R v Wallace
[2008] SASC 47
•29 February 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WALLACE
[2008] SASC 47
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Vanstone)
29 February 2008
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS
JOINT TRIAL OF SEVERAL COUNTS
Appellant charged with rape (9 counts) and false imprisonment (3 counts) - 3 complainants and 3 separate occasions - issue whether acts were consensual - whether miscarriage of justice occurred because all counts were heard together - whether evidence led on counts relating to second and third complainants were cross-admissible - admissibility of similar fact evidence where nature of sexual activity is in issue - whether evidence revealed a pattern of behaviour and underlying unity - objective improbability of events having occurred other than as alleged by prosecution - appeal dismissed.
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
First and second complainants were sisters - evidence given by both sisters of a complaint made by second complainant to first complainant - differing accounts of complaint - whether second complainant's evidence of complaint was admissible - whether complaint recent - whether inconsistency of evidence relevant - permission to appeal refused.
Evidence of "complaint" led from independent witness - inadmissible - led by arrangement between counsel - adequacy of trial Judge's directions - whether miscarriage of justice - permission to appeal refused.
Criminal Law Consolidation Act 1935 (SA) s 278, referred to.
R v Collie, Kranz and Lovegrove (1991) 56 SASR 302; R v Smith (1988) 71 SASR 543; De Jesus v The Queen (1986) 61 ALJR 1; Hoch v The Queen (1988) 165 CLR 292; R v Boardman [1975] AC 421; Pfennig v The Queen (1995) 182 CLR 461; Phillips v The Queen (2006) 225 CLR 303; Goldsmith v Sandilands (2002) 76 ALJR 1024; R v Freeman [1980] VR 1; R v Mustafa (2005) 91 SASR 62; Makin v The Attorney-Genearl (NSW) [1984] AC 57; Thompson v The Queen (1989) 169 CLR 1; Martin v Osborne (1936) 55 CLR 367, applied.
R v Liddy (2002) 81 SASR 22; Smith v The Queen (2001) 206 CLR 650; Perry v The Queen (1982) 150 CLR 580; Sutton v The Queen (1984) 152 CLR 528; R v Lobban (2000) 77 SASR 24; R v Gallagher (1986) 41 SASR 73; Breen v The Queen (1976) 180 CLR 233, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"similar fact evidence"
"recent complaint"
R v WALLACE
[2008] SASC 47Court of Criminal Appeal: Duggan, Bleby and Vanstone JJ
DUGGAN J. I would refuse permission to appeal on grounds 6 and 7 and dismiss the appeal on all other grounds.
I agree with the reasons prepared by Bleby J.
BLEBY J. After a trial by jury the appellant was convicted of two counts of false imprisonment and five counts of rape against two different complainants. He was acquitted of one count of false imprisonment and two counts of rape in relation to a third complainant. The appellant appeals against the convictions on three grounds, and applies for permission to appeal on two further grounds. I will refer to the three complainants as C1, C2 and C3, being the order in which they were involved in the events in question.
C1 and C2 are sisters. They gave evidence that the incidents in which they were involved occurred in September 2004. However, telephone records suggested that they occurred in early August 2004. The incident that involved C1 occurred the night before the incident with C2. The incident involving C3, who is not related to C1 and C2, occurred on 16 October 2004. The identity of the appellant was not in issue in respect of any complainant. Rather, the issues at trial in each case were whether the complainants consented and the precise nature of the conduct which occurred.
Set out below is a table of the counts with which the appellant was charged and the result in each case.
Count No. Complainant Date of Offence
Count Verdict Nature of Verdict 1 C1 Aug-04 False Imprisonment
Not guilty Unanimous 2 C1 Aug-04 Vaginal Rape Not Guilty Unanimous 3 C1 Aug-04 Vaginal Rape Not Guilty Unanimous 4 C2 Aug-04 False Imprisonment
Guilty Majority 5 C2 Aug-04 Vaginal Rape
Guilty Majority 6 C2 Aug-04 Vaginal Rape
Guilty Majority 7 C2 Aug-04 Vaginal Rape
Guilty Majority 8 C3 16-Oct-04 False Imprisonment
Guilty Majority 9 C3 16-Oct-04 Vaginal Rape
Guilty Majority 10 C3 16-Oct-04 Anal Rape
Not Guilty Unanimous 11 C3 16-Oct-04 Digital Rape
Not Guilty Directed 12 C3 16-Oct-04 Fellatio Rape
Guilty Unanimous Ground 1: Severance of counts
The first ground of appeal concerns the failure of the trial Judge to order separate trials. The appellant submits that there was a miscarriage of justice by reason that the offences involving all three complainants were heard together. Before the commencement of the trial, the appellant applied for separate trials under s 278(2) of the Criminal Law Consolidation Act 1935 (SA). Specifically, the appellant sought one trial to hear the counts in relation to the sisters, C1 and C2 (counts 1 to 7), and a separate trial to hear the counts involving C3 (counts 8 to 12). On 16 May 2007 the trial Judge refused the application and gave very brief reasons. He adverted to the possibility of publishing further reasons but did not do so.
This appeal is not, however, a review of that decision. Instead it involves a consideration of the subsequent trial as a whole to determine whether a miscarriage of justice occurred because all counts were heard together.[1] The appellant submits that the evidence led on the counts relating to C2 and C3 was not cross-admissible in that it did not have the high degree of probative force required to be admissible. It did not contain the necessary underlying unity, system or pattern between the incidents involving the different complainants.
[1] R v Collie, Kranz and Lovegrove (1991) 56 SASR 302, 310, King CJ; R v Smith (1988) 71 SASR 543, 549, Perry J.
To address this ground, it is necessary to say some more about the evidence led by the prosecution concerning the incidents involving each of the complainants. Although the appellant was found not guilty of the charges in relation to C1, it is necessary to consider whether the evidence led in support of those charges was also cross-admissible on the charges in respect of C3.
Evidence concerning counts 1 - 3 (C1)
C1 was aged 38 at the time. On the evening in question she was working as a prostitute opposite a hotel on a suburban arterial road. She was standing on the footpath and was approached by the appellant. During the course of discussion she made it known that she was a prostitute, and the appellant invited her back to his lodgings. She explained that she had no money and asked if he could help her out. He agreed to do so, she then understanding that she was likely to be paid for sexual favours. The appellant hailed a taxi to go to his house. On the way they stopped at a bank ATM so he could withdraw some money.
C1 started to feel uncomfortable in the taxi and asked the driver to stop to let her out. The appellant instructed the driver to keep going. When they arrived at the appellant’s house they went to his bedroom. There was a discussion about money and the appellant gave C1 $100. There was further non-threatening conversation between them while sitting on the bed during the course of which C1 provided the appellant with her mobile phone number. The appellant then got up and in an aggressive manner demanded that C1 take her clothes off. The appellant alluded, in a threatening fashion, to some knives that were in the room. C1 panicked and screamed at the appellant that he had better not hurt her or touch her in any way. She said she only wanted to spend time with him and that she would like to call a taxi. The appellant responded that he had work to go to in the morning and that he would not let her out until then.
Notwithstanding that, after some further conversation they both undressed and had consensual sexual intercourse, the appellant wearing a condom supplied by C1. C1 described the intercourse as “a really rough style of rubber style of sex” and causing her pain. She complained, but it made no difference. After some time he suddenly withdrew, quickly removed the condom and reinserted his penis into her vagina. C1 told him to get off, as she was not consenting to sex without a condom and he was causing pain. She tried to escape from under him but was unable to. He withdrew after ejaculation.
C1 asked for a towel and to go to the toilet. Wearing the towel, she was escorted by the appellant to the toilet, some distance down a hallway. He remained in an adjoining cubicle while C1 was in the other. He then escorted her back to the bedroom.
They lay on the bed together for some time. The appellant allowed C1 to make a phone call, and shortly after aggressively demanded intercourse again. She said she wanted to leave, but he repeated that he was not letting her out until the morning.
There was a further act of enforced sexual intercourse of a similar nature without a condom during which the appellant again ejaculated.
By this stage it was between 2 am and 3 am. The appellant told C1 to remain lying on the bed because he wanted to have sex with her again before he went to work. She did not attempt to escape for fear of physical harm.
After some time the appellant indicated that he wanted to have sex again, but the alarm which he had previously set went off and they both got dressed.
During the course of the night C1 went to the toilet on two or three occasions. On each occasion she was escorted there and back by the appellant.
C1 and the appellant left the house together to catch a bus - C1 to go home and the appellant to go to work. However, when C1 got off the bus to go home the appellant followed. They both got on another bus in the direction of the appellant’s workplace, but it was not until after they got off the bus nearer the appellant’s workplace that C1 managed to lose the appellant and catch another bus home.
Evidence concerning counts 4-7 (C2)
C2 was aged 35 at the time. She gave evidence that she met the appellant at about 10 pm the next night when the appellant approached her on the same road on which he had approached C1. He asked her if she would like to go back to his place for a while and smoke cannabis, and she agreed. They caught a taxi to his place, stopping along the way at a service station so the appellant could make a purchase and obtain some cash. They arrived at his place about an hour after they first met. She was led to the appellant’s bedroom.
When she asked the appellant for the cannabis, he said that he must have dropped it somewhere. She then said, “I better go. I might as well leave then.” The appellant then became angry, slamming the bedroom door shut and telling her she was “not going nowhere until I let you out”. He said that that would not be until six in the morning when he went to work. He told her, in an aggressive manner, to go over to the bed and remove her clothes. She complied with the demands out of fear for her safety.
He removed his clothes and returned to the bed and held C2 around the neck in a hugging motion when he had become calm again. Then “this aggressive beastly stage came out and that’s when he jumped on top of me”. He said; “Get here, come here. Why don’t they do what I tell them to do?” He then told her that he was going to have sex with her, rejecting her offer of performing oral sex instead. He then had enforced and aggressive vaginal sexual intercourse with her. After that he still refused to let C2 leave but calmed down again.
When she wanted to use the bathroom at about 1 am, he went with her and waited there until she was finished. She went to the bathroom wearing a towel and a t-shirt. Upon returning to the room, he told her to remove the t-shirt and that he wanted to have sex again. He prevented her from leaving. She said that she tried to calm the appellant by talking to him so he would let her go, but he “schizzed out”, became violent and enforced vaginal sexual intercourse with her again. She described the “schizzing out” as “scary, evil and freakish”.
The same pattern was repeated a third time. On no occasion did he use a condom. On each occasion he ejaculated. After the third occasion she told him that it was nearly 5 am and asked whether she could leave. He allowed her to leave. He did not go with her. At her request he gave her $10 for a taxi. She left between 5 am and 5:30 am.
C2 denied that she worked as a prostitute, although she had earlier worked as a receptionist only at a brothel. It was her evidence that on the night in question she was walking to a service station to buy cigarettes, ice-cream and chocolate when she was approached by the appellant. No money was offered by or demanded from the appellant.
Evidence concerning counts 8-12 (C3)
C3 was aged 34 at the time of the incident. She met the appellant between 11:30 pm and midnight on a Friday night in October 2004 in Hindley Street, Adelaide. The appellant approached her on the street and spoke to her. During the course of conversation she offered to drive him home as it was on the way to her home. They arrived at his boarding house sometime after midnight and he invited her in for a coffee. She accepted.
After about 10 minutes, she told him that it was time for her to leave. The appellant replied, “No, I can’t let you do that”. When she tried to leave, he pushed her back onto the bed and told her to remove her top. She refused. Despite her protests, he forcibly removed her clothes. He said: “You might as well relax and enjoy the ride because I don’t start work until 6 o’clock, you’re not going anywhere until I finish with you”.
She tried to resist physically, but she was unable to restrain him. He slapped her and at one stage had his hand across her mouth. As she cried, he mocked her. He then had very rough and violent vaginal sexual intercourse with her. He then turned her over and had rough anal sex with her. At the same time, he took a white plastic shopping bag from the bed head and pulled it over her face and head. She did not know if she had lost consciousness. She was then again on her back with the appellant again having enforced vaginal intercourse and forcing her own fingers into her vagina. After that he forced her to perform oral sex on him. After that, he put a tie around her neck and pulled it very tight. She could not remember what happened after that other than that he became more relaxed and forced her to lie quietly with him on the bed for about an hour. His mood had changed. He even became apologetic.
She was not aware of him ejaculating at any stage. He did not use a condom. These incidents occurred over the course of a few hours.
At the end of the episode he gave her a towel to wear and walked with her to the bathroom for a shower, saying she had to have a shower before she left. He retained possession of her boots and bag while she had a brief shower.
C3 admitted to being a sex worker but denied that she was working that night or that there was any talk of or exchange of money.
The relevant principles
Where sexual offences are charged on the one Information in respect of more than one complainant and if the admissible evidence on the counts relating to one complainant is not admissible in relation to the other offences charged, separate trials of the offences should normally be ordered.[2] The question in this case is whether the evidence in respect of each complainant was cross-admissible.
[2] De Jesus v The Queen (1986) 61 ALJR 1, 68 ALR 1; Hoch v The Queen (1988) 165 CLR 292, 294 Mason CJ, Wilson and Gaudron JJ, 298, Brennan and Dawson JJ.
In Hoch v The Queen[3] Mason CJ, Wilson and Gaudron JJ said:
The basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged. …
Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force: see Perry v The Queen;[4] Sutton v The Queen;[5] Reg. v Boardman.[6] That strength lies in the fact that the evidence reveals “striking similarities”, “unusual features”, “underlying unity”, “system” or “pattern” such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.
[3] (1998) 165 CLR 292, 294-295.
[4] (1982) 150 CLR 580, 586-587, 605, 610.
[5] (1984) 152 CLR 528, 563.
[6] [1975] AC 421, 439, 444.
The Court noted that the value of the evidence lies in the “improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred”.[7] In so noting, the Court referred to the speech of Lord Wilberforce in R v Boardman:[8]
This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.
[7] (1988) 165 CLR 292, 295.
[8] [1975] AC 421, 444.
The Court further pointed out:[9]
In cases such as the present the similar fact evidence serves two functions. Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view - viz. joint concoction - is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.
[9] (1988) 165 CLR 292, 296.
Mason, Deane and Dawson JJ affirmed those general principles in Pfennig v The Queen.[10] They added:
There has been a tendency to treat evidence of similar facts, past criminal conduct and propensity as if they each raise the same considerations in terms of admission into evidence. The difficulty is that their probative value varies not only as between themselves but also in relation to the circumstances of particular cases. Thus, evidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark, lacks cogency yet is prejudicial. On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connexion with or relation to the issues for decision in the subject case. That evidence, as has been said, will be admissible only if its probative value exceeds its prejudicial effect. But that statement, it seems to us, is of little assistance unless it is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution; in other words, that there is no reasonable view of the evidence consistent with the innocence of the accused.[11]
[10] (1995) 182 CLR 461, 481-483.
[11] Ibid 483-484. See also R v Liddy (2002) 81 SASR 22, 34-37, [2002] SASC 19, [50]-[56].
Such similar fact evidence is commonly admitted when the identity of an accused is in issue in order to prove a pattern of activity having been undertaken by the same person. However, there is no reason why it should not be admissible in cases such as the present where the issue in each case related to the nature of the sexual activity and where evidence of the conduct, if accepted, gives rise to an objective improbability of the events occurring other than as deposed to by the complainants. However, one must nevertheless bear in mind the warning sounded in Phillips v The Queen[12] where, in the case of charges of numerous sexual offences, the evidence of events in respect of other complainants was tendered on the issue of consent. The evidence tendered must be relevant to the issue. In their joint judgment the Court observed:
"Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding."[13] Evidence that five complainants did not consent could not rationally affect the assessment of the probability that a sixth complainant did not consent.
[12] (2006) 225 CLR 303, [2006] HCA 4.
[13] (2002) 76 ALJR 1024, 1025, [2], Gleeson CJ, 190 ALR 370, 371. See also Smith v The Queen (2001) 206 CLR 650, 653-654, [6], Gleeson CJ, Gaudron, Gummow and Hayne JJ.
Similarly, in this case, the mere fact that one complainant did not consent was not relevant to the issue of whether another complainant consented and was not admissible in the case involving that other complainant. The trial Judge gave appropriate directions as to separate consideration of the counts relating to each complainant.
In this case, despite the fact that two of the complainants were sisters, it was not argued, and there was no evidence that would suggest, that there were joint concoctions or some other form of contamination such as would admit of the possibility of some other reasonable explanation for the similarities. In any event, the argument for the appellant concentrated on the cross-admissibility of the evidence in respect of C2 and C3 who were strangers to each other. Furthermore, the jury was directed to exclude the relevant evidence from their consideration if they considered that there was a possibility of concoction or contamination. Concoction or contamination as a possible explanation can therefore be put aside.
In Hoch the evidence said to be of striking similarity was:
1.All the boys were inmates, if that is the correct word at Tufnell Home.
2.That they were young boys, their ages being 13, 13 and 10.
3.That the accused was working as a supervisor at Tufnell Home.
4.In relation to the type of offences, they all involved penis play, both of the boys and of the accused.
5.On two of the occasions approaches were made to boys in showers.
6.In two of the cases use was made [by] the accused of the words along the lines of, 'It cleans it' when referring to touching or playing with the penis.
7.That these offences took place one at Tufnell Home itself, one at Scarborough House, Scarborough, which was associated with Tufnell Home, and one at Bribie on a Tufnell Home outing.
8.The time span was some six weeks covering the three offences.[14]
[14] Hoch v The Queen (1988) 165 CLR 292, 298-299.
The miscarriage of justice in that case occurred not because of any lack of a pattern of behaviour but because of the distinct possibility of concoction by the young complainants.[15] The evidence was not held to be inadmissible because of any differences in detail or because not every feature was common to every complainant.
[15] Ibid 297, 299.
The relevant evidence
The respondent relied on a number of key similarities in respect of each complainant. The complainants were all of similar age; the appellant approached all of them on foot in circumstances where it might have appeared to him that each woman was working as a prostitute; the places where the appellant approached each of the complainants were well-known as places where prostitutes worked; each woman was alone when the appellant approached her; each of them was invited to his lodgings, and in the case of C2 and C3, for an apparently non-sexual purpose; there was a similarity of the type of sexual acts performed during the course of the evening, all being performed violently and aggressively; there was the insistence on having unprotected sex and the threatening and aggressive manner of the appellant towards the women; there was the so-called schizophrenic manner which the appellant adopted during the night; there was the shepherding of each woman to the bathroom and toilet; finally, there was the insistence that the women stay until he left for work at 6 am or thereabouts and the measures taken to ensure that that occurred.
In my opinion the evidence, if accepted, revealed a pattern of activity by reason of the nature and violence of the acts and the method of enforced detention. This pattern gave rise to the objective improbability of the events occurring in a manner other than that deposed to by the complainants. As a result, the evidence given by each complainant corroborated or confirmed the veracity of the evidence given by the other complainants and was cross-admissible in the sense discussed in the authorities referred to above. There were unusual features common to each case, and these were features rendering it less likely that a person in the position of each complainant would consent. As submitted by the respondent, the evidence was capable of negativing, in each case, an innocent sexual association or, as alleged at the trial, a consensual or contractual arrangement for sexual services. It established what could be viewed as a formatted pattern of sexual behaviour on the part of the appellant, indifferent to the wishes or consent of the women in question.
The appellant relied on what was said to be significant differences. The first was said to be the different locations at which C1 and C2 on the one hand and C3 on the other hand were approached. In my opinion, that is not material. Both locations were known haunts of prostitutes. There was the difference in the manner of conveying or being conveyed back to the appellant’s lodgings. That too is insignificant. The significance was the luring of the women back to his lodgings by whatever means and for whatever purpose. There were differences in that C3 was allegedly raped not only vaginally but also anally and by way of fellatio and with the aid of a plastic bag being placed over her head and a tie being pulled around her neck. Once again, in my opinion, the details are insignificant. The significance of the actions in each case was their violent and aggressive nature. Finally there was said to be differences between the times and circumstances at which each of the complainants left the premises. In my opinion, these differences were immaterial. In each case there was a requirement placed on each complainant to remain until or until shortly before the appellant left for work.
In short, there was a pattern of activity involving unusual features and an underlying unity in each of the three episodes such that it raised, as a matter of commonsense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution. The fact that there were not guilty verdicts in relation to some of the charges does not undermine the submission. There are other possible explanations for those verdicts. Furthermore, the test of cross-admissibility is not whether the verdicts are consistent but whether there is an underlying consistency in the evidence led by the prosecution.
In my opinion there was no basis to exclude the evidence and therefore to justify separation of the trials on the basis that the probative force of the evidence was outweighed by its prejudicial effect.[16] Any prejudicial effect was only because the evidence was probative of the charges in question. Likewise, there was no basis to exclude the evidence and therefore to order separate trials on the application of any general unfairness discretion.[17] For these reasons I would dismiss ground 1 of the appeal.
Ground 6: Evidence as to recent complaint by C2
[16] See Perry v The Queen (1982) 150 CLR 580, 585, 604, 609; Sutton v The Queen (1984) 152 CLR 528, 534, 547, 549, 560, 564.
[17] See R v Lobban (2000) 77 SASR 24, [2000] SASC 48.
The appellant seeks permission to appeal against the convictions on the ground that the evidence of a complaint by C2 was wrongly admitted. In the alternative, the appellant submits that if the evidence was correctly admitted, then the trial Judge failed to direct the jury adequately as to its use.
C2 gave evidence that she locked herself inside her home after she was raped and did not speak to anyone for a week. A week after the event she called her sister, C1, from a telephone box. C2 started crying and told her sister what had happened. C2 explained that she met the appellant and gave his description and his name. In the same conversation her sister also explained to C2 what had happened when she went back to the house of the appellant the night before C2 had her encounter, to which C2 said; “Yes, I was attacked too”.
C1 gave a different account. According to her evidence, during the evening after C1 had been attacked, C2 phoned her to ask how she was. C1 did not say she had been attacked and did not say how she really felt. C2 said she was about to go out for a walk. C1 warned C2 to “Take care, be careful”. At about midnight C2 rang C1 again. She said she had met a man called Peter and told C1 where he lived. C1 said, “Stay on the streets. Don’t go with him”. She told C2 that he was a rapist, but said nothing of her own experience the previous night. She tried to discourage C2 from going with the appellant, and told her to “take care”.
The next morning C1 went to a phone box and rang C2 to see if she was alright. C2 sounded upset and asked C1 to come to her house. When C1 arrived at the house C2 was sitting on her bed, crying. C1 asked her what was wrong. Her evidence was:
[C2] said she got raped badly last night. She said she got raped repeatedly by Peter Wallace. She was in a really bad way, and she was too.
According to C1, C2 then began accusing C1 of getting her raped, C1 saying, “He did it to you, didn’t he”. There was then an unpleasant altercation between them until C1 left.
Neither at the trial nor on the application for permission to appeal was there an objection to the evidence of C1 concerning C2’s complaint. At the trial there was an unsuccessful objection to the evidence of C2 based solely on the written depositions. It was not suggested to either witness that C2’s complaint was fabricated. C2 was not cross-examined as to the timing of the complaint or to suggest it could or should have been made earlier. The objection on the application for permission to appeal was to the evidence of C2 of her complaint to C1.
Evidence of a complaint made by an alleged victim at the earliest reasonable opportunity is admissible on the trial of a sexual charge not as evidence of what occurred but as evidence of consistency of the account of the incident given by the alleged victim.[18] It is illustrative of consistency of conduct.[19]
[18] See the discussion of this question by King CJ in R v Gallagher (1986) 41 SASR 73, 76-78.
[19] R v Mustafa (2005) 91 SASR 62, 76, [2005] SASC 66, [56].
As was said by the Full Court of the Supreme Court of Victoria in R v Freeman,[20] the ultimate question must always be, “does the ‘complaint’ in the circumstances in which it was uttered, tend to buttress the prosecutrix’s credit as a witness”?
[20] [1980] VR 1, 5.
Admissibility depends on whether the complaint is given at the first reasonable opportunity and on the spontaneity of the complaint. By reference to a number of earlier cases Besanko J said in R v Mustafa:[21]
Relevant matters in the case of the requirement of first reasonable opportunity include the complainant’s age, the length of the delay, the extent to which the complainant was with the accused during the period of the delay, the nature of the relationship between them, the opportunity the complainant had to speak to other persons and her relationship with those persons. Relevant matters in the case of the requirement of spontaneity include the complainant’s age, the extent of her education, her relationship with the person to whom she is speaking and the nature of the questions asked. The matters which I have identified are by no means exhaustive.
[21] (2005) 91 SASR 62, 76, [2005] SASC 66, [56].
In that case Besanko J, with whom White J agreed, held that the question for the Judge in relation to the requirements of first reasonable opportunity and spontaneity is whether there is evidence which is capable of being regarded by the jury as making up those requirements.[22] Once admitted, it is for the jury to decide what weight to place on the complaint.
[22] Ibid 77, [60].
Returning to the evidence of C2, and accepting her unchallenged evidence that she locked herself inside her house for a week and did not speak to anyone, her evidence of her complaint to her sister was capable of demonstrating consistency with her evidence in that it was made shortly after the event and there was no inconsistency in its terms. As was submitted by the respondent, the consistency that underlies the admission of evidence of recent complaint is consistency of behaviour, not consistency between the evidence of the complainant and the person receiving the complaint. Complaint evidence may show the relevant consistency of behaviour, notwithstanding inconsistencies in the evidence. It was for the jury to decide what they made of the inconsistencies between the evidence of C2 and the evidence of C1 as to the making of C2’s complaint. The evidence of the complaint was admissible.
As to the trial Judge’s directions to the jury, C1 was the first of the complainants called by the prosecution. In the course of summarising C1’s evidence, the Judge referred to her evidence of C2’s complaint to her that she had been raped by the appellant. He foreshadowed that there would also be reference to evidence of a complaint by C3 to Ms H, a close friend of hers, and of what C3 said to Mr P, the subject of ground 7 below. The Judge explained to the jury that, in general, evidence of what someone says to another person out of court is not admissible in evidence. He then added: “So the evidence of [C3] and of [C2], if you find it was said, is not evidence of the truth of what either of them said”. He then explained in general terms how such evidence could be used to indicate consistency.
When discussing C1’s evidence the Judge did not refer to the different account and circumstances of C2’s complaint given in evidence by C2.
The Judge then summarised C2’s evidence, including that of her complaint to C1, but did not then or at any other time refer to the different account of C1. He did not give any further directions as to how the evidence of C2’s complaint should be used.
As earlier mentioned, C2 was not challenged as to the veracity of her complaint or its timing. Neither was C1. Neither counsel addressed the jury as to the inconsistencies between the evidence of C1 and C2 or whether C2’s complaint could be relied on. In those circumstances it is perhaps not surprising that the Judge did not see fit to address the apparent conflict other than to say, in relation to C2’s evidence, “if you find that it was said” and “if you find that conversation occurred”.
C1’s evidence of C2’s complaint bore all the elements of recent complaint if the jury were to accept her version. It may be that the jury did not accept C1’s evidence because of C2’s evidence that there was no contact for a week. If that was the case and they did accept C2, her evidence also had elements of recent complaint. Notwithstanding the differences, on either version there was evidence of recent complaint. In those circumstances, even though the Judge did not advert to the differences, there was no risk of a miscarriage of justice by that omission.
I would refuse leave to appeal on this ground.
Ground 7: Evidence of Mr P
C3 gave evidence that she was raped on a Friday night/Saturday morning. She gave evidence that at one stage the appellant placed a tie around her neck and pulled it really tight for a couple of minutes and that after the event she had “a couple of little rough marks around my neck but there was no bruising. It was just red scratchy marks”.
The prosecution called Mr P who gave evidence that he had come to know C3 in 2004 as a customer at the hotel where he worked as Gaming Manager. He came to realise that she also lived in the same premises as he did. He used to go to her place after work. He said that he saw her at her place on a Saturday or Sunday morning in 2004 when she “burst into tears” and he noticed “quite severe bruising on her neck” … “kind of like scratches and like – kind of like a hand had been on her throat. It was kind of red” … “Just – it was like indent marks. It was like someone had choked her”. She was trying to conceal the marks from him. He gave evidence that at some time “later” she indicated that those injuries were caused in relation to an assault without identifying the assault. Evidence as to Mr P’s observations of C3 and the form of evidence as to the later conversation concerning the assault was given without objection and by arrangement between the prosecutor and defence counsel.[23]
[23] Affidavit of Mark Norman sworn 20 November 2007, admitted on the hearing of the appeal.
The appellant argues that the evidence of Mr P was inadmissible, that the prosecutor misused the evidence in his closing address, that the trial Judge failed to correct the misuse of the evidence and that the Judge erred in directing the jury as to the use that could be made of the evidence.
The objection as to admissibility was based on relevance. It was not taken at trial. It was submitted that there was nothing to connect Mr P’s observations with the assault on C3 save that they both occurred at some time in 2004. There were also material differences in the description of the injuries by C3 and by Mr P. Notwithstanding those differences, there were similarities. Injuries to a person’s neck are unusual. Both C3’s description and Mr P’s observations occurred at a time when C3 was exhibiting signs of emotional distress. There was no evidence of any particular distress by C3 at any other time in 2004. In Mr P’s evidence there was reference by C3 to the injuries having been caused by “an assault”. There was also further evidence of recent complaint by C3 to Ms H where C3 complained that she had been raped in what she then described as an assault.
There was some evidence capable of connecting the two events. I consider that it was admissible. Its weight was a matter for the jury. Counsel for the appellant questioned the relationship between the two events in addressing the jury. The conversation as to the cause of the injuries was put not as evidence of the truth of the statement but as evidence of recent complaint. Without more, it did not qualify as such. However, the Judge was in a difficult position. The evidence was led without objection and by arrangement between counsel. It was used by the prosecutor in passing as evidence of the reliability of C3. That aspect was not addressed by counsel for the appellant. What was the Judge to say about it? He had to tell the jury, as he did, that if they found the conversation occurred it was not evidence of the truth of what was said. It could only be left as evidence of consistency and with the warning against the impermissible use of the evidence not objected to.
As to the prosecutor’s alleged misuse of the evidence, he drew the jury’s attention to it as evidence of support for the fact that C3 had suffered some injury to her neck, but the appellant’s counsel also pointed to the lack of any observation of injury by Ms H. There was nothing untoward concerning the use made by either counsel of the evidence. There was therefore nothing for the trial Judge to correct.
The appellant further complains that the Judge failed to direct the jury that there was no evidence from C3 that Mr P saw her neck after she was raped or at all. The fact of the matter is that she was not asked about any subsequent encounter with Mr P. The appellant also complains that the Judge did not direct the jury’s attention to C3’s evidence that there was no bruising on her neck. However, the Judge accurately summarised the evidence of both C3 and Mr P as to the nature of the injuries each had observed on C3’s neck.
It is further alleged that the Judge erred in directing the jury that the conversation deposed to by Mr P could be used to show consistency of conduct on the part of C3, namely that it was possible evidence of recent complaint. The Judge drew attention to the fact that C3 told Mr P that the injuries were caused in relation to an assault, but he also immediately reminded the jury that if they found that the conversation did take place, they could only use that evidence of the conversation to show consistency of conduct and not as evidence of the truth of the matters deposed to. To say any more about it than he did would have been to give undesirable prominence to the evidence and to elevate it to a significance which it could not bear.
In my opinion none of the complaints of the appellant relating to the evidence of Mr P give rise to an arguable case of miscarriage of justice. I would refuse permission to appeal on ground 7.
Ground 3: Inconsistent verdicts
This ground alleges that the verdicts on counts 8, 9 and 12 in relation to C3 were inconsistent with the acquittal on count 10 and with the acquittals on counts 1, 2 and 3 in respect of C1. It is said that the verdicts are therefore unsafe and unsatisfactory. At the hearing of the appeal the argument on inconsistency was limited to the verdicts relating to C3, namely the acquittal on count 10 (anal rape) and the convictions on counts 8 (false imprisonment), 9 (vaginal rape) and 12 (fellatio rape). It will be remembered that the jury was directed to acquit on count 11, there being no evidence of digital penetration by the appellant.
The short answer is that there is no inconsistency in the verdicts. The appellant admitted that he had had vaginal and oral intercourse with C3 but denied anal intercourse. In addressing the jury the appellant’s counsel had pointed out that there was no medical evidence of damage to the anus and that neither C1 nor C2 had alleged anal rape.
The verdicts do not suggest some form of compromise on the part of the jury. They are consistent with the jury having given the benefit of the doubt to the appellant where the particular act, unlike other relevant acts, was denied by the appellant. I would reject this ground of appeal.
Ground 5: Unreasonable verdicts
This ground alleges that the verdicts of guilty in relation to the counts concerning C2 and C3 were unreasonable and against the weight of the evidence.
It is well settled that in determining this issue an appellate court must consider the whole of the evidence and have regard to the trial Judge’s summing up.[24] The ultimate question is whether this Court thinks that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[25]
[24] Gipp v The Queen (1998) 194 CLR 106, [1998] HCA 21, 114, [18], Gaudron J, 123, [49], McHugh and Hayne JJ, 150, [128], Kirby J, 164, [170]-[171], Callinan J. See also R v Liddy (2002) 81 SASR 22, 105, [2002] SASC 19, [311]-[312].
[25] R v Liddy (2002) 81 SASR 22, 105-106, [2002] SASC 19, [311], citing M v The Queen (1994) 181 CLR 487, 494-495, Mason CJ, Deane, Dawson and Toohey JJ.
In support of this ground the appellant relies in part on the grounds of appeal mentioned above, particularly grounds 1 and 6. In my view, they have not been made out. He relies on the fact that there was no forensic or medical evidence to support the evidence of C2 or C3 and that the trial was essentially a contest between the opposing evidence on oath of the two complainants against the sworn evidence of the appellant. In the case of C2 he points to a number of matters going to her credit. This included her denial that she was engaged as a prostitute by the appellant in light of other evidence from her sister, C1, which on one interpretation might suggest that she was. He complains that that was not the subject of any direction by the trial Judge. He points to the unlikelihood of C2’s evidence that she was simply on the street in question to get cigarettes, ice-cream and chocolate and the unlikelihood of the coincidence, on the prosecution case, that the appellant met C1 one night and C2 the next night on the same street.
In the case of C3 the appellant points to her denial that she was working as a prostitute on the night in question in the light of her admission that she regularly worked as a sex worker and of the agreed fact that in the early morning of 9 November 2002 she told a police officer that she was then “working” and that her services cost $100 to $120, but that all taxi drivers get a special deal.
The appellant pointed to the unlikelihood of her evidence, if she was not a prostitute, that she met the appellant, who was a stranger, on the street, gave him a lift home, agreed to go inside for coffee and that she could not remember driving the appellant back into town after she had been at his house. The evidence of the appellant was that she did.
He complains about a failure on the part of the trial Judge to direct the jury relating to the use of that evidence which might reflect adversely on her credit.
There were grounds on which the credit of these two complainants could be and was attacked. On the other hand, there was support for the evidence of both witnesses by the similarities and conduct of the appellant and, in both cases, evidence of recent complaint.
As to the attack on C2’s credit on the basis that she was in fact working as a prostitute, if the jury accepted that, it may well have reinforced her credit as a witness because of the unlikelihood, otherwise, of the appellant meeting C1 and C2 on successive nights on the same street. Similarly, if the jury accepted that C3 was working as a prostitute, the appellant’s assertion of the unlikelihood of C3 meeting the appellant and offering him a lift home loses much of its force.
There was evidence on which the jury could properly convict. The acceptance or otherwise of the evidence of C2 and C3 was a matter for the jury in the light of other evidence properly admitted. The Judge gave adequate directions on the evaluation of the evidence of witnesses, particularly that of the complainants, and directed the jury that if they considered C2 and C3 were not telling the truth in some respects they would have to consider what implications that had for their evidence about being imprisoned and raped. There was nothing in the evidence or in the Judge’s summing up which suggested that the verdicts of guilty that were returned were or could be unreasonable. This ground of appeal therefore fails.
Conclusion
No other grounds of appeal were pressed at the hearing. It follows that I would refuse permission to appeal on grounds 6 and 7 and that I would dismiss the appeal on all other grounds.
VANSTONE J: I have had the advantage of reading the reasons in draft of Bleby J. I agree with Bleby J that the application for leave to appeal on grounds 6 and 7 should be refused and the appeal itself should be dismissed. In respect of grounds 1, 6 and 7 my reasons for so finding follow. As to grounds 3 and 5, I am content to rely on the reasons expressed by Bleby J. Grounds 2 and 4 were not pursued, leave to appeal having earlier been refused.
The relevant facts of the matter are set out in the reasons of Bleby J and it is unnecessary for me to repeat them. I shall use the same nomenclature in relation to the witnesses in the trial.
Ground 1: Failure to order separate trials
The first ground of appeal asserts that the learned trial judge erred in failing to order a separate trial in relation to counts 8 to 12, being the charges arising from the evidence of C3. There was no contest that the charges were properly joined. Rather, the application for an order for a separate trial for the C3 counts was made pursuant to s 278(2) Criminal Law Consolidation Act 1935 (SA).
The general principle under consideration seems to have been refined where the charges are of a sexual nature. I understand the applicable principle to be as follows. Where an Information contains charges of a sexual nature which are based on the evidence of two or more complainants and where the evidence of one complainant is not admissible in respect of the other charges, then the need to prevent the accused suffering impermissible prejudice generally (if not universally) requires a direction for separate trials: De Jesus v The Queen (1986) 61 ALJR 1, per Gibbs CJ at 3, per Mason and Deane JJ at 6, per Brennan J at 7; Hoch v The Queen (1988) 165 CLR 292 per Mason CJ, Wilson and Gaudron JJ at 294, per Brennan and Dawson JJ at 298.
It was accepted in this case that unless the charges concerned with C1 and C2 on the one hand and C3 on the other were cross-admissible, an order separating the C3 charges should have been made.
The exclusionary rule is that “evidence that reveals that the accused is a person of bad character is not admissible if it proves no more than that he or she has a general disposition or propensity to commit crime or crime of a particular kind”: Pfennig v The Queen (1995) 182 CLR 461 per McHugh J at 512, citing Makin v The Attorney-General (NSW) [1894] AC 57.
Propensity evidence may be relevant and admissible because of the light it throws on any of a number of issues in a case. For example, it might assist in proving identity or intention, or in disproving accident or mistake or innocent association: Thompson v The Queen (1989) 169 CLR 1 at 16.
The probative value of the evidence might arise from the fact that it bears striking similarities with the allegations made in relation to another offence for which the accused is on trial, but equally its strength might lie in the “‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ [which it reveals] such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution”: Hoch v The Queen (1988) 165 CLR 292 at 294-295. The process of reasoning involved is that of “admeasuring the probability or improbability of the fact or event in issue, … given the fact or facts sought to be adduced in evidence”: Martin v Osborne (1936) 55 CLR 367 per Evatt J at 385. To put it slightly differently, there needs to be such a nexus between the various sets of allegations that they must either all be true or have arisen from “a cause common to the witnesses or from pure coincidence”: Director of Public Prosecutions v Boardman [1975] AC 421 per Lord Wilberforce at 444.
The sole criterion for the admission of the evidence is the strength of its probative force, rather than any judgement that one or more of the labels mentioned above is apt to fit it: Hoch at 294. The degree of probative force required has been described as such that to exclude the evidence would be “an affront to common sense”: Boardman per Lord Cross of Chelsea at 456; and as such that it “clearly transcends its merely prejudicial effect”: Perry v The Queen (1982) 150 CLR 580 per Brennan J at 609; Phillips v The Queen (2006) 225 CLR 305 per the Court at 320. The test though, in this country, is usually stated in terms that the probative value or cogency of the evidence must be such that “if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged”: Hoch at 294; Pfennig at 483; Phillips at 323.
The appellant placed particular reliance on the recent case of Phillips in arguing that the level of probative value required to render the two groups of charges cross-admissible was not reached. Phillips stood trial on eight counts charging sexual crimes committed on six girls aged in their early to mid teenage years. The defence in relation to the charges was, for the most part, a claim of consent. The probative value of the evidence of the other complainants was said to lie in the improbability that all six would have lied in claiming they did not consent to the appellant’s dealings with them. The judge directed the jury along those lines. Phillips’ appeal to the Queensland Court of Criminal Appeal was unsuccessful.
Upholding the prisoner’s further appeal, the High Court pointed out (at 318) that the way in which the similar fact evidence was put to the jury confined its relevance to proving the mental state of each of the complainants – that is whether each consented to the appellant’s conduct – rather than it fulfilling its usual role of proving a pattern or system of conduct or disposition on the part of the accused. However, the Court held that the mere fact that one complainant might not have consented to intercourse with Phillips was not probative of the issue of whether another complainant consented.
Before this court the respondent argued that the relevance of the evidence went beyond the issue of each complainant’s consent. It was put to the court that the evidence revealed a system or pattern in the appellant’s conduct and that there was an underlying unity as between the three sets of allegations. It was said that the evidence met the required degree of probative force. The respondent relied on a number of similarities in respect of each complainant’s story. The complainants were all of similar age; the appellant approached and “picked up” all of them on foot on the street in circumstances where it might have appeared to him that each woman was working as a prostitute. The complainants were alone when approached. All three were invited to his lodgings, in the cases of C2 and C3, for an apparently non-sexual purpose. The sexual acts were all performed violently and aggressively. The appellant insisted on having unprotected sex. The appellant behaved in a threatening and aggressive manner towards the women. Significantly, each woman described a marked change in the appellant’s presentation or personality from being pleasant and friendly initially, to being, as C2 said, “an animal”, and menacing. C1 said that after the appellant told her to take off her clothes she started to panic, as he became “very aggressive and showed violence in his nature.” C2 said he tended to “schiz out”. She referred to a “changed personality”. In the case of C3 the description extended to him changing back again: “lift[ing]” from an “aggro, forceful” demeanour during intercourse back to an apologetic one later on. Each woman spoke of being shepherded to the bathroom and toilet. Finally, and notably, all the women were told they would have to stay there until the appellant left for work at about 6 o’clock the next morning.
The appellant relied on what were said to be significant differences between the accounts. Counsel pointed to the different location at which C3 had been approached. There were said to be differences in the manner in which C3 was conveyed back to the boarding house where the appellant lived. The complainant C3 claimed she was raped, not only vaginally, but also anally and by way of fellatio, and that a plastic bag was placed over her head and a tie placed around her neck. Then, the differences in the times and circumstances in which the complainants left the premises were relied on.
I agree that in a case such as this, differences in the accounts can be of significance. They can detract from the suggested system or pattern or striking similarities. On the other hand, some differences are inevitable in circumstances such as these where the way events developed depended not only on the appellant and his conduct, but also on the reactions to him of all the complainants. While there might have been differences in the location where the women were met and the way in which they then accompanied the appellant and their reasons, the fact is that both locations were known to be frequented by prostitutes and all the women were encouraged to accompany the appellant into his lodgings. The use of the plastic bag and tie in relation to C3 was an important difference, but on the other hand, could have represented an escalation of the appellant’s conduct, or could have been perceived by him to be necessary because of her reaction to his conduct. It did not necessarily represent a deviation from the pattern. The fact that there were differences in the times and circumstances in which the complainants left the premises was, in my view, rather swamped by the striking feature that each woman was earlier told that she would have to remain with him until, or not long before, he left for work at 6 o’clock.
I agree with the respondent’s argument that, here, the relevance of the evidence went beyond the issue of consent. Therefore Phillips’ case is distinguishable. In my opinion, notwithstanding the differences, there was indeed a pattern common to all three episodes such as to raise, as a matter of common sense and experience, the objective improbability of the events having occurred other than as alleged by the prosecution. I consider that the level of probative force was such as to answer the Hoch test. The fact that there were acquittals in relation to some of the charges does not undermine that conclusion. Rather, it demonstrates the care with which the jury were instructed to, and did, apply the evidence of each complainant in relation to the others and the particular attention given by the jury to the matter of consent on each occasion.
For these reasons I would dismiss ground 1 of the appeal.
Ground 6 – Recent complaint by C2
The appellant seeks permission to argue a ground of appeal asserting that the judge erred in admitting evidence of a complaint by C2 to her sister, C1. It is further submitted that the judge’s directions in relation to that evidence were inadequate.
C1 gave evidence of a conversation with her sister one morning in which C2 told C1 of having been raped the night before. According to C1’s evidence that conversation occurred after C1 had gone to C2’s home, following a telephone call from C2 in which she was very upset. There was no objection to this evidence.
C2’s account of the occasion of her complaint to C1 was quite different. She said it occurred over the telephone about a week after the rapes. It does not appear that anyone suggested that the two accounts were other than of the same conversation. This evidence was the subject of objection.
As I understand the argument it is that since the complainant herself did not claim to have made a complaint of the offences at a time sufficiently proximate to the event, then her evidence of later making a complaint should have been excluded. Counsel argued that admissibility must turn on what the complainant says about the timing of her own complaint, because it is her credibility which is in issue and it is the consistency of her conduct which is sought to be demonstrated by this evidence. It was further argued that because of the discrepancy between the two accounts, not only could the prerequisite of recency not be satisfied, but the statements of C2 were incapable of buttressing her credibility. It followed that none of the evidence was admissible.
I cannot think that the submissions are sound. It was open to the jury to conclude on the evidence of C1 that the complaint was recent and to treat it as evidence in support of C2’s credibility. Even in the absence of C2’s evidence, C1’s evidence of receiving the complaint would have been admissible: Breen v The Queen (1976) 180 CLR 233. As it was, the conflict between the two witnesses was for the jury to consider. Such conflicts are not unusual. I add that it would not have been appropriate for the judge to make a preliminary finding about which version was preferable. (Nor did counsel expressly suggest this.)
I refute the argument that admissibility must turn on the evidence of the complainant. There is no reason why that should be so. In fact, the value of the evidence of complaint is enhanced if it emanates from an independent source.
My conclusion as to the admissibility of the complaint evidence of both women would have been the same had their accounts of the timing been reversed. In other words, if C2 had asserted that she complained promptly, but C1 said it was a week later, equally, in my view, the evidence would have been admissible. The critical issue was that one account of the conversation amounted to recent complaint. Once that was admitted, then it provided a platform for admission of the evidence of the other party, at the insistence of either side. Then, the inconsistencies were before the jury for consideration.
It is probably plain from what I have said that I would not have thought that, standing alone, a complaint made a week after the event, after a voluntary withdrawal from contact with friends and family, would be admissible. In my view it would not be a complaint made at first reasonable opportunity.
The trial judge directed the jury correctly as to the proper use of such evidence of recent complaint as it found, that is, that it was not evidence of the truth of what was said, but only of consistency. In summarising the complainant’s evidence he related the respective accounts of the complaint conversation. The judge did not specifically contrast the two accounts. No complaint was made to him about his direction. Since it appears that defence counsel’s address did not place any emphasis on the variations between the respective accounts of the conversations, I do not think the judge was required to dwell on the matter. I consider it would have been helpful to direct the jury that a complaint made a week after the event was not recent and could not indicate the sort of consistency that recent complaints were capable of showing. However, in the absence of any emphasis being given to the issue (no doubt for forensically sound reasons) or any request for redirection, I do not think that the point has substance. Therefore, I would refuse leave to appeal on this ground.
Ground 7: Evidence of Mr P
The evidence of C3 was that as a result of the appellant placing a tie around her neck and pulling it tightly for a couple of minutes she sustained “a couple of little rough marks … red scratchy marks” around her neck, but no bruising.
A witness now referred to as “Mr P” gave evidence that he was acquainted with C3 in 2004. He lived nearby to her and he would sometimes go to her home. He said he recalled an occasion in 2004 when he visited her and found her in an unusual mood. When he asked whether she was all right she burst into tears. He said she appeared to be hiding her neck and that he noticed quite severe bruising to it. He saw “kind of like scratches and like – kind of like a hand had been on her throat. It was kind of quite red. … It was like indent marks. It was like someone had choked her.” In response to a leading question Mr P agreed that C3 had indicated that the injuries were “caused in relation to an assault”.
The appellant argues that the evidence of Mr P was inadmissible for several reasons. It is put that there was no sufficient nexus between the slight injuries described by C3 to the court as against those seen by Mr P. There was no evidence from C3 that she ever showed the injuries to him and the two descriptions were in some respects at odds. Beyond saying that he saw the injuries in 2004, Mr P could not narrow down the time of his observation. The appellant argued that Mr P’s evidence that C3 told him the injuries arose from an assault was hearsay.
In my opinion the evidence of the injuries observed by Mr P was admissible if the jury could have considered that the injuries were the result of the assault deposed to by C3. That was so notwithstanding the differences in the two descriptions of the injuries. The jury were entitled to consider the two descriptions and to weigh the unlikelihood that C3 should suffer two traumatic events to her neck in 2004, both involving scratches. It is not of consequence – in terms of admissibility – that C3 did not say in evidence that she showed the marks to Mr P.
Mr P’s evidence that C3 said the injuries were “caused in relation to an assault” is a different matter. The respondent does not suggest that the woman’s statements to Mr P were any part of a recent complaint. Accordingly, statements made by C3 to Mr P fell to be excluded either as inadmissible hearsay, or as being simply irrelevant. However classified, such statements should not normally have been admitted.
However, the matter is complicated here because of an agreement apparently struck between counsel as to what material would be led from Mr P. An affidavit of the prosecutor attesting to such an arrangement was tendered before us without objection. It explains something of the arrangement to which counsel came and it also explains why there was no objection to Mr P’s evidence of C3’s reference to an assault. Therefore, apparently in accordance with counsels’ agreement, inadmissible material went before the jury.
This created a difficulty for the learned trial judge (at least in my mind) in terms of what directions should be given as to it. It was not evidence of a recent complaint and therefore the statement of C3 could not be put to the jury as potentially showing consistency. Indeed there was other evidence of a recent complaint by C3 to a Ms H where C3 said that she had been raped in what she described as “an assault”. However, under normal circumstances the jury would not have the account to Mr P and would not be able to use C3’s description to Ms H, along with the use of the word “assault” to Mr P, in order to link the injuries seen by Mr P with the charges. The plain fact is that it was C3 who should have given evidence proving the link between the rapes and the injuries seen by Mr P and in the absence of that it was not permissible to use her out of court statements for that purpose.
Nevertheless, the importance of Mr P’s evidence was in the description of the injuries he saw. The jury would likely have concluded that those injuries were the result of the appellant’s conduct, as opposed to some other misfortune befalling her. Since there was separate evidence of recent complaint, Mr P’s evidence did not make good what might otherwise have been a deficit in the prosecution case. In my view whilst the judge probably went too far in directing the jury that Mr P’s evidence that she mentioned an assault could show consistency of conduct by C3, his dilemma (apparent or not) in how to direct on the evidence was a result of the acquiescence of counsel in introducing inadmissible material.
The appellant’s further complaint in respect of this evidence is that the judge failed to direct the jury upon the inconsistencies between C3’s description of her injuries and that of Mr P. However, the judge accurately summarised the evidence of both witnesses as to the nature of the injuries. I do not consider that he was required to do more.
In my opinion none of the complaints of the appellant relating to the evidence of Mr P give rise to an arguable case of miscarriage of justice. I would refuse permission to appeal on ground 7.
Conclusion
I would refuse permission to appeal on grounds 6 and 7 and dismiss the appeal itself.
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