R v Smiles - [2018] SASCFC 98

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMILES
[2018] SASCFC 98
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hughes)
20 September 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
Appeal against conviction.
After a trial by jury the appellant was convicted of one count of indecent assault and three counts of unlawful sexual intercourse. The offences were alleged to have occurred one night in 1984. The complainant was a 15 year old high school student and the appellant was her music teacher.
The complainant gave evidence that on the night in question and after the appellant kissed her she said “Not you too?” which prompted a discussion about other teachers the complainant alleged to have sexually abused her. The appellant’s remarks included “I heard about this in the staff room and I wanted to know if it was true”. Counsel for the appellant sought leave pursuant to s34L Evidence Act 1929 to cross-examine the appellant on the conversation. The prosecution opposed the application. The learned trial Judge refused the appellant permission to cross-examine on the topic.
The appellant appealed the conviction on a number of grounds, including that the learned trial Judge erred in restricting cross-examination by the appellant regarding the conversation she had with the appellant that she had been the victim of multiple other sexual offending.
Held per Kelly J (Kourakis CJ and Hughes J agreeing), allowing the appeal against conviction:
1. That the learned trial Judge erred in not permitting counsel for the appellant to cross-examine the complainant on whether other teachers had sexually assaulted her or not.
2. The proviso cannot be applied.
3. Appeal allowed. Convictions quashed. Matter remitted to the District Court for new trial.
Criminal Law Consolidation Act 1935 Section 56; Evidence Act 1929 Sections 25 and 34L, referred to.
SKA v The Queen (2011) 243 CLR 400; Palmer v The Queen (1998) 193 CLR 1; Wakely v The Queen (1990) 93 ALR 79; Douglass v The Queen (2012) 86 ALJR 1086.; R v Liberato (1985) 159 CLR 507, considered.

R v SMILES
[2018] SASCFC 98
Court of Criminal Appeal: Kourakis CJ, Kelly J and Hughes J
KOURAKIS CJ:

I would allow the appeal for the reasons given by Kelly J.
KELLY J:
Introduction
After a trial by jury the appellant Andrew Barry Smiles was convicted of one count of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”) and three counts of unlawful sexual intercourse contrary to s 49(3) CLCA. He now appeals the convictions on five grounds (ground 2 having been abandoned), which may be summarised as follows:
·Ground 1 - the Judge erred in his directions as to the onus and standard of proof;
·Ground 3 - the verdicts are unsafe and unreasonable;
·Ground 4 - the trial miscarried because of the wrongful admission of evidence from the complainant regarding a conversation she had with the appellant that she had been the victim of other multiple sexual offending or, in the alternative;
·Ground 5 - the Judge erred in restricting cross-examination by the appellant on that topic;
·Ground 6 - the trial miscarried because the prosecutor contravened the prohibition in Palmer v The Queen[1] by indirectly suggesting in the final address to the jury that the complainant had no motive to lie.
[1] (1998) 193 CLR 1.
The appellant complains that the effect of these errors is such that the appellant was deprived of a fair trial and the convictions should be set aside.
Before turning to the issues which arise on appeal, it is necessary to set out some of the factual background.
Factual background
The complainant was born on 2 June 1969. She was 49 at the time of giving evidence. At the time of the relevant incident giving rise to the charges in December of 1984 she was a 15-year old student at a high school. The appellant was the complainant’s music teacher. The complainant was invited to play in the senior school band when she was in Year 10 in 1984. The senior school band was run by the appellant.
On the night in question, both the complainant and the appellant attended at a party held for the school band at the private residence of one of the band members. There were approximately 20 people present at the party. It was common ground that the appellant gave the complainant a ride home after the party in his Kombi van.
On the prosecution case the appellant drove the complainant a distance away from her home and pulled up on the side of the road in a location where there were no houses, just open paddocks.
The complainant was the sole passenger in the vehicle.
The complainant gave evidence of four sexual acts the subject of the counts, namely, a kiss on her lips with the appellant’s tongue in her mouth, that occurred while they were sitting on the front seat of the vehicle (count 1) followed by acts of penile/vaginal intercourse (count 2), cunnilingus (count 3) and a further act of penile/vaginal intercourse (count 4) which occurred while the complainant was in the rear of the Kombi van.
The complainant gave evidence of a conversation with the appellant after the moment he kissed her in the front seat of the Kombi van to the effect that she said “Not you too?” which prompted a discussion about other teachers the complainant alleged to have sexually abused her. The appellant’s remarks included, “I heard about this in the staff room and I wanted to know if it was true”. The abuse the complainant said she had suffered was at the hands of five other people, four of whom were teachers at the high school she attended. She gave some details of the alleged abuse by those others to the appellant in the course of the discussion.
The complainant said before the commission of the first act of intercourse, the appellant apologised, saying “I’m a bit small”, which the complainant understood was a reference to the size of his penis. After the act of cunnilingus (count 3) the appellant said, “You’re not really enjoying that, are you?” to which the complainant said, “Why would I be enjoying it? I’m 15, you’re my teacher, why are you doing this?” This then prompted the appellant to say, “Oh, what have I done?”, “this could ruin my marriage”, “I can’t believe I’ve done it, I’ve ruined my life”, “If my wife finds out, that’s the end of my marriage. If people find out, that’s the end of my job”, and finally “You mustn’t tell anyone.” The complainant had a particular recollection of the time that she arrived home, being 1.45 in the morning. She said she looked at the clock and remembered that particular aspect.
Evidence was led of an initial complaint which the complainant made to Christopher Duncan, her then boyfriend who she met following the events in December at the party. Some time after they commenced their relationship and in the context of the complainant’s emotional state on the occasions when they had sexual intercourse, the complainant disclosed the offending to him. In her disclosure she referred to the appellant having raped her and told him a little bit about what had happened, about the party and being in the Kombi van.
Christopher Duncan gave evidence that they were boyfriend and girlfriend for a couple of years and that the complainant disclosed the offending to him one day when they were at his sister’s house when she was quite upset and teary. His best recollection was that the offending occurred after a school play where she was playing in a band or after some kind of school recital or “something they were cleaning up afterwards”. The complainant’s mother was supposed to have picked her up but did not. He referred to the complainant being in a car or a van with the appellant, which stopped opposite her house. The appellant leaned over to try to kiss her, following which he pulled her into the back of the car and raped her.
David O’Brien was also in the school band and the appellant was his Year 12 music teacher. He gave evidence of an end of year party hosted at his house in 1984 for the senior band. However he said there was more than one such party and given it was such a long time ago he was not able to distinguish between the parties as “they all sort of blurred into one”. He said both music teachers would have been invited to the parties. He remembered that the appellant used to cart musical instruments in his Kombi van but was unable to say whether he always had drums in the back of it. He was unable to distinguish between two or three parties that were hosted at his house, or with the names of the students who attended the party.
The appellant gave evidence and called a number of witnesses for the defence.
The appellant did not deny that there was an occasion after a party at the O’Brien’s when he drove the complainant home. He said that he took two other students with him, a girl whose name he could not remember, and a boy named Trevor Townsend. The complainant got in the front seat and the other two students sat in the back. He gave evidence that when they got to the complainant’s house she leaned over and tried to kiss him goodnight on the cheek to which he responded, “Well, I don’t think that’s a good idea. You should go inside”. He thought to himself, “Wow”, he didn’t see that coming but then added that he didn’t get the impression there was anything sexual in what the complainant was attempting to do. He arrived home at about 10.45 to 11.00 pm. His wife was still up. He did not mention it to her. The appellant said that on the night he gave the complainant a lift home, the drum kit was in the van. Two photos showing drum equipment in the rear of a similar Kombi van were tendered on behalf of the defence.
The appellant called three character witnesses, including his wife, Ruth Smiles, who gave evidence as to the appellant’s good character. The appellant’s wife said that she recalled the night that the appellant attended the party at the O’Brien’s because she had an interest in architectural design and had taken an interest in their mud brick house construction at the time. She said the appellant left to go to the party at around 7.00 or 7.30 pm in the Kombi van and was home well before midnight, probably around 11.00 pm.
Trevor Wayne Townsend was in Year 9 or 10 in 1984. He met the appellant in Year 8 when the appellant was teaching music and taught him throughout the period that he was at the school between 1982 and 1986. He became friends with Lisa O’Brien and went to the O’Brien house several times. He was not able to recount how many parties had been held at the O’Brien’s but recalled being at one. He was not certain whether or not the appellant was at the party. He recalled the appellant owned a Kombi van and believed he was dropped home by the appellant on one occasion only. At the time he was seated in the back behind the appellant and believed there were two other people inside the vehicle. He thought that because of where he was sitting and he vaguely recalled that the front seat passenger was intoxicated. He could not recall if the passenger was male or female. At that time he lived at an address close to the complainant’s address. He did not have a clear recollection of how many seats were in the Kombi van and was unable to recount any of the events before or after being dropped off on that one occasion.
Grounds of Appeal
Of the five grounds of appeal the appellant agitated upon the hearing of this appeal, a single Judge originally granted permission in respect of the first ground, the alleged failures in relation to directions to the jury as to the onus and standard of proof. As I have said, ground 2 was not pursued. The Judge referred ground 3, that the verdicts are unsafe and unreasonable, to this Court for permission.
In addition, the appellant now seeks permission before this Court in respect of three additional grounds of appeal as follows:
Ground 4
The appellant’s trial miscarried as a consequence of the wrongful admission of the complainant’s evidence regarding the complainant being the victim of multiple other sexual offences.
Particulars:
4.1     The evidence is irrelevant.
4.2     The evidence did not form part of the res gestae, and in the alternative,
4.3     The prejudicial effect of the evidence substantially outweighed its probative value and fairness dictated that the evidence should have been excluded.
Ground 5
The learned trial Judge erred in restricting the ability of defence counsel to cross-examine the complainant upon the complainant being the victim of multiple other sexual offences.
Ground 6
The appellant’s trial miscarried as a consequence of unfairness occasioned by the trial prosecutor contravening the principles elucidated in Palmer v The Queen.[2]
[2] (1998) 193 CLR 1.
I propose to deal first with two of the additional grounds in respect of which the appellant seeks permission to appeal.
Grounds 4 and 5 - The admission into evidence of a conversation between the appellant and the complainant in which the complainant made allegations of sexual abuse by others and the restriction placed on the appellant’s counsel as to cross-examination on that topic.
At the commencement of the trial the prosecutor sought leave pursuant to s 34L of the Evidence Act 1929 (SA) to lead evidence from the complainant that she told the appellant of sexual offending against her by other teachers after he attempted to kiss her. There was no objection by the defence to the admission of that evidence.
The prosecution case was that the offending by the other teachers had happened and that because it had happened the appellant had heard rumours or accounts of it. To that end, the prosecution relied on the complainant’s testimony that the appellant said he had heard about the offending by other teachers and on other evidence which concerned the transfer of another teacher from the school. It was the prosecution case that, emboldened by hearing about the accounts of others abusing her, the appellant resolved to commit the sexual offences against the complainant.
During cross-examination of the complainant defence counsel then acting for the appellant sought leave under the same section to cross-examine the complainant on the conversation. He submitted that the evidence of what she told the appellant about others was so broad and extensive as to beggar belief that such events had happened, particularly as nothing had come of it for many years. He also sought to put to the complainant that the appellant never said that he had heard about those rumours in the staff room. The prosecution opposed the application and the Judge did not permit any further cross-examination on the topic on the basis that if he permitted cross-examination on the happening of those events the jury would be “faced with determining collateral questions”.
This ground of appeal raises an important issue as to the construction of s 34L of the Evidence Act 1929 (SA):
34L—Evidence in sexual cases generally
(1) In proceedings in which a person is charged with a sexual offence, no question may be asked or evidence admitted—
(a)     as to the sexual reputation of the alleged victim of the offence; or
(b)     except with the permission of the judge—as to the alleged victim's sexual activities before or after the events of and surrounding the alleged offence (other than recent sexual activities with the accused).
(2) In deciding whether permission should be granted under subsection (1)(b), the judge must give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence of the kind referred to in that subsection, and must not grant permission unless satisfied that the evidence in respect of which permission is sought—
(a)     is of substantial probative value; or
(b)     would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim,
and that its admission is required in the interests of justice.
(3) Permission must not be granted under subsection (1)(b) authorising the asking of questions or the admission of evidence the purpose of which is only to raise inferences from some general disposition of the alleged victim.
(4) An application for permission under subsection (1)(b) must be heard and determined in the absence of the jury (if any).
(5) In a trial of a charge of a sexual offence, the judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence.
(6) Subsection (5) does not affect the operation of any provision of this or any other Act requiring that the evidence of a witness be corroborated.
(7)     In this section—
evidence includes an allegation or statement made by way of an unsworn statement;
sexual activities includes sexual experience or lack of sexual experience.
Although ground 4 was not formally abandoned, Mrs Shaw QC conceded during argument that the evidence of the conversation which the complainant had with the appellant during the offending was relevant and properly admitted. It was therefore common ground, upon the hearing of this appeal that the evidence of the complainant on this topic was substantially probative and that permission was properly given to the prosecution to lead it. However the appellant maintained the complaint made in ground 5 that the Judge erred in restricting the ability of defence counsel to cross-examine the complainant about the allegations that she had been a victim of sexual abuse by others.[3]
[3] The conversation is summarised in para [10] herein.
On a proper construction of s 34L, once permission is granted to a party to lead evidence which is substantially probative then the opposing party may cross-examine on it. The cross-examination on such subject matter will necessarily also elicit evidential material which is substantially probative.
Here the complainant herself testified that what she told the appellant was “what had happened”. It is because the complainant’s evidence was led, not only as a conversation which took place during the offending, but also as to its occurrence in fact that the prosecution was required to seek the permission of the Court to lead it pursuant to s 34L of the Evidence Act 1929 (SA).
The legislative purpose of s 34L in prohibiting questions, as well as evidence, is to ensure that its purpose is not undermined by counsel asking questions about and putting allegations of previous sexual conduct, even though the witness will not be required to answer them. Here, whether or not the other offending had occurred affected both the likelihood that the complainant would complain about it to the appellant and the likelihood that the appellant had heard of it quite independently of the complainant. If the jury accepted that the offending by the other teachers had actually occurred, the jury might then more readily accept that the complainant did tell the appellant about it after he attempted to kiss her, that the appellant had heard of it earlier and that he did respond to it in the way the complainant alleged.

The complainant gave detailed evidence about the previous abuse she had allegedly suffered, including the identity of the perpetrators and the circumstances which were said to have constituted the abuse. Her disclosures on the prosecution case took place over a number of minutes, perhaps up to seven minutes.
In my view, the Judge’s concerns that to have permitted cross-examination on the topic would have offended the finality rule as to collateral evidence were misplaced.
The appellant was not seeking to call any evidence from the other alleged abusers but simply to raise a question as to the complainant’s truthfulness and reliability. That did not require the jury to determine, beyond reasonable doubt or to any standard of proof, whether the earlier allegations were true. All the jury would have to consider, had cross-examination been permitted, was whether the cross-examination raised any issue relevant to the complainant’s credit and reliability such that it ought to have been factored into its assessment of whether the prosecution had in fact proved its case beyond reasonable doubt.
The importance of cross-examination as a component in an adversarial system of justice has been repeatedly emphasised.[4] In the absence of clear language, Parliament should not be taken to have intended to deny an accused person the right to test the evidence adduced against him or her by cross-examination. Section 34L therefore should not be construed in such a way as to require an opposing party to establish that its questions in cross-examination are likely to substantially add to, or undermine, the probative value of the evidence. Importantly, s 25 of the Evidence Act 1929 (SA) empowers the Court to disallow vexatious and inappropriate questions if the right to cross-examine is abused.
[4] Wakely v The Queen(1990) 93 ALR 79 at 86.
The purpose of s 34L(2)(b) is to allow, with leave, questions to be asked, or evidence to be adduced, which materially affects the credit of an alleged victim, even if the subject matter is not probative of a fact in issue. Again, if an accused is given permission to cross-examine a witness in that way, the prosecutor would not need the permission of the judge to re-examine on the subject matter in order to re-establish the complainant’s credit. Similarly if in an exceptional case collateral evidence undermining a witness’ credibility is allowed, the prosecutor could, without needing leave, cross-examine the witness from whom that evidence is adduced.
For these reasons it was an error not to permit the appellant’s counsel to cross-examine the complainant on whether the other teachers had sexually assaulted her or not. I consider that the error has led to the appellant being deprived of a legitimate forensic tool available to him to meet the charges. This was a particularly important right denied him in the context of this case, where the prosecution case was wholly based on the evidence of the complainant. In these circumstances, the appellant was denied the opportunity to fully cross-examine her with a view to exposing her as an untruthful and unreliable witness. In these circumstances I consider that the appellant was denied a fair trial and I would allow the appeal on this ground alone.
In light of the fact that there may be a retrial it is necessary to deal with some of the other grounds of appeal.
Ground 3 – Unsafe and unsatisfactory verdict
I would not have allowed the appeal on this ground for the following reasons.
In SKA v The Queen[5] the High Court summarised the principles applicable in determining whether a verdict is unreasonable or cannot be supported by the evidence. French CJ, Gummow and Kiefel JJ said:
[5] (2011) 243 CLR 400 at [11]-[14].
It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queenby Mason CJ, Deane, Dawson and Toohey JJ:
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.
This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The QueenMcHugh, Gummow and Kirby JJ stated that the reference to “unsafe or unsatisfactory” in M is to be taken as “equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’.”
The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter.
In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question 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, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.
Footnotes omitted
The appellant submitted that upon an independent review of the evidence, even making full allowance for the advantage possessed by the jury in having seen the complainant give evidence, this Court should conclude that it would be dangerous to allow the verdicts of guilty to stand.
The appellant pointed to a number of features present in the evidence which rendered the verdicts unsafe, including:
·the delay of 30 years between the happening of the events complained of in the trial which, in itself, gives rise at least to a “lurking doubt” that the evidence was sufficient to support the conclusion;
·a number of discrepancies in the complainant’s evidence including her explanation for making a prior inconsistent statement to police about her memory of how she got from the front seat in the Kombi van to the rear of the van before the offending began and other discrepancies between her and the complaint witness, Mr Duncan, as to location and detail of the alleged rape which the appellant submitted significantly cut across the complainant’s version;
·the evidence of Mr Townsend which was consistent with the evidence of the accused and in itself gives rise to a significant possibility that the appellant is innocent.
After conducting my own independent review of the evidence, I am satisfied that upon the whole of the evidence, it was open to the jury, if properly instructed, to be satisfied beyond reasonable doubt of the appellant’s guilt.
Although there was a period of substantial delay in this case, I do not consider that in the particular circumstances of the issues at trial that the appellant was not able to test the complainant’s evidence. There was no dispute at trial that there had been an occasion after a party when the appellant took the complainant home in his Kombi van. The factual dispute really came down to whether or not the alleged offending took place in the Kombi van on the trip home on that evening.
It is true that the complainant gave evidence in court inconsistent with a statement she had made to the police in 2016 about how she went from the front seat of the van to the back of the van where the offending occurred. The complainant was cross-examined at length about the change in her version of events. The contents of the earlier statement were put to her and the memory, which she said had re-surfaced prior to a proofing session in connection with the forthcoming trial, was explained by the complainant. She conceded that she did not have a perfect memory and at times she made mistakes.
I do not consider the fact that the witness qualified this aspect of her account in evidence necessarily cast doubt over the reliability of her evidence as to what occurred in the Kombi van. The Judge’s directions as to how to evaluate and assess the evidence of a witness were not subject to any complaint. The jury was warned to give very careful scrutiny to the complainant’s evidence before reaching a conclusion of guilt.
As to the contention that the appellant’s drum kit was in the rear of the Kombi van and it would have been impossible for both the appellant and the complainant to be in that area in the presence of the drum kit, it was open to the jury on the basis of the whole of the evidence to conclude that the drum kit was not in the Kombi van that night.
Significantly, Mr Townsend was not asked a single question about that. His evidence, if accepted, established that there were seats behind the driver’s seat and he was sitting on one of them. Of further significance is the appellant’s evidence that the middle rear seat was removable and that it was not in the van on the night he took the complainant home. The complainant had no recollection of any drums being in the rear of the van.
It is also true that there were features of the complaint evidence of Mr Duncan which were inconsistent with the version given by the complainant. When asked about the complaint, the complainant described the circumstances of how she came to disclose the offending to Mr Duncan. She said she used the phrase “he raped me”, she told him that it was the appellant and told him a little bit about what had happened about the party and being in the Kombi van. Mr Duncan recalled her as having said it occurred after a school play when she was playing in a band or “some kind of school recital” and that the van stopped directly opposite her house when the appellant then pulled her into the back of the van and raped her. The complainant was not cross-examined about the details of her evidence of complaint. The gist of Mr Duncan’s evidence was in fact consistent with the complainant’s account, in particular his reference to the initial kiss which occurred in the front seat and the sexual activity in the back seat, together with the discussion that the complainant told him she had in relation to previous unwanted sexual encounters.
All of this material was before the jury, including the inconsistencies which were referred to by the trial Judge in the summing up.
Finally, the evidence of Mr Townsend, to my mind, does not call into question the correctness of the jury verdict. It is plain from the whole of his evidence that there was ample room for the jury to have concluded that the witness was talking about another occasion. All he remembered was being at one party. He was not certain if the appellant was there or not. He remembers being dropped off on one occasion and believes there were two others there, one of whom he has a vague recollection was intoxicated. He did not recall the name of the complainant but he did say that there was only one occasion when he was dropped off home by the appellant but he was not certain about what occasion that was. In these circumstances, even if the jury had accepted Mr Townsend as a witness of truth, his evidence did not necessarily support the appellant’s in that on the whole of his evidence it was open for the jury to conclude that he was talking about another occasion than the night when the appellant took the complainant home from the O’Brien’s in 1984.
In summary, there was no particular aspect of the complainant’s evidence or any other feature of the evidence which obliged the jury to have come to a different conclusion.
I turn now to deal with the remaining two grounds of appeal, 1 and 5, albeit very briefly.
Ground 1 - Complaint as to directions on onus and standard of proof
The essential complaint made by the appellant under ground 1 was articulated as follows: that the jury was never told that in the circumstances of this matter, where the appellant had denied the allegations on oath that he could not be convicted unless his evidence was rejected as not being a reasonable possibility. In making that submission the appellant sought to rely on the High Court decision in Douglass v The Queen.[6]The appellant submitted that if after having considered the conflict in the evidence between the appellant and the complainant the jury could not reject the evidence of the appellant as a reasonable possibility then this would equate to a reasonable doubt. It was argued that the cursory and incomplete nature of the Judge’s directions on the burden of proof gave rise to a very real risk that the jury would have misapprehended the consequences of a rejection of the defence evidence. In particular the jury would have failed to understand that the appellant carried no burden of proof, that rejection of the appellant’s evidence did not correspond with proof of the charge beyond reasonable doubt, that before rejecting the appellant’s evidence the jury had to be satisfied that what he said was not reasonably possibly true and that failure to so conclude would necessarily demand a verdict of not guilty.
[6] (2012) 86 ALJR 1086.
As there is to be a retrial in any event, I have not found it necessary to determine this ground of appeal. However, in light of the fact there is to be a retrial, I make the comment that it would have been preferable in the particular circumstances of this case (where the appellant gave evidence and presented a defence case with witnesses) if the Judge had added the customary direction of the type referred to in R v Liberato.[7]The direction is that even if the jury prefers the prosecution evidence or does not positively believe the evidence of the defence they cannot find against the accused on that issue if the defence evidence leaves the jury with a reasonable doubt on that issue. This Court has held that it is not always necessary to give that direction in every case. However, in light of the issues in this matter and the way in which the prosecution and defence cases crystallised, it would have been better if the Judge had added that direction.
Ground 6 – The prosecutor breached the rule in Palmer v The Queen[8]
[7] (1985) 159 CLR 507 at [515] per Brennan J.
[8] (1988) 193 CLR 1.
Finally, for the sake of completeness, I add that I would not have allowed the appeal on this ground. The complaint in respect of ground 6 arose out of a statement by the prosecutor in her closing address to the jury:
If she is the utter liar that the defence will say that she is, and she has made up her account of being abused from beginning to end, wouldn’t it be more likely she would cast the accused as having some sexual interest in him attempting to groom her in some way prior to the party?
The relevant principle in Palmer v The Queen[9] impugnes the asking of any question of an accused as to why a complainant may have a motive to lie.
[9] (1988) 193 CLR 1.
At trial neither counsel cross-examined on the topic of the complainant’s motive to lie. It was never put by the appellant’s counsel that the complainant had a motive to lie and the prosecutor never put the prohibited question about “why would the complainant lie?” to the appellant.
The impugned sentence of the prosecutor needs to be considered in the context of the closing address, including the submissions she made about whether the complainant’s allegations were truthful or the product of fabrication. In her comments, the prosecutor was not responding to any suggested motive to lie that had been put to the complainant in cross-examination. It was a variation of the preliminary submission she had made as follows:
You might think, in this case, there was no room for [the complainant] to be mistaken about what she said. There is no room for her honestly recalling the sexual abuse of her that she would be mistaken about. [The complainant] was either the victim of sexual abuse at the hands of the accused or she has fabricated a complex and compelling work of fiction that she has memorised and executed under oath in this Court before you all. …
In my view, the submission did not breach the rule in Palmer v The Queen[10] and I would not have allowed the appeal on that ground.
[10] (1988) 193 CLR 1.
Conclusion
In light of the conclusion I have reached about ground 5 that the appellant has been denied a fair trial, the proviso cannot be applied. For these reasons I would quash the convictions and remit the matter for trial in the District Court.
HUGHES J:
I agree that the appeal should be allowed for the reasons given by Kelly J.