Sparkes, Colin John v The Queen
[1998] TASSC 18
•5 March 1998
18/1998
PARTIES: SPARKES, Colin John
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 120/1996
DELIVERED: 5 March 1998
HEARING DATE/S: 12, 13 November 1997
JUDGMENT OF: Cox CJ, Wright and Crawford JJ
CATCHWORDS:
Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Evidence unfair to admit or improperly obtained - Generally - Reliability of the complainant's evidence at trial after previously giving hypnotically induced testimony - Exercise of discretion not to exclude was correct.
Roughley v R (1995) 5 Tas R 8, considered and affirmed.
Aust Dig Criminal Law [423]
Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Evidence unfair to admit or improperly obtained - Generally - Photofit evidence - Reliability of photofit evidence. Uncertainty as to whether complainant in hypnotic state during compilation.
Aust Dig Criminal Law [423]
Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Evidence unfair to admit or improperly obtained - Generally - Photographs - Breach of statute - Failure to dispose of photographs under Criminal Process (Identification and Search Procedures) Act 1976 - Exercise of discretion.
Criminal Process (Identification and Search Procedures) Act 1976 (Tas), s3(4).
R v Ireland (1971 - 1972) 126 CLR 321, distinguished.
Bunning v Cross (1978 - 1979) 141 CLR 54, Cleland v R (1982 - 1983) 151 CLR 1, considered.
Aust Dig Criminal Law [423]
Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Evidence unfair to admit or improperly obtained - Generally - Photographs - Photographs of accused - Exercise of discretion.
Aust Dig Criminal Law [423]
Criminal Law - Verdict of jury - Whether unsafe or unsatisfactory - Discrepancies between witnesses as to police interview - Admissions made by accused.
Aust Dig Criminal Law [970]
REPRESENTATION:
Counsel:
Appellant: W T McMillan, S Gourlay
Respondent: D G Coates, C J Geason
Solicitors:
Appellant: Clarke & Gee
Respondent: Director of Public Prosecutions
Judgment category classification:
Court Computer Code:
Judgment ID Number: 18/1998
Number of pages: 15
Serial No 18/1998
File No CCA 120/1996
COLIN JOHN SPARKES v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
WRIGHT J
CRAWFORD J
5 March 1998
Order of the Court:
Appeal dismissed.
Serial No 18/1998
File No CCA 120/1996
COLIN JOHN SPARKES v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
5 March 1998
For the reasons given by my brother Wright which I have had the opportunity to see in draft, I agree that this appeal should be dismissed. There is nothing I can usefully add.
WRIGHT J
5 March 1998
On 8 October 1996, after a lengthy trial in Hobart, the appellant was convicted of five counts of rape, one count of attempted rape, one count of aggravated assault, seven counts of indecent assault and one count of assault. These offences were alleged to have been committed in the grounds of the Launceston Matriculation College in the early hours of the morning of 2 October 1983 upon a 17 year old female who had been walking in the vicinity at that time.
Evidence was given at the trial that, on the evening of Saturday 1 October 1983, the complainant and her boyfriend went to a discotheque in Kingsway at Launceston. They left together between 2 and 2.30 o'clock the following morning. The complainant had consumed no intoxicating liquor. There was an argument between the complainant and her boyfriend and, as a consequence, she went off to see if she could hail a taxi to take her home whilst her boyfriend walked off in the opposite direction. The complainant went to the corner of York and Charles Streets, but there were no taxis to be seen. She then crossed to the eastern side of Charles Street and walked towards the Mall. There were still no taxis about so, when she reached a shop now occupied by Yeltuor, she crossed back over Charles Street and walked down Brisbane Street in a westerly direction. She was very angry with her boyfriend as a result of the argument which they had had. She was crying and generally upset. She turned into a laneway beside the Billabong Hotel. The laneway led into Paterson Street. She then walked towards the intersection of Paterson and Wellington Streets. Her boyfriend lived in one of the flats in a building on the corner of that intersection but, after some indecision on her part, she decided not to stop there. She continued walking on down Paterson Street in a westerly direction. At one stage she heard footsteps behind her but, believing it was her boyfriend following, she did not turn around. A taxi driver gave evidence of seeing a girl matching the complainant's description walking by herself along Paterson Street in the direction described. He said that at this time it was approximately 2.45am. The taxi driver said that as he passed the girl, she was between the overpass and the Matriculation College. As the taxi driver turned south into Wellington Street, he saw a man walking along Paterson Street in the same direction as the complainant.
The complainant said that she went past the Matriculation College and crossed over Margaret Street. As she did so, the occupants of a white Cortina car passed close by her and there was an irritable exchange of words between herself and one of the occupants. A passenger from that car gave evidence corroborating the complainant's account of this minor confrontation. The complainant said that she reached the Penny Royal Water Mill and then decided that she had gone far enough. She turned around and walked back along Paterson Street. As she approached the entrance of the Matriculation College, she heard footsteps close behind her and was grabbed from behind by a man. He dragged her into the grounds of the Matriculation College and threw her down on the lawn inside the gate. He applied a blindfold and ripped off all her clothes. This person performed a brutal and prolonged sexual attack of the utmost depravity upon her. Eventually her attacker left, leaving her naked, gagged, and bound hand and foot. She partially reclothed herself and ran to her boyfriend's flat where she was seen by a patrolling policeman beating on the front door in an hysterical condition. Soon after, she was taken to the Launceston Police Station. The following narrative of subsequent events is taken from the reasons for judgment published by the learned trial judge, Underwood J, on 1 October 1996 at the conclusion of a voir dire hearing in which challenges to certain evidentiary matters were considered (R v Sparkes (1996) 6 Tas R 178 at 183 - 189):
"By about 4.30am, which I find was no more than about two hours after the attack, the complainant was interviewed by a female police officer. I find that the police officer first asked the complainant to recount in general terms what had happened to her and then asked her to recount matters again in some detail. The interviewing officer asked questions to elicit detail or keep chronological order. What the complainant said was recorded in narrative form by the police officer (VD 9). This statement was later typed. It is a very detailed account. The typed version comprises four foolscap pages of single spaced typing. I find that the account set forth in VD 9 is entirely the product of the complainant's memory, unaided by suggestions made by the interviewing officer. It contains this description of the complainant's attacker:
'The person who raped and assaulted me would be approx, 180cm height medium build, with neat shoulder length blondish hair. He was clean shaven although he might have had a moustache. He was carrying a small bag like a disco bag. He was wearing denim jeans and leather jacket (black in colour). This jacket was like a motor bike jacket in good condition. He was also wearing leather boots. He had a full head of hair, not balding or receding, that I could see. I don't think he had freckles or sideburns.
His voice was an average male sounding voice, no accents. He used a lot of abusive language - although he spoke quite well - (not street talk). I would recognise him if I saw him again.'
After the statement had been made, the complainant was taken to the hospital and there examined by a specialist medical practitioner, Mr Grove.
Later that morning, Sergeant Ottley suggested to the complainant that she might benefit from hypnosis. I find that he told the complainant that it might help her to cope with the trauma to which she had been subjected. He did not suggest to her that there were particular matters that she might recall if she was hypnotised. The complainant was sceptical about her achieving any benefit from hypnosis, but agreed to it.
The next morning, 3 October 1993, [sic] (this should be 1983) Mr Dale, now a sergeant of police, travelled from Hobart to Launceston with his photofit kit. He saw the complainant in the presence of her mother and Sergeant Ottley. He explained to the complainant how the kit worked and under his guidance, the complainant compiled a photofit of her attacker. The result of her work was photographed. I find that when completed, the complainant expressed some dissatisfaction with her selected depiction of the attacker's hair. The photograph of this photofit was not tendered in evidence because it has been lost or inadvertently destroyed.
About 2pm on the same day as the complainant made the photofit, she was taken to the Lindsay Miller Clinic in Launceston where she saw Mr Henty, a psychologist. Sergeant Ottley remained in the room while the hypnosis session was conducted. I find that he said and did nothing throughout the hypnosis session. I find that there is no reason to suppose that the complainant's answers were prompted or influenced by a desire to assist the police to obtain information. The whole proceedings were recorded by audio tapes. These tapes were later transcribed by the senior typist at the Launceston Police Station. The accuracy of the transcript was checked by Sergeant Ottley.
There is a difference between the evidence of Sergeant Dale and the evidence of Sergeant Ottley as to whether the former was in the room with the latter during the whole of the hypnosis session. I am unable to resolve this difference for there is no reason to prefer one witness over the other in this respect. However, assuming that Sergeant Dale was in the room throughout the hypnosis session I am satisfied that he took no part at all in the proceedings until after the session concluded and he commenced to assist the complainant make the photofit. I find that Mr Henty took no part in the compilation process although he was present. This photofit was photographed and tendered in evidence (VD 12). I find that during the process of assembling the photofit the complainant was not under hypnosis although she may have been put under hypnosis after its completion to see if the result accorded with her relaxed memory. As all these events occurred more than thirteen years ago, witnesses' recollections have faded. With respect to the differences between the first and second photofits, I am unable to make any finding other than there were some relatively minor differences between the two and that one of those differences concerned the attacker's hair.
The police borrowed approximately twelve black leather jackets, half a dozen pairs of blue jeans and several pairs of brown 'cowboy' boots from shops in Launceston. This clothing was displayed at the police station for the complainant's inspection. She chose a jacket, a pair of jeans and a pair of boots that she considered resembled the clothes worn by her attacker. A police officer whose build roughly resembled the description the complainant had given of her attacker's build, put on these clothes and was photographed. The police then superimposed the photofit photograph on the body of the police officer and the result was published on the front page of the Examiner newspaper for 4 October 1983. The heading over the photograph was 'Have you seen this man?' Alongside the photograph was a story of the relevant events. Obviously, the story in the newspaper is inadmissible and senior counsel for the Crown did not contend otherwise.
... Mrs Moody (the appellant's then defacto wife) was in Queensland at the time the crimes were committed but returned shortly after the publication of the picture in the newspaper. She too gave evidence that it looked like the accused. She said that she tackled him about it. She said that the accused told her that it was not him, that he would not be involved in anything like that and that he was home on the night in question. About a month or so later, the accused and Mrs Moody left the State to live in Queensland.
It may be interpolated at this stage that on two separate occasions very shortly after the attack, the complainant was shown books of photographs kept by the police, commonly known as 'mug shots'. It is highly probable that one of those books contained a photograph of the accused for, as will be seen later in these reasons for judgment, he then had a record of previous convictions and in 1980 had been tried, but acquitted, on several charges of rape. However, the complainant was unable to identify the accused from any of the photographs that she was shown. None of the police witnesses who gave evidence on the voir dire and who knew the accused well said that the photofit resembled the accused.
Sergeant Ottley thought that the complainant might benefit from a further session of hypnosis. He said that investigating police thought it probable that her attacker had followed the complainant from somewhere in the city area to the Matriculation College and thus the exact route she had taken after leaving the disco was important. He said that in his experience the memory of victims of criminal trauma improved after a day or so. He thought that this might happen to the complainant and that the process might be assisted if she were relaxed under hypnosis. I find that Sergeant Ottley said and did nothing to suggest to the complainant that she ought to be able to recall more than she already had recalled. A second session of hypnosis took place at the Lindsay Miller Clinic on 5 October 1983. The only persons present during this hypnosis session were the psychologist, Mr Henty, Sergeant Ottley and the complainant. I find, as was the case during the first hypnosis session, that Sergeant Ottley said and did nothing and there is no reason to suppose that the complainant's answers were prompted or influenced by a desire to assist the police gain information.
As before, the hypnosis session was recorded by audio tape and the head typist at the Launceston Police Station made a transcript. The transcript was checked for accuracy by Sergeant Ottley and one or two corrections were noted in his hand on the transcript. I find that the audio tapes of both hypnosis sessions have been lost. The transcripts of the first and second hypnosis sessions were tendered in evidence (VD 17 and 18 respectively), complete except for the first page of the first transcript.
Mr Henty made no notes of his attendances on the complainant. Apart from the transcript of the hypnosis session he was dependent on his memory. The majority of the answers he gave to questions concerning what happened were expressed in terms of what would have happened. The basis for most of Mr Henty's purported recall of events was the practice he adopted for forensic hypnosis sessions. Mr Henty said that there were three separate sessions of hypnosis. He said that one of them related to the assembly of the photofit. He said that this session was not recorded at all. I find that Mr Henty is mistaken in his evidence that the photofit assembly took place on an occasion separate from the other two hypnosis sessions. In this respect, I prefer the evidence of the complainant, Sergeant Dale and Sergeant Ottley that the photofit was assembled by the complainant at the conclusion of the hypnosis session on 3 October 1983. Their evidence in this respect is supported by the publication of the photofit in the Examiner newspaper the next day, 4 October 1983, (VD 13).
On 7 October 1983, two days after the second hypnosis session, Sergeant Ottley interviewed the complainant. She said that there were some further details that she had remembered. Sergeant Ottley went through the statement made by the complainant immediately after the attack and drew up a supplementary statement from the complainant (VD 10). I am satisfied that the second statement is the product of the complainant's memory (whether enhanced by hypnosis or not) and not the product of suggestion made by Sergeant Ottley. The typed version of the second statement runs to three and a half single spaced foolscap pages.
I find that Mr Henty was a person well qualified in 1983 to conduct the hypnosis sessions with the complainant. I find that both sessions were conducted with the informed consent of the complainant. I find that she was somewhat sceptical about the assistance hypnosis would give her. I accept the opinions expressed by Mr Henty and Dr Stanton that the following may affect the evidence given by persons who have been subjected to post traumatic hypnosis:
_ The potential witness is susceptible to suggestions made to him or her while under hypnosis. There is a risk that the potential witness will readily accept a suggestion made to her or him under hypnosis and later believe the suggestion to be a fact. To avoid this the hypnotist must not ask leading questions.
_ An uncertain belief about matters may unconsciously become more certain as a result of hypnosis. A detailed record of the witnesses' pre-hypnosis recollection should be compiled to assist detect whether this has occurred
_ There is a risk of confabulation under hypnosis. The risk can be reduced if the witness is not allowed to wander off into fantasy while under hypnosis and by avoiding situations in which the witness might feel obligated to give answers or supply information. Comparison between the pre-hypnosis recollection and the answers given during hypnosis often discloses whether confabulation has occurred.
Dr Varghese, a psychiatrist called on behalf of the accused on the voir dire, in substance agreed with Dr Stanton and Mr Henty that the foregoing sets out the potential effects of hypnosis on the memory.
I agree with the opinion expressed by Dr Stanton that apart from occasional minor isolated occasions, Mr Henty avoided leading questions during both hypnosis sessions. Examination of the transcript reveals that on most of those occasions, the complainant was not suggestible for she rejected the answers impliedly suggested in the questions. I also agree with Dr Stanton that examination of the transcripts show that the complainant's critical faculties were functioning during the hypnosis sessions. The complainant provided some more detail while under hypnosis, but as Dr Stanton said, such detail is to be expected after a short lapse of time in any event.
Most of Dr Varghese's evidence-in-chief dealt with the dangers associated with post hypnotic memory generally. With respect to the complainant's post hypnotic memory, Dr Varghese agreed that if there was independent corroboration of events recalled for the first time during or after hypnosis it would indicate that the recall of those events was valid and not contaminated by hypnosis. With respect to the two sessions of hypnosis, Dr Varghese agreed with the substance of the evidence given by Mr Henty and Dr Stanton. He accepted that an examination of the transcript revealed that the occasional leading questions referred only to insignificant matters and there was no evidence that the complainant had been suggestible under hypnosis. He was unable to point to any evidence of confabulation and agreed with Dr Stanton that the extra detail provided under and after hypnosis was the kind of detail one would expect a person in the position of the complainant to recall a day or so after the trauma without the intervention of hypnosis. I find no evidence of confabulation.
Apart from providing more detail, the complainant's account while under hypnosis was in substantial accord with her pre-hypnotic account except for a change in the order of some of the assaults on her. She did not tell the interviewing police officer of the attacker defecating and urinating on her, but explained in evidence that she deliberately withheld that information because it was too unpleasant to reveal. More importantly for present purposes, that those events did occur is corroborated by the witnesses who described her state immediately after the attack, and by her utterance to her boyfriend when she first went into his flat. Similarly, some of the details of her walk from the disco that she provided during and after hypnosis, are corroborated by independent witnesses. Dr Varghese noted that the complainant's first statement was very detailed — such that he wondered why hypnosis had been suggested — and agreed with senior Crown counsel that in this case, whether an uncertain memory of events had become more certain by reason of hypnosis could best be detected from the cross-examination of the complainant. No post hypnotic confirmation of uncertain memory appeared from the cross-examination of the complainant on the voir dire.
In his closing submissions on the voir dire, senior counsel for the accused handed up a list of matters about which the complainant had given evidence but which were not referred to in the complainant's original statement to the police. I find that they are either matters of small detail that might be expected to be recalled an interval of time after the infliction of trauma, or matters that are corroborated by evidence independent of the complainant. Importantly, none of them were the subject of leading questions under hypnosis nor the subject of suggestion by others prior to hypnosis."
At the trial of the appellant it was submitted to the learned trial judge that he should not permit the complainant to give any evidence whatsoever. The submission was that her evidence was inadmissible because there was a risk that her recollection of relevant events had been contaminated and had become unreliable as a consequence of the hypnosis sessions in which she had participated. Applying the decision of the Court of Criminal Appeal in Roughley v R (1995) 5 Tas R 8, the learned trial judge ruled that the evidence was not inadmissible as a matter of law. He then considered the appellant's alternative submission that the complainant's evidence should be excluded in the exercise of his discretion. In Roughley v R (supra) at 25, Zeeman J discussed the decision of the New Zealand Court of Appeal in McFelin [1985] 2 NZLR 750. In doing so, he made the following significant observations concerning McFelin which are no less applicable to the case before this Court at the present time:
"The court (at 751) commenced its consideration of the question of the admissibility of post hypnotic evidence with the proposition that where a Crown witness has undergone hypnosis that fact must be disclosed to the defence and that, if so required by the defence, all material relevant to the hypnosis must be supplied to it. It may readily be accepted that such duties are but incidents of the general duty of the Crown to avoid unfairness in its conduct of a prosecution. The fact that a witness has undergone hypnosis with a view to enhancing his or her memory at the very least is relevant to weight and may require the exclusion of evidence from that witness as a matter of discretion. Disclosure to the defence is necessary so as to avoid the possibility of a miscarriage of justice. At least in part the rationale for requiring disclosure is akin to the rationale for requiring that the Crown disclose to the defence known convictions of witnesses called by it, at least where the credit of such a witness might reasonably be expected to be a live issue (see R v Collister and Warhurst (1955) 39 Cr App R 100; R v Thompson [1971] 2 NSWLR 213).
The court (at 752) then gave consideration to the evidence before it as to the possible effect of hypnosis, which was in the form of affidavits and scientific writings. The submissions made by the appellants in the present case appear to have treated the court's conclusions on matters of fact as somehow being available to this Court as facts by which its decision may be informed. It would be quite inappropriate to proceed on such a basis, as I pointed out in different circumstances in Attorney-General v Smith Serial No A87/1994 at 5. I agree with the tentative view expressed by von Doussa J in Cheney v The Queen (1991) 28 FCR 103 at 110 (a case in which the Full Court of the Federal Court of Australia declined to lay down general principles as to the admissibility of post hypnotic evidence) that "each case must be considered according to the circumstances and the expert evidence, if any, led at the trial". The present appeal is to be determined upon the basis of the unchallenged findings of primary fact made by the learned trial judge on the voir dire hearing, unchallenged evidence before his Honour which was not the subject of any specific findings and any matter of which the Court may take judicial notice."
I respectfully endorse these views. It is of the utmost importance to bear in mind that when post-hypnotic testimony is challenged on a voir dire, the trial judge required to rule upon the same must do so on the basis of the evidence adduced before him and not on the basis of findings which have been made in other cases on other occasions in different circumstances in which different expert witnesses have been called to give evidence. The expert evidence given on the voir dire on the trial of the appellant differed in some respects from that which had been given in the trial of Roughley. It may well be that the so called McFelin guidelines will need to be tightened or relaxed as further research and empirical experience illuminates this sphere of expert knowledge. The learned trial judge summarised his appraisal of the evidence given on the voir dire and his reasons for rejecting the appellant's application to reject the complainant's evidence on discretionary grounds in the following passage from his judgment:
"In this case, as in Roughley v The Queen (1995) 5 Tas R 8, the expert opinion evidence did not suggest that there should have been in place any controls more stringent than those set out in R v McFelin [1985] 2 NZLR 750. With respect to those guide-lines I find that there has been substantial compliance. No written record of what Mr Henty said to the complainant prior to hypnosis, and indeed, no memory of what he said to her is available. Further, the hypnosis was recorded by audio tape and not video tape but those 'breaches' of the 'McFelin' guide-lines are not sufficient reason for excluding the complainant's evidence in the circumstances of this case. Comparison between the transcript of the hypnosis sessions, the pre-hypnosis statement, the post-hypnosis statement and the complainant's evidence on the voir dire, shows that no new matters of substance emerged from the complainant's memory after hypnosis that are not corroborated by independent evidence. Absence of a video record of the hypnosis and absence of notes by Mr Henty will not inhibit defence challenge to the validity of the complainant's evidence. Unlike R v Tillott & Ors (1995 - 1996) 38 NSWLR 1, this is not a case where the witness is able to recall a huge volume of material after hypnosis that he or she was unable to recall before hypnosis. Study of the transcripts shows that suggestions were not made to the complainant (except in relation to occasional insignificant matters), and that the complainant was not suggestible under hypnosis. Her refusals on occasions to agree with Mr Henty demonstrated, in the opinion of all the expert witnesses, that her critical faculties were functioning well. Similarly, with respect to the compilation of the photofit, I am satisfied that no hypnotic suggestions were made to the complainant prior to its compilation and that the compilation itself was not done whilst the complainant was under hypnosis. In this respect I prefer the evidence of Messrs Ottley and Dale and the complainant to that of Mr Henty. No submission was made showing how the failure to make notes of what the hypnotist said to the patient or how the failure to record the proceedings by video tape made it difficult for the defence to challenge the validity of the complainant's present memory. Nothing was put to show how the relatively minor failures to comply with the R v McFelin [1985] 2 NZLR 750 guide-lines might inhibit the defence in showing the possibility of contamination by hypnosis and that therefore, that it would be unfair to admit the complainant's evidence.
No basis has been made out for the discretionary exclusion of the evidence of the complainant."
It may be observed that the prospect of unreliable evidence being given by a witness is not the touchstone for its exclusion in the exercise of discretion, but rather the potential difficulty which may exists in exposing such unreliability by cross-examination or otherwise, thus rendering the trial unfair (see Rogers v Beljajev [1995] 1 VR 489).
His Honour also ruled that the photofit picture compiled by the complainant on 3 October 1983 was admissible and that photographs of the appellant taken on 17 July 1980 and on 5 February 1985, were admissible and should not be excluded in the exercise of his discretion. The appellant's notice of appeal challenges all of these rulings by the learned trial judge. It is also contended that the appellant's conviction was unsafe and unsatisfactory in all the circumstances.
Grounds 1 and 2
In August 1997, the appellant, in accordance with the practice which has been observed by this Court since Gardenal-Williams v R [1989] Tas R 62 applied for leave to reargue the questions of law which were determined in Roughley v R (supra). Leave was refused on the grounds (inter alia) that the New South Wales decision of R v Tillott (1995 - 1996) 38 NSWLR 1, which was relied on by counsel for the appellant as justifying a re-examination of the Roughley decision, was dealt with by the New South Wales Court of Appeal from the standpoint that the Crown had conceded that the law as to the admissibility of post-hypnotic evidence had been correctly expounded in the New Zealand case of R v McFelin (supra). In a very detailed and closely reasoned judgment in Roughley v R (supra), Zeeman J convincingly demonstrated that the McFelin approach was erroneous. I was the trial judge in Roughley's case and I took the view that I should follow the preponderance of then existing authority. As a consequence, I ruled the challenged evidence inadmissible but, having now had the opportunity to consider the reasons of Zeeman J which received the unanimous support of the other members of the Court of Criminal Appeal, I now respectfully record that I am completely satisfied that Zeeman J's decision in Roughley was correct.
As a result of the Court's refusal to grant leave in August, counsel for the appellant limited his submissions in relation to the first ground of appeal to the contention that the learned trial judge's discretion had miscarried in allowing the complainant to give evidence at the trial. By way of preliminary comment, it should be noted that after his Honour had ruled in favour of the admissibility of that evidence at the trial, there were discussions between counsel and his Honour concerning the extent to which evidence should be given before the jury that the complainant had undergone hypnosis soon after the alleged attack. Mr Coates, senior counsel for the Crown, said that he did not intend, unless directed to the contrary by his Honour, to lead evidence from the complainant that she had been hypnotised. However, Mr McMillan, counsel for the appellant, indicated that he intended to make an issue of the complainant's hypnosis before the jury and therefore invited the Crown to lead that evidence. I should record that I consider Mr Coates' initial reluctance to lead the evidence of hypnosis to be entirely proper. Unless and until hypnosis was used by the defence as a possible basis for undermining the reliability of the complainant, the unexplained narrative by the complainant that she had undergone hypnosis could have been seen by the jury as a mechanism which had been employed as a means of enhancing her memory. In other words, until the potential pitfalls into which hypnosis could lead a witness had been explored by expert evidence, the lay person may well have regarded hypnosis as a reliable tool for memory enhancement. As the expert evidence on the voir dire indicated, although hypnosis can have this effect, it is not necessarily the only effect which it can produce.
Following the discussion which I have mentioned, Mr Coates led from the complainant at the trial the fact that she had produced the photofit picture of the appellant which was given in evidence, following her hypnosis. The effect of the hypnosis was not explored and the reference to it was very short indeed in her evidence-in-chief. Despite Mr McMillan's assertion that he intended to make an issue of hypnosis, the complainant's cross-examination as to the fact was brief, if not perfunctory. At 1232 of the transcript, the following cross-examination took place:
"You recall you talking to a Mr Henty? ... yes I do.
In that week? ... Yes.
And do you recall discussing with him a number of matters of events of that night to you? That was the subject of your conversations with Mr Henty wasn't it? ... I was put under hypnosis.
Yes? ... I'm not sure what I did or didn't say.
You're not sure of what you did or didn't say? ... Can't remember, no.
You can't recall now what you said under the - with hypnosis? ... No, I can't.
But you can recall being put under hypnosis? ... Yes.
And finishing the session, coming out of hypnosis? ... Coming out of hypnosis, yes.
So if I want to put to you something that may have been said under hypnosis you couldn't say one way or the other whether you said it? ... No, I could not."
There was no further reference to the complainant's hypnosis or the effect which it may have had upon her. No doubt surprised by the brevity of this exchange, Mr Coates sought to remind counsel for the appellant of the rule in Browne v Dunn (1894) 6 R 67 (HL) at the conclusion of the complainant's evidence, indicating to the learned trial judge that he was taking this course because, having regard to the material elicited from the complainant, he could see no basis upon which the Crown could or should call Mr Henty to give evidence of the hypnotic procedures. Obviously if the attack upon the complainant's reliability which had been foreshadowed on the voir dire hearing had been pursued during the trial before the jury, it would have been appropriate and necessary for the Crown to adduce evidence of the several statements made by the complainant to the police, both before and after the hypnosis sessions, so that the jury would have a basis for determining whether or not there was substance to the foreshadowed defence submission that her evidence had been rendered unreliable as a consequence of the hypnosis procedures. Mr McMillan assured the Court and Mr Coates that he was well aware of the rule in Browne v Dunn and, as it transpired, the question of hypnosis was not raised again during the course of the trial. The appellant neither gave nor adduced evidence.
It seems quite plain from an examination of the way in which the defence case was conducted once the learned trial judge ruled the challenged evidence admissible, that the actual reliability or unreliability of the complainant, consequent upon her hypnosis, was no longer an issue which the appellant sought to agitate before the jury. No doubt there was good reason for this decision, notwithstanding Mr McMillan's earlier indication to the contrary (see VD 1072.57). One factor which may have influenced this decision was the practical certainty that a full scale challenge would have rendered the complainant's initial statement to the police admissible for both the experts and the jury to compare what she had then said with what later emerged under hypnosis. This could have been seen by the defence as an unwise course to pursue. Nonetheless, it should be emphasised that once the voir dire ruling had been made, hypnosis virtually ceased to be a factor of any significance in the course of the trial.
It was plain from the outset that the central issue at the trial was to be the question of the identity of the complainant's assailant, but this factor cannot be viewed in isolation. If the prosecution had been unable to prove that any of the attacks upon the complainant took place, the question of identity would have become irrelevant. It is therefore appropriate that in determining whether or not the complainant's evidence should have been admitted, regard must be had to the reliability of the whole of the complainant's evidence, not just that relating to identification. Nonetheless, it is appropriate to note that at no time did the complainant purport to identify the appellant as her assailant. She described her assailant to the police and she prepared two photofit representations of his face. The second photofit representation which was admitted into evidence includes certain features which are broadly similar to those in two photographs of the appellant taken in 1980 and 1985 which were also admitted into evidence. On the other hand, there are several features of the photofit which are markedly different from either of those photographs so that it cannot be said that the photofit closely resembles the appellant as he was in 1980 or 1985. The only legitimate comment which can be made is that the photofit does not exclude the appellant. He does not look so totally unlike that representation that it could be said that the complainant's assailant must have been someone other than the appellant.
Before hypnosis, the complainant had provided police with a description of her attacker and had compiled a photofit. Unfortunately, this photofit went missing prior to the trial. The complainant did not waiver in her description of her attacker after the initial interview, except in respect of the possibility that he had a moustache. The police suggested that she may undergo hypnosis to help her cope with her traumatic experience. After hypnosis, a second photofit picture was compiled. This was available at the trial. However, those witnesses who had seen both photofits, were able to say that the second was not greatly different from the first. The complainant's alteration of the features of her assailant which were reproduced in the second photofit, were the result of her expressed dissatisfaction with the first photofit, a dissatisfaction which she had expressed and entertained at the time of the execution of the first one, rather than as a result of new memories released by hypnosis.
As I have said before, the central issue at the trial was identity, not rape. The complainant had clearly described the rape and other criminal offences in all significant details (except the fact that her assailant had urinated in her mouth, defecated upon her face and inserted a pencil in her anus, which were circumstances which she had deliberately withheld in her initial complaint to the police, finding them just too traumatic to recount at that time). Her disclosure of these features after hypnosis had nothing to do with memories which that process had released or created. Her allegations of rape were significantly corroborated by her dishevelled and beaten appearance when she was first seen by the police and her boyfriend. There had been drawings made upon her body with lipstick and eye-liner. She exhibited signs of injury around the head and face and faeces was still adhering to her face. She did not know the appellant and it is unlikely in the extreme that she saw him at the discotheque. Counsel for the appellant conceded this last mentioned fact during the hearing of the appeal. There was no identification parade. The complainant was not asked to, and did not, identify the appellant at the trial. Ground 2 of the notice of appeal claims that the learned trial judge erred in failing to exclude from evidence "a photofit of the Appellant which was prepared by the Complainant on the 3rd October 1983". It is inaccurate to call the document admitted into evidence "a photofit of the Appellant". The photofit was of the complainant's assailant. Mr McMillan did not seek to re-argue the learned trial judge's conclusion that the photofit was admissible as a matter of law. His Honour's reasons for reaching this conclusion are set forth at pages D9 and D10 of the appeal book and need not be reproduced. His Honour appears to have considered all relevant authorities on the point with the sole exception of R v Langille (1990) 59 CCC (3d) 544. In that case, the Ontario Court of Appeal decided that, insofar as a photofit picture can be said to be hearsay material, the admissibility of the document can properly be viewed as an exception to the rule against hearsay. Whether the photofit should have been regarded as admissible on this basis or upon the more orthodox approach adopted by the learned trial judge, the picture was, in my opinion, admissible. The only question upon which this Court's decision has been invoked by the appellant is whether or not the learned trial judge should have exercised his discretion to exclude the document. In my opinion, he exercised that discretion appropriately and I cannot fault his reasons for so doing. Moreover, I would observe that the appellant was not directly identified by the photofit picture. It is perhaps significant that he was interviewed by the police in 1983 following the publication of that picture, but he was not arrested at that time. The evidence which led to his apprehension and conviction may fairly be regarded as being a combination of the DNA evidence, admissions which he made to investigating Tasmanian police and a Queensland police officer, and lies which he allegedly told to his defacto wife as to his whereabouts on the night on which these crimes had been committed. Insofar as the photofit picture may be regarded as evidence tending to confirm that the complainant's attacker resembled the appellant, thus facilitating the conclusion that the appellant was in fact the rapist, no complaint was made of the learned trial judge's careful direction to the jury upon this and all other issues relating to identification. A properly instructed jury may make relevant comparisons (see Bulejcik v R (1995 - 1996) 185 CLR 375). In my opinion, the photofit picture was properly admitted into evidence. Grounds 1 and 2 of the appeal cannot be sustained.
Ground 3
Ground 3 claims that the learned trial judge erred in law or alternatively his discretion miscarried in admitting into evidence photographs of the appellant taken by an officer of the Tasmania Police on 17 July 1980. The photograph objected to had been taken of the appellant on 17 July 1980 by police who were in the course of investigating a prior allegation of rape in respect of which the appellant was subsequently acquitted. It was common ground that this photograph should have been destroyed in accordance with the Criminal Process (Identification and Search Procedures) Act 1976, s3(4). On the voir dire, the learned trial judge considered this non-compliance with the Act and was satisfied that the police had proper procedures in place to ensure that documents of this kind were destroyed following an acquittal. The trial judge was also satisfied that the photograph had been retained in police records, not as a consequence of any deliberate decision to flout the law, but as the result of an oversight only. Technically speaking, the prosecution should have taken steps to destroy the photograph once it became aware that it was in existence, but as it was the intention of the prosecutor to apply to the learned trial judge to exercise his discretion to allow the document to be tendered in evidence, it is plain that he was justified in retaining the photograph until a ruling on that application had been made. Counsel for the appellant submitted that to allow a photograph taken on a prior occasion and kept following an acquittal to be produced in court in relation to an unrelated crime, offends the doctrine established in R v Ireland (1971 - 1972) 126 CLR 321. The discretion to be exercised by the learned trial judge fell to be considered in accordance with the principles also discussed in Bunning v Cross (1978 - 1979) 141 CLR 54 and Cleland v R (1982 - 1983) 151 CLR 1. His Honour, in ruling upon this matter, said at 200:
"This is not a case where there has been a flagrant or even a deliberate failure to comply with statutory requirements. A well organised and established system was and is in place to ensure compliance with the Criminal Process (Identification and Search Procedures) Act 1976, s3(4). This particular photograph slipped out of the system due to inadvertence after notice had been given by the prosecuting authority that it was to be destroyed. In these circumstances there is no basis for an exercise of the exclusionary discretion in favour of the accused."
I can only say that I am in entire agreement with the learned trial judge. Although in one part of his ruling he described the photograph as a "typical mug shot", it should be recorded that the photograph did not go to the jury in this form. The name plate and identification details commonly seen in such photographs had been excluded and what was presented to the jury was simply a head and shoulders portrait of the accused. Furthermore, it was presented in evidence through the medium of a retired police officer who described himself as a motel proprietor. Although that police officer may have been known in Launceston prior to his retirement, there is no reason to think that his name or appearance would have struck a cord of recognition with any juror empanelled in Hobart. In my opinion, there was absolutely no unfairness in that photograph being used in the way that it was during the course of this trial. In my opinion, ground 3 fails.
Ground 4
Ground 4 of the appeal alleges that the learned trial judge erred in law or alternatively in the exercise of his discretion in admitting into evidence a photograph of the appellant taken by an officer of the Queensland Police on 5 February 1985. This photograph was taken in relation to a police investigation carried out in respect of the appellant in 1985 in Queensland. It was submitted by counsel for the appellant that it was a typical "mug shot" and as produced to the jury it still had those qualities. I entirely disagree. As with the other photograph, it was presented simply as a head and shoulders portrait of the accused at the time. It was not identified as a police photograph. It is plain that the accused's appearance has changed quite significantly since 1980. There was a considerable change in his appearance between 1980 and 1985 in particular. It was important that the jury should know whether the complainant's description of her assailant could have applied to the appellant in 1983. The existence of these photographs would obviously have assisted the jury in this task. In my opinion, the learned trial judge correctly ruled that the photograph in question was admissible as a matter of law and that no sound reason existed for excluding the same in the exercise of his discretion. In my opinion, ground 4 fails.
Grounds 5, 6 and 7
Grounds 5, 6 and 7 were abandoned.
Ground 8
Ground 8 alleges that the verdicts of the jury were unsafe and unsatisfactory.
A ground of appeal in similar terms seems to be invoked in the majority of appeals against conviction since the decision of the High Court in Morris v R (1987) 163 CLR 454. It is certainly seen by some counsel as an omnibus claim which may succeed if more specific grounds of appeal are unsuccessful, but in the present case, only two discrete arguments were advanced in support of the ground. In the first place, it was submitted that it was extremely unlikely that the appellant could have followed the complainant from the discotheque into Paterson Street without being observed by witnesses who gave evidence on behalf of the Crown, namely the occupants of the Cortina and the taxi driver. It was further submitted that it was extremely unlikely that the appellant would have waited for the complainant in the grounds of the school when she was travelling ahead of him towards Trevallyn, having given no indication of returning along the same route which she had just traversed. The question was posed, how could he know that she would turn around at the Penny Royal and return to the city? In my opinion, there is no substance in either of these submissions. The taxi driver did notice a man wearing a jacket in the street as he turned right into Wellington Street. It was insufficient for the purpose of making an identification but it may have been the appellant. The occupants of the Cortina may have missed seeing him because he had already secreted himself in the school grounds. He may have been taking care that he was not seen by casual observers. He may have been hiding in appropriate places or ducking out of sight as motorists approached. He may have been stalking the complainant in this way before she turned and went back down Paterson Street. I see nothing at all incongruous in the fact that he was waiting for her in the school grounds. He may have decided to break off his pursuit when he reached the school grounds and simply attacked the complainant opportunistically when he saw her returning along Paterson Street. There are many possible explanations for the conduct of the complainant's assailant. There is simply no substance in this submission.
Counsel for the appellant also relied upon the claimed improbability of the appellant making admissions to three police officers in the Launceston prison. He pointed out to a minor discrepancy between those officers and a warder, Mr Yapp, who watched the interview through a one-way mirror. It was suggested that if the interview had taken place in the cubicle nominated by the police, the warder would have been unable to see those things happening which he described. A plan of the cells and the Launceston Police Station and photographs showing the interview area were produced to the Court by counsel for the appellant. The evidence to which our attention was directed, to my mind, confirms the fact that the appellant did hold discussions with the police and that the police recorded what was happening at the time. There is nothing in the material presented which would cause me to suspect that the police evidence in this respect was unreliable. The learned trial judge gave a detailed McKinney direction to the jury. It was not disputed that the appellant had been cautioned before the interview commenced, nor was it suggested that the notes taken at the time of the interview were not the notes recorded by the interviewing officer at the time.
The appellant's written submissions also suggested that the evidence of Mr Charles Grimple should be regarded with suspicion. Mr Grimple gave evidence that, in February 1985 in Queensland, the appellant said that he had committed a rape in Tasmania and he was wanted in this State for that offence. As previously mentioned, the appellant had not been charged with the present offence in 1985. This was plainly relevant evidence from which the jury could infer that the appellant had a guilty conscience about an offence which he had in fact committed in Tasmania. The learned trial judge warned the jury to scrutinise this evidence with care. When Mr Grimple was in the witness box it was not suggested to him that he had a motive to lie, nor indeed was he cross-examined as to his memory of the incident. In my opinion, there was nothing about Mr Grimple's evidence which would introduce an element of unsafety or unreliability into the convictions in this case. In my opinion, ground 8 of the notice of appeal has not been made out and, as a consequence, I am of the opinion that the appeal should be dismissed.
CRAWFORD J
5 March 1998
I agree that for the reasons given by Wright J the appeal should be dismissed.
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