R v Russom

[2005] VSCA 145

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 17 of 2004

THE QUEEN

v.

BINYAM RUSSOM

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JUDGES:	ORMISTON and VINCENT, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 March 2005
DATE OF JUDGMENT:	9 June 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 145

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CRIMINAL LAW – Conviction – Rape – Indecent assault – Common assault – Corroboration of evidence of accomplice – Number of inconsistencies in the evidence given by victim – Whether trial judge erred in failing to direct the jury on the way in which they may use prior inconsistent statements of victim – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Pullen, S.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M. Kowalski	Causovski Lawyers

ORMISTON, J.A.:

1. Having had the benefit of reading the judgment that Vincent, J.A. is about to deliver, I consider that this application should be dismissed for the reasons he states, subject only to the following observations. 

1. As his Honour points out, the argument as to the warning required for the evidence of the accomplice Ghebrat was “curious”.  A quarter of a century ago a judge would have been warning primarily as to the need for corroboration of the complainant’s evidence, let alone that of the accomplice.  The principal and most detailed account of the matters alleged against the applicant clearly came from the complainant and, in the absence of her evidence or in circumstances where the jury had a doubt about her credibility, it is hardly likely that the jury would have convicted solely on Ghebrat’s evidence.  Nevertheless, Ghebrat was, on the Crown case, an accomplice of the applicant, at least in the sense required for the application of the rule.  The need to give an appropriate direction is accepted as being a rule of practice which “now has the force of a rule of law”.[1] 

   [1]Per Lord Simonds, L.C. in Davies v. DPP [1954] A.C. 378 at 399, recently affirmed by the High Court as being accurate in Jenkins v. The Queen [2004] H.C.A. 57 at para.[27]; 79 A.L.J.R. 252 at 257.

1. If one looks at the various rules requiring corroboration over the years and the manner in which they have been expressed, however, it has generally been assumed that the need to give a direction in terms that it would be “dangerous”, “unsafe” or the like to convict on the uncorroborated testimony of an accomplice (or some other witness considered by the Court to be unreliable) has been based on the assumption that it was possible that the jury might convict on the evidence of that accomplice (or other witness) alone:  see, for example, the language used by the members of the High Court in Kelleher v. The Queen[2].  Of course, the obligation to give an appropriate warning is not confined to cases where the accomplice’s evidence is the only evidence as to the critical events, for the Court cannot know what evidence a jury will not accept and what it will seek to rely upon, but the essence of the standard direction is the jury ought not to convict “upon his evidence” unless they have taken heed of the judge’s warning, to adopt the language used in the leading case of Davies v. DPP, recently approved in Jenkins v. The Queen.[3]  In other words, it is desirable to give a full but appropriate warning where there is an appreciable risk that the jury may use and rely to a significant extent upon the accomplice’s evidence in order to reach a verdict of guilty, but, if that accomplice’s evidence does not stand on its own as the fundamental basis for conviction, the ordinary direction should be tailored in a suitable way.

   [2](1974) 131 C.L.R. 534, in particular per Barwick, C.J. at 540-544 with whom on this issue Mason, J. concurred at 560. Reference to the word “alone” appears throughout, starting with the headnote and see especially at 541. The case concerned corroboration of evidence of a rape victim, but, although that rule has been abolished by statute, the general principles there stated relating to corroboration of an “unreliable” witness for the most part have been seen as generally applicable in all such cases.

   [3]See the citations in fn. 1.

1. The fact that Ghebrat’s evidence might have been seen by the jury as itself confirmatory of the victim’s evidence, rather than the other way around, only serves to emphasise the breadth and significance of what the High Court has recently said about accomplice warnings in Jenkins[4].  As there stated[5], “the law has endeavoured to avoid inflexible rules” on subjects such as the danger of convicting on potentially unreliable evidence and has left it to judges to sum up in the manner “best suited to the facts of the particular case”.  Moreover, as their Honours later said[6]:

   [4]Especially at paras.[25]-[35]; 79 A.L.J.R. 256-258.

   [5]At 256 para.[25].

   [6]At 257 para.[28].

“The fundamental principle is that the trial judge must give the jury proper and sufficient instructions to enable them to decide the real issue or issues in the case.  The circumstances of cases are infinitely various.  To speak of a ‘person who is an accomplice giv[ing] evidence on behalf of the prosecution’ encompasses many different kinds of circumstances.  … It is necessary to take account of this variety.”

Jenkins

is a good example of the broad and flexible application of what seemingly is an inflexible rule of law, the seeds of which can be traced back at least to 1787 (see
& Robbins[7]). 

R. v. Atwood

[7]1 Leach 464; 168 E.R. 334. Although that is the first known example of the desirability of directing juries on the subject, the suspicion with which judges then justifiably viewed an accomplice’s evidence has now been traced back to cases in the 1740’s and to an observation by Hale in his History of the Pleas of the Crown, published in 1736 but written before his death in 1676.  See the detailed discussion by Professor Langbein in The Origin of Adversary Criminal Trial (2003) of what he calls “the corroboration rule” at pp.203-217.  Thus what I said in R. v. Rosemeyer [1985] V.R. 945 at 960-971 (referred to in Jenkins at 257 [27] fn.10) should perhaps be taken back at least a further forty or so years and arguably 100 years, but the desirability of a jury direction appears still to have been first suggested in Atwood’s case. 

1. As was said in Jenkins [8]: 

“The warning to the jury is for the protection of the accused.  The theory is that fairness of the trial process requires it.  It is a warning that is to be related to evidence upon which the jury may convict the accused.”

Although one may doubt whether this was ever a case where the Crown proceeded upon the hypothesis that it might wish to rely on the evidence of Ghebrat “alone” or as the principal witness to the events charged, the trial and the appeal have been conducted upon the assumption that a warning of some kind was necessary.  There is no reason to doubt that the ordinary basis for treating accomplice’s evidence with caution or even disfavour applied to the evidence of Ghebrat, at least to some degree, so that some warning might fairly have been required, albeit tailored to the way in which the totality of the evidence came out.  Even if Ghebrat’s evidence was seen as merely confirmatory, and not as any primary basis for conviction, some caution ought to have been expressed and was expressed by the learned trial judge.  As to what amounted to corroboration, what was here said was sufficient but it is difficult to view the complainant’s evidence as corroborative of evidence such as that given by Ghebrat and any elaborate direction applying technical concepts of corroboration would have been certainly confusing to the jury.  A direction to the jury expressing caution as to Ghebrat’s evidence, therefore, was called for but this was an unusual case and elaborate additional directions may have been counterproductive so far as the accused was concerned. 

[8]At 257-258 para.[30].

1. The application should therefore be dismissed.

VINCENT, J.A.:

1. The applicant was presented before the County Court, on 29 September 2003, on five counts of rape (counts 1, 3, 4, 6 and 8), three counts of indecent assault (counts 2, 7 and 9) and one count of common assault (count 5).

1. He entered pleas of not guilty and a trial was conducted at the conclusion of which the jury returned verdicts of guilty on all counts.

1. The applicant now seeks leave to appeal against each of his convictions on grounds expressed as follows:

(a)That the learned trial judge misdirected the jury on the question of which evidence was capable of amounting to corroboration of the witness Adil Ghebrat [a possible accomplice].

(b)That the learned sentencing judge erred in failing to direct the jury on the way in which they may use prior inconsistent statements of S [the complainant].

Four other grounds set out in the applicant’s Notice of Application for Leave to Appeal have been abandoned and need not be addressed.

The Background

1. The following description of the evidentiary background against which this matter has arisen for consideration has been prepared from the Summary of Evidence provided to the Court, concerning the accuracy of which I understand there is no controversy.

1. The complainant, S, gave evidence that on the evening of Friday, 21 December 2001, she went with friends, including a girlfriend named Michelle, to the Musicbox Lounge, a nightclub in Chapel Street, Prahran.  They arrived at about 10.30 p.m. and left at approximately 1.30 a.m. with the intention of catching a “Night Rider” bus home.  Whilst waiting at the bus stop, they met and conversed with the applicant and his friend, Adil Ghebrat.  S mentioned that she felt cold and the applicant offered her his jacket which she placed around her shoulders.  The bus arrived and Michelle moved towards it whilst S was in the process of returning the applicant’s jacket to him.  As she was doing so, the bus drove off leaving the two young women behind.  S was annoyed, feeling that the driver had not given her sufficient time to board, and aware that it would be quite a while before the next bus arrived.  She resigned herself for the wait and resumed her conversation with the applicant.  He then moved to kiss her and suggested that they “have a talk”, which she took to mean in private.  S agreed and told Michelle that she would only be gone for “two minutes”.  She then went with the applicant in the direction of an alley close to the bus stop.

1. The applicant told S that he “liked” her.  She took this statement as suggesting, in effect, that they engage in some sexual activity and declined his advances with the indication that she was just being friendly.  The applicant responded by becoming aggressive, putting his left hand around her waist and grabbing her left hand behind her.  He placed his right hand over her mouth and pushed her into the alley against a door.  S told him that she wanted to go, and he replied with words to the effect “Shut up or I’ll kill you”.  He then put his hands inside her pants and underpants and inserted his fingers into her vagina.  S stated that she endeavoured to stop him, but was unable to do so (count 1).

1. The applicant indicated that he wanted her to go with him to a landing on a set of stairs located in the alley and she unwillingly complied.  Once there he put his hands under her top and touched her breasts.  She said that she tried to remove them but again could not do so (count 2).

1. He again placed his hands down her pants and put his fingers into her vagina, keeping them there for a period that she estimated as being about three to five minutes.  During this period she was crying and groaning and told him to stop as it hurt (count 3).

1. At this point, S saw Ghebrat coming along the alley.  She called to him to help her.  He came up the stairs, but, instead of providing assistance, told her to “shut up” and covered her mouth with his hands.  He then spoke with the applicant in what S believed to be their native tongue.  Ghebrat asked S to kiss him.  Initially she refused, but agreed to do so when he said that, if she complied, he would let her go.  However, he did not honour this promise and her detention continued (count 4). 

1. Shortly after these events, Michelle also entered the alley.  Observing the scene, she ran up the stairs and urged the two men to release her friend.  However Ghebrat moved towards her and grabbed her by the neck.  S told the applicant that, if Ghebrat let Michelle leave, she would do whatever he wanted.  Ghebrat released Michelle who fell down the stairs and then ran for help (count 5).

1. After Michelle had gone, Ghebrat pulled the complainant’s pants and underpants down to her ankles.  He held her hands behind her back and placed his fingers into her vagina for about three minutes.  The applicant also inserted his fingers into her vagina (counts 6 and 8).

1. The applicant then started to touch her breasts whilst Ghebrat was touching her vagina (count 7).

1. At some stage in these activities, the applicant bit S on the right hand side of the neck (count 9).

1. After some minutes, Michelle returned with two persons. 

1. One of them, Govinda Lange, gave evidence that he was seated at the bus stop with his girlfriend Jade Blair, when a female (Michelle) in a distressed state, came running out of the alley asking for help.  He followed her into the alley where he heard a girl, who also sounded very distressed, crying.  He then saw two males and a young girl on a landing on a set of stairs.  It appeared that the girl was being restrained and was struggling.  Lange yelled at the two males.  One (Ghebrat) responded and came down the stairs.  The other (the applicant) claimed that the female was his girlfriend.  Lange indicated that he did not believe him.  The applicant then came down the stairs and approached him aggressively.  Lange stood his ground and the two became involved in a verbal exchange.  Blair, in order to avoid a fight developing, interposed herself between them. 

1. Lange then accompanied Michelle and the complainant out of the alley.

1. Jade Blair, who entered the alley a little after Lange and therefore was not in a position to observe all that transpired, essentially supported Lange’s version of events.

1. Michelle’s evidence also corresponded substantially to the role ascribed to her by S and the other witnesses with respect to these occurrences.

1. Ghebrat, who had earlier pleaded guilty and had been sentenced for his part in these activities, also gave evidence at the applicant’s trial.  He stated that he entered the alley approximately 20 minutes after the applicant and S.  At that stage, he said, they were at the top of the stairs.  He asked the applicant in his native tongue “What are you doing?”  The applicant responded “I fingered her.”  S, who appeared scared, asked Ghebrat for help, but rather than assisting her, he grabbed her by the arms and told her that she could leave if she gave him a kiss.  She complied but he did not release her and digitally penetrated her vagina as she pleaded with him to stop.  He held her arms while the applicant assaulted her in the same fashion.  Michelle then entered the alley and attempted to come up the stairs.  However, Ghebrat said, he barricaded her path and she left, returning not long afterwards with other persons.

1. The applicant who did not give evidence in the trial, when interviewed by the police, admitted going into the lane with S and said that they were kissing.  Otherwise, he denied that there was any sexual activity with her, that she called for help, or that anyone came into the alley to assist her.

1. There were a number of other witnesses called at the trial to whose evidence I need not refer in view of the issues raised in this proceeding.

The Grounds

Ground (a)

1. The argument presented by counsel for the applicant in support of this ground related to the consideration that, according to his own version, Ghebrat was an accomplice.  He had, as I have already mentioned, pleaded guilty to charges arising out of the occurrences in the alley. 

1. Whilst it was conceded that, at the level of generality, the trial judge provided an accomplice warning of a conventional kind, the contention was advanced that he fell into error in instructing the jury that the evidence of Ghebrat could be supported by that of Lange and Blair.  At best, counsel submitted, they observed only the latter stages of the incident.  This was important, it was claimed, as the defence of the applicant involved the assertion that the jury should not be satisfied that Ghebrat did not act alone. 

1. The argument is, in my view, quite curious as it totally ignores the source of the most powerful and direct support for the evidence of Ghebrat, namely the complainant herself.  Her evidence was, in turn and in part, supported by Blair, Lange and Michelle.  Whilst the evidence of each of these witnesses related only to segments of the events, and acknowledging that there were what I regard as inevitable and inconsequential differences in their recollections, they provided essentially a consistent and credible version of what took place, capable of acceptance by the jury as supporting Ghebrat’s reliability as a witness.

1. What his Honour said to the jury on this aspect, after providing a general direction with regard to the evidence of an accomplice, was:

“When looking for corroboration of that kind in the evidence, you the jury and I the judge, each have different tasks to perform.  It is my duty to determine whether there is any evidence capable, as a matter of law, amounting of corroboration and to direct you to any I find.  It is your duty as a matter of fact, to consider such evidence as I direct you is capable of amounting to corroboration, to determine first whether you accept the evidence as reliable, and next, whether in your opinion as the judges of the facts, it does corroborate the accomplice’s evidence by implicating the accused in the commission of crime.

In this case of course, you will recall that Ghebrat pleaded guilty to assaulting [S] and offered to give evidence against the accused Russom.  Thereby he gained a consideration in the sentencing process for his expression of remorse and his preparedness to assist the administration of justice.  The other side of that coin is of course, that he has a motive to give an account implicating the accused.  In this case therefore, he is – I would suggest, plainly an accomplice, although that is a matter for you to determine, and you should heed the warning I have given you when weighing the credibility of his evidence.  The first thing to do is to look for corroboration.

In this case there is evidence which I direct you is, as a matter of law, capable of amounting to corroboration.  It is for you to say whether you accept it and for you to say whether you regard it as being corroborative in fact of his evidence.  The evidence which is capable of amounting to corroboration is of course, the evidence of [S], that she was indeed assaulted by the accused, it is also to be found in the evidence of Lange and Blair as to what they found when they arrived at the bottom of the lane and saw two men and a girl on the staircase, with the girl appearing to be restrained and crying help.

That material is evidence coming from other people, which is capable as a matter of law and done in corroboration with Ghebrat’s evidence, if you the jury so chose to use it.  It is for you to consider that evidence and to determine whether you accept the evidence itself, and if you do, whether you regard it as corroboration of the evidence of the accomplice.”[9]

[9]T327-8.

1. Consequent upon a complaint being made by counsel for the applicant concerning the adequacy of these instructions, his Honour redirected the jury on the issue of corroboration.

1. Counsel had argued that the observations of Lange and Blair were incapable of assisting in the determination of the question whether the applicant was responsible for the assault on S.  What they saw of her state of distress could well have been occasioned by the conduct of Ghebrat, it was submitted, without any involvement at all of the applicant, save for his presence at the scene, and therefore could not provide support for Ghebrat’s version of events as far as the offences themselves were concerned.  His Honour addressed this matter in his redirection, instructing the jury:

“If of course the  whole of the account of Miss Blair and Mr Lange …  is explicable by Ghebrat’s behaviour with the girl, having nothing to do with what Russom did, no crime by Russom and of course you could not corroborate Ghebrat’s assertion that Russom committed a crime against the girl.  It is necessary to what is said by those people to determine whether it might not be that what they saw and heard was simply a product of Ghebrat committing a crime and not of Russom doing so.”[10]

He reminded them of the evidence of the two witnesses and continued:

“That is the actual evidence of what Lange and Blair encountered when they got to the end of the lane, according to them, and you will bear in mind, my direction to you, that for that to be corroborative, it must be evidence which proceeds from a source independent of Ghebrat, done independent of Ghebrat and it must tend to confirm Ghebrat’s story that Russom – not him, Russom, assaulted the girl, in a material particular, by tending to show of the assault earlier, that Russom did it.

Were it to be consistent only with Ghebrat having assaulted the girl, so that this crying, screaming and two males there, all the rest of it, is consistent with Ghebrat being the only person involved in the assault upon the girl, then you could not use corroboration in the case against the accused Russom.”[11]

[10]T345.  

[11]T349.

1. Lange, according to his evidence, saw a distressed young female on a staircase landing, struggling and restrained by two males.  The jury was entitled, if they accepted this evidence, to conclude that the applicant was implicated in what was occurring.  Of course, Lange’s evidence could not specifically associate the applicant with the particular offences with which he was charged, but it could support Ghebrat’s assertion that he was involved in what had taken place.  Similar limited, but not inconsequential support, could be derived from the observations of Blair and Michelle, putting to one side entirely in circumstances in which that could not sensibly be done, the evidence of S.

1. It is important to keep clearly in mind the purpose and effect of the requirement that the judge provide an appropriate accomplice warning to the jury in a criminal trial.

1. For easily understandable reasons, persons, who are sufficiently connected with the crime with which the accused is presented before the Court that they may be regarded by the jury as accomplices in its commission, are approached as unreliable.  A conviction resulting from the acceptance of evidence of a person who is regarded as falling within this category is regarded as unsafe unless the reliability of the version of the accomplice is supported by other evidence which comes from a source that is seen to be independent of the unreliable source and itself capable of acceptance or unless, after subjecting the accomplice’s evidence to the most careful scrutiny, bearing in mind its source, the jury considers that it is safe to act upon it.  The danger of a miscarriage of justice can arise at two distinct levels.  Proof of the very commission of the crime at all may be dependent upon the evidence of a self-proclaimed accomplice.  Much more frequently, of course, that is not the situation and the evidence of the accomplice bears essentially upon the proof of the accused’s involvement in it.  What really needs to be supported in cases of either kind are the accomplice’s assertions, express or implied, that the accused played a role in the commission of the offence and the extent and character of his participation.  As ever, the circumstances of the individual case will direct the nature of the instruction to be given in the understanding that:

“The essence of corroborative evidence is that it ‘confirms’, ‘supports’ or ‘strengthens’ other evidence in the sense that it ‘renders [that] other evidence more probable’:  Reg. v. Kilbourne, per Lord Simon of Glaisdale.  It must do that by connecting or tending to connect the accused with the crime charged in the sense that, where corroboration of the evidence of an accomplice is involved, it ‘shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused’:  R. v. Baskerville.

It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt.  In the case of an accomplice’s evidence, it is sufficient if it strengthens that evidence by

confirming or tending to confirm the accused’s involvement in the events as related by the accomplice:  see Baskerville;  Reg. v. Hester.”[12]

[12]Doney v. The Queen (1990) 171 C.L.R. 207 at 211 per Deane, Dawson, Toohey, Gaudron and McHugh, JJ (footnotes omitted).

1. As Winneke, P. emphasized in Rayner[13], “it is not the essence of corroboration … that the corroborative material should replicate the accomplice’s evidence”, but rather whether there was evidence independent of the accomplice which implicates the accused in the offence.  What is important in this context is not that there is other evidence generally tending towards the guilt of the individual, but independent evidence in the presence of which the reliability of the accomplice’s evidence can be seen to be enhanced to the extent that a conviction might safely rest upon it.

   [13][1998] 4 V.R. 818 at 838.

1. The position in the present case was relatively straightforward.  S alleged that she had been sexually assaulted by both the applicant and Ghebrat.  Ghebrat admitted that he had done so and supported her evidence as to the part of what she said had taken place.  Lange gave evidence that he saw S being restrained by the two men and that, when challenged, the applicant falsely claimed that S was his girlfriend.  The applicant then came down the stairs and engaged in a confrontation with the witness.  Lange and Blair support both the evidence of the complainant and that of Ghebrat.  It must also be pointed out, in this context, that the applicant had denied to the police that he had engaged in anything more than consensual kissing, that S had called for assistance, or that anyone had entered the alley to help her.

1. This was not a case in which the conviction of the applicant was, as a matter of practical reality, dependent upon the acceptance by the jury of Ghebrat as a reliable witness at all, although his evidence provided support for that given by S and was in its essential features consistent with that of Lange and Blair.

1. Viewed in context, the instruction given by the trial judge was clearly sufficient to draw the attention of the jury to both the extent of the support which would be available for the evidence of Ghebrat from that of S, Lange and Blair and the care with which they should approach the evidence of that witness.

1. This ground must fail in my view.

Ground 1(b)

1. There were, it was argued, a number of inconsistencies between the evidence given by S at the trial and earlier statements made by her to investigating police members or at the committal hearing.  They related to matters of substance affecting her credibility and reliability, the argument proceeded, and therefore should have been the subject of specific instruction in the judge’s charge.

1. The attention of the Court was drawn to five matters in this context, all of which were the subject of cross-examination as part of the challenge made to S’s evidence.  They were described in the written submissions of the applicant’s counsel as follows:

“(i)The complainant’s initial evidence to the jury that she had not kissed the accused at the bus-stop as inconsistent with her account to the Magistrates' Court at the committal in the matter;

(ii)the evidence to the jury as to her running after the ‘Night Rider Bus’ and her friend Michelle as having been nearly on the bus as inconsistent with her earlier statement that on approaching the bus it had just ‘taken off’;

(iii)the complainant’s evidence and concession that Michelle left her and returned to the alley/stairway area some 35 to 45 minutes after she had left compared with her initial evidence that it had taken some 7 to 8 minutes;

(iv)the inconsistency between the evidence of complaint to Unsworth containing the allegation that the men had tried to have sex with her and her failure to inform the jury or any other witness of such an allegation;  and

(v)the prior inconsistency between the earlier account given to Dr Wells as to the two men pulling down her top, touching her breasts and touching her anus being refuted as fact before the jury.”

1. With respect to (i) and (ii) S accepted that her earlier recollection was more likely to be accurate and therefore accepted the earlier version which accordingly became her evidence in the trial.  Whilst her reliability as a witness could, and indeed was, the subject of criticism by reason of the existence of variations in her version, neither of these matters necessitated the provision of an instruction concerning prior out of court statements made by the witness.  Such instructions are directed to the possible misuse by the jury of the out of court statement as evidence of the facts previously asserted:

“[I]t is clearly settled that the previous statement is admitted merely on the issue of credibility, and is not evidence of the truth of the matters stated in it:  Taylor v. The King;  Deacon v. The King;  and Reg. v. Pearson.  Since the jury, if uninstructed, are not likely to be aware of the limited use to which the previous statement may be put, it is essential that this should be made clear to them by the trial judge.”[14] 

Even then as Gibbs, J. pointed out in the same judgment it is not always necessary or even appropriate to treat the evidence of a person who has made a prior inconsistent statement as unreliable.[15]

[14]Driscoll v. R. (1977) 137 C.L.R. 517 per Gibbs, J. at 536 (footnotes omitted).

[15]At 536-7.

1. Concerning (iii) she stated in evidence in chief that Michelle was absent for about 7-8 minutes as she sought help.  In cross-examination on this aspect, however, she stated:

“In your statement to the police, I suggest you told them that the first incident that you described with Bin where he was touching you, that lasted for about 10 minutes.  Did you tell them that?---It’s not an exact time either.

No, but did you say that it was about 10 minutes?---Yes.

Then I suggest that when you described the second incident, you described that happening for about 20 to 25 minutes.  Is that correct?---Yes.  I don’t – yes.

It’s after that that the boy called Yolanda comes along.  That’s right, isn’t it?---Yes.

I suggest you then told the police that it was five to 10 minutes after Yolanda had come that you heard Michelle?---Yes.

Now, looking at the minimum times there, I suggest to you that that’s at least 35 minutes and could be anywhere as much as 45 minutes down the alley before Michelle comes?---Mm.

Is that possible?---Yes.

It’s possible?---30 – from what I know, 30 minutes.

No.I said it could be as long as 45 minutes on your times?---Yes, could be.”[16]

And a little later:

“I don’t know, because it’s not like something is going to happen to your life and you’re going to look at your watch and say, ‘Five minutes he was trying to grab me, five minutes, I’m almost getting raped, 10 minutes he’s’ - it was all a guess, and they told me, ‘Just guess what you thought it was or guess how you felt it was,’ and that’s why I was guessing.

The police told you to guess, did they?---Yes, because I didn’t have the times.”[17] 

[16]T79-80.

[17]T81.

1. Obviously an internal inconsistency in the evidence of a witness can be properly taken into account in the assessment by a jury of the reliability of the witness’ account, but, as I have indicated, it is not the appropriate subject of an instruction as to the use to which they may put a prior inconsistent statement of the person concerned.

1. The next matter upon which reliance was placed (iv) was the subject of direct reference by the trial judge in his charge when dealing with possible issues in the evidence.  No further instruction was required.

1. Finally, the state of the evidence as to the alleged inconsistency in (v) was by no means clear and, in any event, whether or not S was accurate in her description could hardly be perceived as significant in the circumstances.

1. There is, in summary, no substance to this ground which must also fail.

1. In that situation, I consider that this application should be dismissed.

CUMMINS, A.J.A.:

1. I agree with Vincent, J.A.

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