Rodd v The Queen

[2000] WASCA 329

RODD -v- THE QUEEN [2000] WASCA 329

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 329
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:214/1998	Heard:	9 AUGUST 2000
Coram:	IPP J OWEN J HEENAN J	Delivered:	3/11/00
No of pages:	23	Judgment Part:	1 of 1
Result:	Appeal allowed Re-trial ordered
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Parties:	TERRENCE RUDOLF RODD THE QUEEN
Catchwords:	Criminal law and procedure Appeal against convictions Sexual offences Evidence of complainant uncorroborated Whether trial Judge caused jury to consider its verdict on baiss of choice of evidence Whether trial Judge inaccurately summarised Crown's case Whether trial Judge caused jury to consider that defence had to establish complainant had motive to lie
Legislation:	Nil
Case References:	King v R (1986) 161 CLR 423 Latham v R [2000] WASCA 57 Liberato v R (1985) 159 CLR 507 Liberato v The Queen (1985) 159 CLR 507 Mraz v R (1953) 93 CLR 493 Palmer v R (1998) 193 CLR 1 Taylor v R [2000] QCA 96 Topalidis v R [1999] QCA 376 Van den Holk v R (1986) 161 CLR 158 Verdon v R (1987) 30 A Crim R 388 BRS v The Queen (1997) 191 CLR 275 F v R (1995) 83 A Crim R 502 Greig v R, unreported; CCA SCt of WA; Library No 970122; 26 March 1997 Jarvis v The Queen (1993) 20 WAR 201 Jones v R (1997) 191 CLR 439 Kauhanen v R [1999] WASCA 14 Klavins v R [1999] WASCA 37 M v R (1994) 181 CLR 487 Mill v The Queen (1988) 166 CLR 59 Pearce v R (1998) 194 CLR 610 Ruane v R (1979) 1 A Crim R 284 Smedley v R, unreported; CCA SCt of WA; Library No 990146; 23 March 1999

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : RODD -v- THE QUEEN [2000] WASCA 329 CORAM : IPP J

OWEN J
HEENAN J

HEARD : 9 AUGUST 2000 DELIVERED : 3 NOVEMBER 2000 FILE NO/S : CCA 214 of 1998

CCA 215 of 1998

BETWEEN : TERRENCE RUDOLF RODD

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeal against convictions - Sexual offences - Evidence of complainant uncorroborated - Whether trial Judge caused jury to consider its verdict on baiss of choice of evidence - Whether trial Judge inaccurately summarised Crown's case - Whether trial Judge caused jury to consider that defence had to establish complainant had motive to lie

Legislation:

Nil

(Page 2)

Result:

Appeal allowed

Re-trial ordered

Representation:

Counsel:

Appellant : Mr R W Richardson
Respondent : Mr R E Cock QC & Mr A G Elliott

Solicitors:

Appellant : Aboriginal Legal Service of Western Australia
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

King v R (1986) 161 CLR 423
Latham v R [2000] WASCA 57
Liberato v R (1985) 159 CLR 507
Liberato v The Queen (1985) 159 CLR 507
Mraz v R (1953) 93 CLR 493
Palmer v R (1998) 193 CLR 1
Taylor v R [2000] QCA 96
Topalidis v R [1999] QCA 376
Van den Holk v R (1986) 161 CLR 158
Verdon v R (1987) 30 A Crim R 388

Case(s) also cited:

BRS v The Queen (1997) 191 CLR 275
F v R (1995) 83 A Crim R 502
Greig v R, unreported; CCA SCt of WA; Library No 970122; 26 March 1997
Jarvis v The Queen (1993) 20 WAR 201
Jones v R (1997) 191 CLR 439
Kauhanen v R [1999] WASCA 14
Klavins v R [1999] WASCA 37
M v R (1994) 181 CLR 487


(Page 3)

Mill v The Queen (1988) 166 CLR 59
Pearce v R (1998) 194 CLR 610
Ruane v R (1979) 1 A Crim R 284
Smedley v R, unreported; CCA SCt of WA; Library No 990146; 23 March 1999

(Page 4)

1 IPP & OWEN JJ: This is an application for extension of time within which to appeal and an appeal against the conviction of the appellant on three counts of indecent assault, 12 counts of sexual penetration without consent and one count of attempted sexual penetration without consent. The appellant also seeks leave to appeal against the sentence of 12 years' imprisonment (with eligibility for parole) imposed following those convictions.

2 The notice of appeal was filed one day out of time. The respondent did not oppose the application for extension of time. At the hearing the Court granted the extension and we need say no more about that question.

Background

3 The incidents from which the charges arose occurred at a house in Albany on the night of 19 March 1998. The appellant was then 34 years of age. The complainant was 17 years of age. She was an occupant of the house. She had previously met the appellant but only on one or two occasions. At about 11.00 pm that night the complainant and another occupant, a 16-year-old girl, were alone in the house. The appellant and another adult male arrived at the house and were admitted.

4 It is common ground that during the course of the night various sexual acts occurred between the complainant and the appellant. The appellant denies that some of the individual acts or conduct that form the basis of some of the counts in the indictment occurred at all but in general terms the sexual activity is admitted. However, the main question at the trial was whether the complainant had consented.

5 The appellant was charged with 18 sexual offences. The trial Judge directed that the jury return not guilty verdicts on two of the counts because of a lack of evidence. He was convicted on each of the remaining 16 counts.

The Grounds of Appeal

6 The notice of appeal and grounds of appeal were amended from time to time. Because of this it will be convenient to describe the grounds of appeal by subject matter rather than by number.

7 One complaint is that the verdicts on the five counts of penile penetration and three counts of cunnilingus were unreasonable and cannot be supported by the evidence.

(Page 5)

8 The next ground is that, in the circumstances of this case (oath against oath), the learned trial Judge should have given a direction in the terms set out by Brennan J in Liberato v R (1985) 159 CLR 507 at 515. In particular, the trial Judge should have given a specific direction to the jury to the effect that, even if they positively disbelieve the appellant, they still not convict him unless the Crown had satisfied them of his guilt beyond a reasonable doubt.

9 Another area of complaint is based on Palmer v R (1998) 193 CLR 1. It is said that some remarks in the summing up suggested that the jury should consider the absence of any motive that the complainant had to lie. The appellant contends that the trial Judge erred by failing to direct the jury that by starting or finishing with that approach was irrelevant to their deliberations and that it was likely to lead them into error by reversing the burden of proof. There is a related matter. In summarising the Crown case the trial Judge made a statement that the appellant says is to the effect that the complainant was a virgin. The appellant contends that there was no evidence to that effect and that the direction was highly prejudicial and irrelevant.

10 Finally, the appellant complains that the trial Judge erred in failing to direct the jury that the Crown had the burden of proof of establishing that the applicant did not have an honest and reasonable belief that the complainant consented to the acts charged.

Lack of Evidence to Support Some of the Convictions

11 A series of sexual acts took place over an extended period during the course of the night. The appellant did not leave the house until the next morning. The appellant was charged with, among other things, five counts of penile vaginal penetration and three counts of engaging in cunnilingus. The Crown Prosecutor made it clear in his opening that the complainant was unsure as to the exact sequence in which the events occurred. That led to this exchange in her evidence in chief:

"Now, you say he put his penis in your vagina. How many times did he do that in all - roughly? … Through the night?

Yes? … I think it was about four or five." [emphasis added]

12 The appellant admitted two acts of penile penetration but denied that any others had taken place. Counsel for the appellant submitted that the whole of the complainant's evidence about the acts of penile penetration

(Page 6)

was coloured by this exchange, and in particular by the words "roughly" and "I think". Accordingly, the evidence was so uncertain that a reasonable jury could not have been satisfied beyond reasonable doubt that five acts of penile penetration had occurred. It is not entirely clear whether counsel was arguing that it was dangerous to allow any of the five relevant convictions to stand or whether three of them would have to be set aside.

13 Without setting it out in full, we refer to the following exchanges in the complainant's evidence in chief which, in our view, can be related to each of the five counts in which an allegation of penile penetration is made:

Count 5: appeal book 60B ("he inserted his penis and had intercourse").

Count 7: appeal book 61B ("he made me get on top, I think it was twice" - one of these occasions).

Count 8: appeal book 61B ("one time I was on my stomach").

Count 10: appeal book 62D ("one time he put my legs over his shoulder").

Count 16: appeal book 64A ("we had intercourse and I was on top" - the other occasion referred to at appeal book 61B).

14 In our opinion this was all evidence to which a jury could properly have regard and, if they accepted it, on which they could convict. Although the complainant used the phrase "I think" on some occasions it was for the jury to assess that evidence. In our view, it does not render the evidence so uncertain that it was dangerous for the jury to have acted on it.

15 In relation to the three counts in which acts of cunnilingus are alleged, we think that the same considerations apply. At appeal book 59E the complainant gives evidence of one such act. Then, having described an act of penile penetration she said, at 60E: "he went back down on me again" (our emphasis). Later she described an act of fellatio during which the appellant was performing cunnilingus. In our view this was evidence on which the jury could properly have formed the view that there were three separate acts of cunnilingus.

16 We should add that at one point in the summing up the trial Judge told the jury:

(Page 7)

"Then you go through the indictment. First determine whether you are satisfied on each charge that the sexual act actually took place and then if you are satisfied of that, are you satisfied that it was without the complainant's consent freely and voluntarily given?"

17 Those comments appear in a passage that will be criticised for different reasons. Nonetheless, in our view it could not be said that the jury were left in any doubt that they had to find evidence to support the allegation of each individual sexual act. The first ground of appeal has not been made out.

The Liberato Ground

18 The central issue in the trial was whether the complainant had consented to the sexual activity. That, in turn, required an assessment of the credibility and reliability of the testimony given by the complainant and the appellant. This is what is sometimes referred to as an "oath against oath" case. The complaint of the appellant is that the trial Judge's summing up may have left the jury with an impression that they should determine the issue simply on the basis of whose evidence they preferred. Counsel for the appellant submitted that this was a case where the trial Judge should have told the jury that even if they positively disbelieved the appellant they would still need to decide whether the complainant's evidence was sufficient to give rise to a reasonable doubt.

19 In Liberato Brennan J said, at 515:

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that

(Page 8)

evidence if that evidence gives rise to a reasonable doubt as to that issue."

20 It would be trite to say that it is not necessary, in order to comply with this requirement, that the direction must laboriously follow, word for word, the formulation contained in Brennan J's dicta. What is necessary is a direction that will remove any "significant possibility that … [the] jury has convicted on the basis of a choice between the Crown and defence witnesses as distinct from being satisfied beyond reasonable doubt of the ingredients of the charge against the accused": Liberato per Deane J at 520. It is not at all unusual for a trial Judge to use the words "positively believe" in this context. However, the absence of those exact words will not necessarily mean that the direction is defective. A trial Judge must tailor the direction to the circumstances of the case in which it is given. It must be a direction that supports the orthodox approach to the standard of proof and the onus of proof.

21 In her summing up to the jury, the trial Judge commenced with what was accepted to be orthodox and unobjectionable statements as to the standard and onus of proof. In particular, her Honour told the jury that there was no obligation on an accused person to give evidence and, if he did, he was not required to prove a defence. It was for the Crown to negative a defence. However, there was a particular passage which, counsel for the appellant submitted, had a tendency to leave the jury confused about the nature and operation of the criminal onus. That passage is as follows:

"In this particular case I would have thought that the evidence of the complainant and the evidence of the [appellant] don't sit well together in some areas. In some areas they are quite consistent. In other areas you couldn't believe them both at the same time, if I could put it that way. There's a conflict and that conflict you are going to have to resolve; but always remember because this is a criminal trial that if you are left where you are uncertain, then you are not satisfied beyond reasonable doubt."

22 This is the statement that, according to counsel for the appellant, might have left the jury with the impression that their fundamental task was simply to make a choice between the testimony of the complainant and that of the appellant. If they were uncertain as to which they preferred they must acquit. But if they preferred the evidence of the complainant, they could convict. This would, of course, be wrong. Even if they preferred the evidence of the complainant, the jury were obliged to

(Page 9)

go further and decide whether all elements of the offences had been established beyond reasonable doubt. Counsel submitted that in the absence of a statement that (or to the effect that) even if they were positively to disbelieve the evidence for the defence it remained necessary to carry out the additional reasoning process, there remained a significant possibility that the jury might have been confused as to the true nature of their task.

23 A little later in her remarks the trial Judge explained to the jury that there was no requirement that the evidence of the complainant be corroborated. Having explained that principle, the trial Judge said:

"Depending on your view of the complainant, if you accept her evidence as truthful and cogent, as reliable, you are entitled to convict the accused man on that evidence alone, so long as you are satisfied beyond reasonable doubt of his guilt."

24 Counsel for the appellant did not challenge the accuracy of this direction. However, towards the end of the summing up and in the context of a review of the evidence relating to the individual sexual acts, the trial Judge returned to the topic. Her Honour said:

"Now, in approaching this, ladies and gentlemen, I would suggest that you may find it convenient to first determine - first you should determine whose evidence you accept and are willing to rely on and then to go through the indictment. First determine whether you're satisfied in each charge that the sexual act actually took place and then if you're satisfied of that, are you satisfied that it was without the complainant's consent freely and voluntarily given?" [emphasis added]

25 There is a danger in an appellate tribunal going through a summing up word by word, line by line and examining individual phrases or passages out of context or without ascribing to them their relative significance when taken as part of a whole. The passage commencing with the words "depending on" is clearly an accurate and sufficient instruction. We think it would have been better had it been made at the same time as the earlier statement which counsel for the appellant categorised as the "oath against oath" comment. The question then is whether the further comment to which we have referred leaves open a "significant possibility" that the jury has made a choice between the Crown and defence witnesses and, on the basis of that choice, decided whether the sexual acts took place and whether the complainant

(Page 10)

consented. In our view, some criticism can be made about the way that the directions were structured but considering the summing up as a whole, we are not sure that there would have been confusion in the minds of the jurors as to the true nature of the task with which they were confronted.

26 Had the Liberato ground been the sole basis of the challenge to these convictions I doubt whether it would have succeeded.

The Palmer Ground

27 There are two critical passages from the summing up that are relevant to this ground of appeal. Both occur in a section where the trial Judge was summarising the main features of the prosecution case:

"The Crown also asks, 'Why would this girl make it up?' There's simply no evidence of any motive, and asks how a 17-year-old girl - not any 17-year-old but the girl you saw giving her evidence. How could she have made up this lengthy and complex complaint and then come to court and consistently give in her evidence, both in chief and under cross-examination, and suggests that that consistency shows that it must be true." [emphasis added]

"The Crown also asked whether this sexual behaviour is consistent with sex which a shy young girl, such as this 17-year-old, would have on her first occasion of having sex. The Crown also suggests that it would be extraordinary for the 17-year-old girl, depending on your assessment of her, to make up the incident of fellatio in the toilet. That would be an extraordinary humiliating and embarrassing incident. The fact that she did give that forthright evidence you should accept as true." [emphasis added]

28 In Palmer Brennan CJ, Gaudron and Gummow JJ said, at 7 - 8:

"It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses

(Page 11)

of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.

If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is 'oath against oath'. In such a case, to ask an accused the question: 'Why would the complainant lie?' is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused. As Gleeson CJ, speaking for the Court of Criminal Appeal of New South Wales, said in F v R (1995) 83 A Crim R 502 at 511 - 12:


'the 'central theme' of the case, according to the trial judge, could be found in the question, 'Why would the complainant lie?' That is a question, often left unspoken, which usually hovers over cases of this nature. ... Whilst that question, sometimes spoken, sometimes unspoken, is often of great practical importance, it is never the 'central theme' of a criminal trial. At a criminal trial the critical question is whether the Crown has proved the guilt of the accused person beyond reasonable doubt. Just as the law does not require the Crown to prove a motive for the criminal conduct of the accused, the law does not require the accused to prove a motive for the making of false accusations by a complainant.' "

29 The mischief to which the principle arising from Palmer is directed is the tendency of an inquiry into motive to threaten the integrity of the trial process by effectively reversing the onus of proof. As Pincus JA put it in Taylor v R [2000] QCA 96 at [8], the danger is that a jury might consider that unless there was shown to be a reason why the complainant should lie about the matter, her story should be accepted. Palmer involved the cross-examination of an accused person. This case is

(Page 12)

different in that the issue was raised during closing addresses rather than in the course of the evidence by way of cross-examination. In our view, there is no warrant to restrict the Palmer principle to issues of cross-examination. If it is not appropriate for the Crown to raise it as an evidentiary matter, then it is equally inappropriate for it to be raised in closing remarks. This seems to have been the view taken in Latham v R [2000] WASCA 57 at [17].

30 It must not be thought that the Crown can never enter the arena, so to speak, on the issue of motive. In Taylor, Pincus JA referred to Topalidis v R [1999] QCA 376, in which Thomas JA expressed the view that "the question of motive for a false complaint should not be regarded as territory which a Crown Prosecutor may not enter". Thomas JA pointed out that "it is almost inevitable that counsel and for that matter the jury will seriously consider whether any motive exists for bringing a false complaint". His Honour added:

"What the Crown must not do, and what the Court must ensure does not happen, is to permit the impression to be gained that the defence has any onus of showing that there was a particular reason for the complainant not telling the truth; or that at the end of the day the absence of any perceived reason for a false complaint strengthens the suggestion that the complainant must be telling the truth."

31 In this case, the issue arose because counsel for the appellant had cross-examined the complainant on the basis that the appellant had not threatened her and she had made the complaint because she was concerned that people would "find out [she] had entertained [the appellant] overnight". In his closing address counsel said to the jury: "Why, you might say, might a person of this age and background make a complaint that wasn't true? Well, there could be all manner of reasons, regret after the event, concern about embarrassment, matters of that sort. We did touch upon that briefly with [the complainant]". Against that background it is difficult to criticise the Crown prosecutor for alluding to it in his closing remarks. He did so in relation to two particular incidents: one was an allegation that the appellant had pulled the complainant's pubic hair and another was an act of fellatio said to have taken place while the complainant was seated on the toilet. The point the Crown prosecutor was making was that these were "bizzare" and "humiliating" incidents and that it was highly unlikely that the complainant would have made them up.
(Page 13)

32 However, once the issue had been raised it was, in our view, encumbent on the trial Judge to proceed in the manner set out in Topalidis. Accordingly, while it was legitimate to consider whether any motive existed for bringing a false complaint, the Court had to ensure the jury did not gain the impression that the defence had an onus of showing that there was a particular reason for the complainant not telling the truth.

33 There are two limbs to the comments made by the trial Judge in the summing up. First, to pose the question: "Why would this girl make it up, … there is simply no evidence of any motive". Secondly, to point to the relative complexity of the complainant's account of events and to the consistency of the versions she had given from time to time. The second limb is an entirely legitimate and unexceptional area for the Crown and the trial Judge to have canvassed. But, in regard to the first limb, the trial Judge put to the jury that there was no evidence that the complainant had a motive to lie (and we would add that the word "motive" was not used by the Crown prosecutor). Once the issue was squarely before the jury in that form, we think a rider to the effect that the defence bore no onus of establishing a motive was essential. In our opinion, the trial Judge erred in failing to make this plain.

34 In our opinion, there is a reasonable probability that the jury were influenced significantly by the lack of motive on the part of the complainant to lie. That being so, we consider that, in the absence of a direction along the lines indicated in Topalides, it is not possible to say that no substantial miscarriage of justice has occurred.

35 The principle arising from Palmer is clear and we think it requires a trial judge to exercise considerable care in all cases in which the issue of a motive to lie is raised. Each case must be judged according to its own facts. But, in our view, it would be a prudent course for a trial judge to repeat the warning that the accused does not have to prove anything, at the time when he or she is addressing the jury on the motive issue.

36 In this case the problem is compounded because the form of words used by the trial Judge did not accurately reflect what the Crown prosecutor had put in one important respect. In his closing remarks, the Crown prosecutor commented on the number of separate instances of penetration of one type or another and said:

"Is that consistent with a first sexual encounter between two consenting people? I suggest it isn't. [The appellant says] she was shy - a shy girl he penetrated that number of times on the

(Page 14)

first - I suppose you could say the first meeting, the first occasion when they had a sexual encounter."

37 There was no evidentiary base for a comment, as the trial Judge put it, that these events happened to the complainant "on her first occasion of having sex". Counsel for the respondent submitted that the jury would not have been misled by the comment. They would have understood it in the sense put forward by the Crown prosecutor, namely that this was the first sexual encounter between these two people, rather than that she had been a virgin. Counsel for the appellant submitted that the words may have been taken at face value. Both interpretations are open. But there is a real possibility that the jury might have been misled.

38 The Palmer ground has been made out.

Conclusion - the Liberato and Palmer Grounds

39 The Palmer ground goes to one of the fundamental principles that underpin the criminal justice system, namely, the onus of proof. It does so in an area that was quite central to the issues that had been joined between the prosecution and the defence. While the Liberato ground may not itself have been sufficient to justify intervention it, too, goes to the onus of proof. The questions which it raises serve to heighten an overall concern about the reasoning process on which the jury might have embarked.

40 In our view the combination of the problems in both areas means that the appellant may have lost a chance which was fairly open to him of being acquitted. There has been a miscarriage of justice in the sense explained in Mraz v R (1953) 93 CLR 493 at 514.

41 We are also of the view that there was evidence on which a jury, properly directed, could have returned verdicts of guilty on each of the counts. This is not a case where it might be said that a re-trial would allow the Crown to supplement a case which has proved to be defective. Accordingly, we think there should be a re-trial: King v R (1986) 161 CLR 423 per Dawson J at 433. This is not a decision to which we have come lightly. The thought of a young woman having to give evidence again is not palatable. But this has to be considered against the fundamental public interest that an accused person must have a fair trial and that a wrong-doer (if he or she is proved so to be after a fair trial) is brought to justice.

(Page 15)

The Section 24 Issue

42 We will deal very briefly with the complaint that the defence of honest and reasonable but mistaken belief should have been left to the jury.

43 In our view, it cannot be the case that whenever an accused person gives evidence of some fact which could form the basis of a belief on the accused's part that the complainant had consented to sexual activity, the trial Judge would be under a duty to leave the defence of honest and reasonable but mistaken belief to the jury irrespective of competing evidence. Whether the defence should be left to the jury will be a decision to be made in the circumstances of each particular case. There must not only be evidence, but it must be evidence "fit for [the jury's] consideration": Van den Holk v R (1986) 161 CLR 158 at 161.

44 In Verdon v R (1987) 30 A Crim R 388 Burt CJ said, at 391- 92:

"There could no doubt be a case in which the evidence supporting the issue of mistake is so tenuous and so lacking in cogency and in which the verdict of the jury is only to be explained upon the basis that the jury accepted all the evidence given by the complainant that the court could reasonably be of the opinion that notwithstanding the failure to give the jury the direction which I think was called for, no substantial miscarriage of justice had occurred."

45 This will always be a matter for judgment on the evidence led in a particular case and in the circumstances of the case. In this case the question whether or not to put the defence to the jury was raised before counsel embarked on closing addresses. Counsel for the appellant, a very experienced criminal trial advocate, did not press the trial Judge to do so. While this is not determinative, we think it is a strong pointer to the way that those who conducted the trial and were present throughout the process assessed the tenor of the evidence. The whole import of the Crown case was that the complainant had submitted to the appellant's sexual advances because she was intimidated by him. There was evidence that the appellant had taken up a saw and held it against the complainant's skin.

46 We are not persuaded that a serious miscarriage of justice has occurred by reason of a failure to leave the defence of honest and reasonable but mistaken belief to the jury.

(Page 16)

Appeal Against Sentence

47 Because the convictions must be quashed it is not necessary to deal with the application for leave to appeal against sentence.

Conclusion

48 We would allow the appeal and order a re-trial.

49 HEENAN J: Owen J has identified and described the four substantial grounds of appeal in a very helpful way.

Ground 1 - Evidence to Support Convictions

50 As his Honour has shown, there was evidence upon which the jury was entitled to find that the Crown had proven each individual sexual act in respect of which the appellant was convicted. The trial Judge took the jury through the evidence relating to each count and in doing so clearly designated the acts which the appellant admitted and those which he denied.

51 I agree that this ground has not been made out.

Ground 2 - Liberato v The Queen

52 As Owen J has observed, the central issue in the trial was whether the complainant consented to the sexual activity. Early in her summing up the trial Judge said,

"There are fundamental rules that apply in every criminal trial and they apply in this case. ... The first is probably the most fundamental and that is the onus or burden of proof. In every criminal trial the burden of proving the charges rests on the Crown from the beginning to the end. Never shifts. That means that the accused person does not have to give evidence and has no obligation to prove anything in this Court.

Under our law, an accused person is presumed to be innocent unless and until by your verdicts you were to find him guilty. If he does go into the witness box, which the accused man did do in this case, and if he does give evidence which raises a defence or puts an explanation, its not for him to prove that. The Crown must negative it.

(Page 17)

…

The result of this is simply this, ladies and gentlemen: if after considering all the evidence in the case there remains in your minds a reasonable doubt as to the guilt of the accused in relation to any count, its your duty to acquit him and to bring in a verdict of not guilty in relation to that count.

If, on the other hand, after considering all the evidence you are satisfied beyond reasonable doubt of his guilt in relation to any count on the indictment, its your duty to bring in a verdict of guilty in relation to that count." [emphasis added]

After speaking about matters of a general nature which the jury might take into account when assessing the credibility of witnesses - in particular, that of the complainant and the appellant - her Honour said,

" … I would have thought that the evidence of the complainant and the evidence of the accused don't sit well together in some areas. In some areas they are quite consistent. In other areas you couldn't believe them both at the same time, if I could put it that way. There's a conflict and that conflict you are going to have to resolve; but always remember, because this is a criminal trial, that if you are left where you are uncertain, then you are not satisfied beyond reasonable doubt." [emphasis added]

It is true that in effect the above passage expressed a need for the jury to make a choice between the evidence of the complainant and that of the appellant. However, her Honour made it clear in the same passage that, in accordance with her earlier directions, the jury had a final and overriding obligation to decide whether matters in dispute had been established beyond reasonable doubt.

53 Having referred to the evidence of witnesses on collateral matters and having explained how such evidence might be used, her Honour pointed out that there is no requirement in law that the evidence of a complainant in sexual charges be corroborated or supported by other evidence . Then her Honour went on to say,

"Depending on your view of the complainant, if you accept her evidence as truthful and cogent, as reliable, you are entitled to convict the accused man on that evidence alone, so long as you are satisfied beyond reasonable doubt of his guilt."

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Her Honour repeated that direction and went on to identify the elements of the various offences charged in the indictment, illustrating the meaning of some terms by reference to the various acts alleged. In relation to the matter of consent she explained the burden of proof in this way:

"Ladies and gentlemen, when you are considering the issue of consent bear in mind that the accused does not have to prove she consented. The Crown must prove that the penetrations took place without her consent freely and voluntarily given. The Crown can prove that she gave her consent by threat or intimidation. If they satisfy you of that, then as a matter of law it is done without consent because that’s not a consent freely and voluntarily given.

The Crown alleges the complainant was involved in the sexual acts because of threats and intimidation and it is for the Crown to satisfy you that the accused did threaten the complainant with the saw and that she was so intimidated, both because of his age and his size and the saw and the physical threats, that she went along with his sexual demands." [emphasis added]


In those passages her Honour again directed the jury correctly not only as to the application of the burden of proof generally but also as to its application in relation to the matter of consent. From those directions the members of the jury must have appreciated that, even if they did not accept the version of the appellant as to the matter of consent or as to any other defence or explanation raised by him or on his behalf, it was their duty to acquit him unless they were satisfied of his guilt beyond reasonable doubt.

54 Following a summary by her Honour of the evidence in relation to each of the counts in the indictment the following passage appears:

"In approaching this, ladies and gentlemen, I would suggest you might find it convenient to first determine - first you should determine whose evidence you accept and are willing to rely on. Then you go through the indictment. First determine whether you are satisfied on each charge that the sexual act actually took place and then if you are satisfied of that, are you satisfied that it was given without the complainant's consent freely and voluntarily given?" [emphasis added]

If the introductory statement "first you should determine whose evidence you accept and are willing to rely on" were to stand alone it would suggest

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that preference for the evidence of either the complainant or the appellant would conclude the task of deciding what facts were proven. But in the same passage her Honour went on to say that the members of the jury should go through the indictment and determine first, which sexual acts had taken place and then, whether the complainant had consented to those acts. In other words, her Honour made it clear to the jury that it was not simply a matter of preferring one version to the other.

55 The learned trial Judge then set out, as she said, to remind the jury briefly of the defence case and the Crown case, referring in particular to various aspects of the evidence which the jury might have found were significant in relation to the matter of consent. When speaking about to the case put by counsel for the appellant in his address to the jury her Honour said, "It is suggested that you can believe the accused, even though he is coarse and rough in his speech in the videotaped interview." Her Honour reminded the jury of various points made by counsel in support of that suggestion before going on to refer to aspects of the evidence upon which counsel representing the Crown relied in the course of his address. In conclusion, having told the members of the jury that they should not concern themselves with the result of their verdicts, her Honour reminded them yet again that their function was to decide whether or not they were satisfied beyond reasonable doubt of the appellant's guilt.

56 In a case such as this, having retired to consider their verdicts the members of a jury inevitably will ask themselves, "Whom do we believe, the complainant or the accused?" It is a question very similar to that which had been put by the trial judge to the jury in Liberato v The Queen (1985) 159 CLR 507 (see the observations of Brennan J at 515). However, when repeatedly directed - as they were in this case - that the accused is not obliged to prove anything and that they must be satisfied of his guilt beyond reasonable doubt, the members of the jury will not content themselves with answering that question only. If, for example, they tend to believe the complainant rather than the accused, or even if they positively disbelieve the accused, they will then go on to ask themselves whether they are satisfied as to the guilt of the latter beyond reasonable doubt. It is a logical and commonsense process which I believe a jury always will undertake, even if not directed specifically to do so.

57 The verdicts in this case show that the members of the jury did not believe the appellant. The only real issue which this ground raises is whether they might not have gone on to consider whether upon the whole of the evidence, including the testimony of the appellant, they were

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satisfied beyond reasonable doubt that the acts in question were not consensual. My reading of the transcript of the evidence and of her Honour's summing up and my consideration of the passages to which I have referred have satisfied me that the members of the jury must have understood very clearly that they were not entitled to convict the appellant on any count unless they were so satisfied.

58 It would have been helpful - and it would have made the task of this Court easier - if towards the end of her summing up, after dealing with the conflict between the prosecution case and that of the defence, her Honour had given a direction along the lines of that formulated by Brennan J in Liberato's case and referred to by Owen J in the course of his reasons. However, after considering the summing up as a whole, I have concluded that the concerns raised on behalf of the appellant were covered satisfactorily.

59 In my opinion, this ground has not been made out.

Ground 3 - Palmer v The Queen

60 Owen J has quoted the two critical passages from the summing up which are relevant to this ground of appeal and, again, has helpfully identified and described the two limbs of the comments made by her Honour - the first limb relating to the absence of evidence as to motive and the second limb relating to the length and complexity of the complaint and the consistency of the versions given by the complainant in her evidence-in-chief and under cross-examination.

61 As to the first limb of her Honour's comments, clearly counsel for each party was entitled to suggest, as each did, that the members of the jury ask themselves why the complainant would make a complaint which was not true. Counsel for the appellant suggested that there could be "all manner of reasons, regret after the event, concern about embarrassment, matters of that sort." In turn, counsel representing the Crown suggested it was unlikely that the complainant would have made up some of the incidents which she described. In my estimation neither of those comments would have left any reasonable juror with the impression that there was an onus on the defence to show that there was a particular reason why the complainant might not be telling the truth. Nor, in my estimation, would such a juror have been left with that impression if the trial Judge had merely reminded the jury of those comments. As it happened, the comment by her Honour, "There's simply no evidence of any motive" was, in my opinion, unhelpful - mainly because neither

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counsel had used the word "motive". However, I am satisfied that the comment could not reasonably have left the jury with the impression that there was an onus on the defence to show that the complainant had a motive nor to show that there was any other reason why she might not be telling the truth.

62 I agree with Owen J that the second limb relates to an area as to which comments by counsel and the trial Judge are entirely legitimate and unexceptional. The only difficulty in relation to this limb is the comment by her Honour that the events in question happened to the complainant on "her first occasion of having sex". The comment must be considered in the light of what the jury had already heard on the subject. The evidence showed, as counsel representing the Crown had reminded the jury, that it was the first sexual encounter by the complainant with the appellant. The question as to whether or not the complainant was a virgin had not been raised. In the light of her evidence, her manner of expressing herself and perhaps her demeanour, the members of the jury might have wondered about that, but in any event they knew that there was no evidence on the subject. In performing their duty to make findings based upon the evidence alone, I think we must assume that they took her Honour's comments as referring to the first occasion of the complainant's having sex with the appellant.

63 In my opinion, the Palmer ground has not been made out.

Ground 4 - The Section 24 Issue

64 The case for the defence was that the complainant consented to whatever sexual conduct took place between her and the appellant. According to him, her consent was not of a hesitant, grudging or tearful nature. He testified that she initiated the sexual conduct and participated enthusiastically in the various intimate acts which were performed. By contrast the version of the complainant was that her participation was reluctant and induced by fear because the appellant had threatened her with the saw and had intimidated her in other ways.

65 Thus, the jury was left with a clear conflict between the appellant and the complainant as to whether or not she consented. There was no room for mistake on the part of the appellant as to that matter. His counsel did not suggest, either in the course of his cross-examination of the complainant or in his address to the jury, that there was such a mistake. As Owen J has observed, counsel did not press the trial Judge to direct the jury as to honest and reasonable but mistaken belief. I agree

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with his Honour that in the circumstances of this case such a direction was not required.

66 Having concluded that all of the grounds of the appeal against conviction must fail, I turn now to the matter of sentence.

Application for leave to appeal against sentence

67 On 10 December 1998 her Honour sentenced the appellant to an effective total of 12 years imprisonment with eligibility for parole, the sentence being taken to have begun on 21 March 1998, the day on which he was taken into custody. The sentence was structured in this way. For each of two particularly distressing penile penetrations her Honour imposed a term of 7 years imprisonment. For each of three other penile penetrations the term was 6 years. For each of three offences involving cunnilingus and two involving fellatio the term was 5 years. For a particularly degrading offence involving fellatio the term was 6 years. For one count of attempted sodomy the term was 5 years. For one vaginal penetration with a finger the term was 4 years. Finally, for each of three counts of unlawful and indecent assault the term was 2 years. Her Honour directed that fifteen of the terms take effect concurrently with each other but cumulatively upon the remaining term of 5 years imposed for an offence involving fellatio. Each term was well within the appropriate range for the various offences.

68 In arriving at the sentence her Honour took into account the respective ages of the appellant (32 years) and the respondent (17 years) at the time of the offences. She described the events as terrifying, humiliating and degrading for the complainant, a very small, slight girl who was violated by a tall and powerful man. The appellant, an Aborigine, is a member of a large family. He has four children. Over the years he has been a good worker. He first appeared before the courts at the age of 11 years and since then he has accumulated a large number of convictions for breaking and entering offences (for which he has been imprisoned on two occasions) and drug offences. He has been convicted of assault on four previous occasions, one of them involving a woman. Her Honour described his criminal record as substantial but not serious compared with the offences the subject of these proceedings.

69 In arguing that the sentence imposed was manifestly excessive counsel for the appellant said:

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"The submission here is simple, in that her Honour made a finding that this offence was at the top end of offending, one of the top offences of this type. In my submission, that's the error. I accept that you can always find worse cases of offending, and I don't propose to go into the detail of what would be worse cases, but when one looks at the particular circumstances of this case and, say, in a general comparison with girls under 16 where there have be aggravated sexual offences, the period is around this period, of 9 - 11 years or more, but the figure ultimately her Honour ended up, of 12 years, if one applied the totality principle correctly, is too high for the objective circumstances of the commission of this offence, which wasn't a series over a period of time, plus there was no violence, although there were threats of it …"

In my opinion, this was one of the worst series of sexual offences of its kind. Bearing in mind the number and nature of the offences, the effect which they must have had on the complainant, the prior record of the appellant and the absence of remorse on his part, it is impossible to say that the sentence imposed was excessive. Indeed, in my opinion, it was entirely appropriate.

Conclusion

70 For the above reasons I would dismiss both the appeal against the convictions and the application for leave to appeal against sentence.