nurse Mills indicate that the appellants subjected her to physical abuse if she did not comply with their commands to engage in sexual intercourse. The material authored by Nurse Mills tends to show that the offences of 17 February 2005 were the first W reported in a series of sexual assaults upon her. In my view, defence counsel’s decision not to cross-examine on these materials did not deny R a real chance of acquittal.
Conclusion
The gravamen of the complaints made on both appeals relates to the manner in which the consequences of the absence of corroborative evidence, and the reasons for its absence, were presented by counsel and considered by the trial Judge. However, the appellants have not shown that the trial Judge erred in finding W to be a reliable and credible witness. They complain that the trial Judge did not place sufficient weight on the absence of corroborating evidence, which they contend is partly the fault of Her Honour and partly that of counsel, but, apart from the complaints relating to psychosis, they have not submitted any reasons why it was not open to the trial Judge to accept W’s testimony. In my view, the trial Judge gave full and proper consideration to the inconsistencies in the evidence and the lack of supporting evidence. The reasons she gave for finding those issues to not adversely affect W’s reliability and credibility are sound.
I would refuse permission to appeal as sought. I would dismiss both appeals.
WHITE J: I agree with the orders proposed by Sulan J and with his reasons. I also agree with the further reasons of Gray J.
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