Stokes v The Queen

[1960] HCA 95

HIGH COURT OF AUSTRALIA

Dixon C.J., Fullagar and Kitto JJ.

STOKES v. THE QUEEN

(1960) 105 CLR 279

16 December 1960

Criminal Law—Australian Capital Territory

Criminal Law—Evidence—Admissibility—Sexual offence against female—Evidence of character of prosecutrix—Conduct of trial—Question by judge of witness—After conclusion of re-examination—Application to cross-examine witness on answers to judge—Discretion to permit questions—Refusal to permit—Usual practice to permit further cross-examination by party against whose case answers of witness tend. Australian Capital Territory—Criminal Law—Offender liable to penal servitude for five years—Alternative punishment of imprisonment—Limited to two years—Seat of Government (Administration) Act 1910 (Cth), s. 4—Crimes Act, 1900 (N.S.W.) (No. 40 of 1900), s. 442—Crimes Ordinance 1951 (A.C.T.) (No. 14 of 1951), s. 6.

Decision

December 16.
THE COURT delivered the following written judgment:-
This is an application upon notice by two prisoners for leave to appeal against convictions and sentences. They were convicted upon a joint indictment before the Supreme Court of the Australian Capital Territory. The right of appeal is governed by s. 52 of the Australian Capital Territory Supreme Court Act 1933-1959. That section gives an appeal as of right against a conviction on any ground of appeal which involves a question of law alone and by leave on any ground which involves a question of fact alone or a question of mixed law and fact and also on any other ground which appears to the Full Court of this Court to be a sufficient ground of appeal. (at p281)

2. The applicants were convicted upon a count in an indictment charging that on 6th August 1960 they did assault a girl named Noeline Anne Brien then being under the age of sixteen years, to wit, of the age of fifteen years, and at the time of the assault did commit an act of indecency upon her. They were convicted upon a second trial before Joske J., the jury on the first trial having disagreed upon that count of the indictment. They were each sentenced to three years imprisonment. (at p281)

3. The evidence disclosed that the girl, a shop assistant by occupation, was born on 17th April 1945. (at p281)

4. On 5th August 1960 she left the shop where she was employed at 9 p.m. and walked up the street. According to her evidence the two applicants, whom she did not know, spoke to her and offered her a lift home in a car that was near at hand. There is no point in describing the unpleasant details as she narrated them of their proceedings until at some time between midnight and one in the morning the police intervened in consequence of a telephone call from a lady living in Weetangerra Road, Canberra, who was awakened by shrieks. It is enough to say that the girl's narrative describes many acts of indecency which grew in seriousness as the night advanced and as the applicants drank more and more beer. The lady who was awakened gave evidence and her testimony shows that the girl was shrieking and asking to be left alone and allowed to go home. According to the evidence of the girl from beginning to end she gave no consent to the indecent acts committed upon her person. If a jury were disposed to think that at the beginning she may have consented to some indecent handling by the two men, it would be very difficult for the jury in face of the testimony of the lady who was awakened to believe that her consent continued and covered what the men were doing at that stage. The police took the girl directly to the hospital for medical examination. The evidence of the doctor who made the examination pointed clearly to the conclusion that a considerable amount of indecent and forcible handling of the girl had occurred. (at p281)

5. The applicants are two young men, nineteen years of age, and obviously they had picked her up for no respectable purpose. Their defence however was not that they had not handled her to some extent indecently but that, being a female over the age of fourteen years, she consented to the commission of the offence and that they, the accused, had reasonable cause to believe and did believe, that she was of or above the age of sixteen years. That defence arises under ss. 76, 77 and 77A of the Crimes Act as those sections are inserted by s. 6 of the Crimes Ordinance 1951 of the Australian Capital Territory (No. 14 of 1951). Section 76 provides that a person who assaults a female and at the time of or immediately after or before commits an act of indecency upon or in the presence of the female is liable to imprisonment for three years or if the female is under the age of sixteen years to penal servitude for five years. Section 77A provides that the consent of the woman . . . is no defence, . . . if the female is under the age of sixteen years, to a charge under s. 76 of the Act. Section 77 provides that it is a defence to a charge under certain sections including, if the female is under the age of sixteen years s. 76, if it appears to the court or jury that, at the time of the alleged offence (a) the female was over the age of fourteen years (b) she consented to the commission of the offence and (c) . . . (ii) the person charged had reasonable cause to believe and did believe that she was of or above the age of sixteen years. By statements from the dock the two applicants set up a defence under this latter provision. One made a more lengthy statement than the other but the other adopted it. In effect they said they offered the girl a ride which she accepted. She told them her name, gave the address of her home (in fact a false address) and said she was eighteen years of age, an age which she looked. After drinking beer they handled her with some considerable indecency but not to the extent to which she deposed. She seemed to consent. They were, in the words of the longer statement, "getting a bit drunk by then and some time had passed, and then the girl seemed to be frightened and screamed out that she was only fifteen. And then we said 'All right, we'll go home'.". They proceeded to drink the last of the beer, the girl sitting in the fron of the car between them. The police then arrived. (at p282)

6. The difficulties of the case arise from matters occurring during the course of the trial of which counsel for the applicants complains. The first relates to the disallowance of a line of cross-examination which counsel for the accused began to take. Counsel said to the witness: "This case, in relation to these two accused, that is not the first occasion . . . ". The learned judge intervened and said: "I know what you are referring to. I propose to disallow it. It has no relevance whatsoever to go to this case. It does not go to any matters which are admissible in evidence.". Counsel asked to be allowed to put the question in the absence of the jury who were then sent out. From what occurred in the absence of the jury it appears that the girl had previously been involved in two proceedings relating to indecent assault, one where there had been a conviction for indecency, another in 1957 or 1958 in which a man had been acquitted of indecently assaulting a companion, she being a witness. In the dialogue that occurred before the jury was recalled it was said that in case of an appeal the court of appeal should know what his Honour was rejecting but unfortunately this is just what does not appear in any sufficiently intelligible form. But without objection counsel for the Crown informed us upon the hearing of this application that the first matter intended to be referred to in the proposed cross-examination consisted in an indecent assault upon her by her own father when she was much younger, perhaps eleven years of age. On that footing the disallowance of cross-examination upon it would appear to be correct. But the second matter stands on a different footing. All that we know is that the girl witnessed or said she witnessed an act of indecency upon another girl who was in her company. Prima facie questions are admissible in cross-examination of a prosecutrix or other female complaining of acts of indecency upon her if they tend to the disclosure of her own moral character or prior knowledge and her experience of the character of such acts and if the question is whether her evidence is to be accepted either as to the fact or as to her resistance or want of consent. It is of course possible that the circumstances may displace the prima facie admissibility of such a cross-examination, and it is conceivable that a judge may know this in advance. In the present case however the summary rejection of the cross-examination has given us no little concern. For prima facie it was lawfully admissible and there is nothing to show the contrary. (at p283)

7. The second matter complained of is the refusal of the learned judge to allow counsel for the accused to put questions by way of cross-examination in relation to answers which the medical witness had given to his Honour after the re-examination had concluded. During the cross-examination of that witness the learned counsel for the accused had endeavoured to make the point that there were no marks on the arms of the girl Brien such as would be or might have been expected if the girl's story were true. After the reexamination the learned judge took the matter up and asked questions directed to show that was or might have been the effect of the girl's arms being covered by two garments made of wool or possibly made of wool. Counsel desired to cross-examine as to the answers given but was refused permission by his Honour. No doubt the learned judge had a discretion but it is of course the usual practice to allow some further cross-examination when at the end of a witness's evidence the judge elicits some further matter tending against the party's case or contention. (at p284)

8. The third complaint is that the learned judge's charge to the jury does not adequately present the case of the accused and the evidence or considerations which might be thought to tend in favour of the defence. Subject to an observation to be made with reference to one matter, no more need be said about this contention than that after consideration we think that, adverse as the charge was to the accused, its effect was not to deprive the jury of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence. The observation which it is necessary to make specially concerns a statement made by his Honour with respect to the evidence as to the belief of the accused in the girl's age being over sixteen years. In giving evidence the sergeant of police said that he asked one of the accused whether the girl had screamed and told them that she was only fifteen. He answered Yes but that he did not believe her, meaning of course that he believed that she was older, viz. eighteen. In his statement to the jury the accused said "We quite believed the girl at the time she was eighteen". That of course referred to what, according to them, she said at the outset. Then towards the close of his statement he said: "then the girl suddenly seemed frightened and screamed out that she was only fifteen". He said that they told the police that she was quite willing up to when she said she was fifteen. In his charge to the jury the learned judge referred to the allegation that she had said she was eighteen and went on: "Well, her evidence of course is quite contrary to that statement and as I recall the police evidence a statement was made there by one of the accused - which would be evidence only against him - that she told them she was fifteen years of age but he said he did not believe her, which is quite contrary to the statement they have made today that she had said she was eighteen." There is some ambiguity about his Honour's comment but the quotations show that however it is read the comment is quite erroneous. (at p284)

9. It will be seen that the foregoing matters of complaint are of very different descriptions. The rejection of the cross-examination depends on matter of law; the refusal to allow further cross-examination of the doctor is a question whether a discretion was exercised within bounds, and the third is purely a question of a misdirection on fact or evidence. (at p284)

10. In the end we think the decision of the application must depend upon the general rule that if an error of law or a misdirection or the like occurring at the trial is of such a nature that it could not reasonably be supposed to have influenced the result a new trial need not be ordered. The rule applies, we think, in an appeal under s. 52 of the Australian Capital Territory Supreme Court Act 1933-1959. In considering the operation here of this rule we have been much impressed by the very great strength of the evidence showing that, at all events towards the close of the accused's treatment or handling of the girl, she did not consent and they knew it. Indeed the strength of the evidence of the lady who rang the police; of the doctor who examined the girl, and of the police who intervened and indeed of the circumstances appearing is so great that no other verdict could reasonably be expected even under a summing up quite unexceptionable. It is impossible therefore to sustain an appeal against the conviction. The only matter for consideration is the sentences imposed. These appear to be severe. Moreover there is a difficulty of law about them. Section 76 makes an offender liable to imprisonment for three years but goes on to say "or if the female is under the age of sixteen years to penal servitude for five years". In the present case the female was under sixteen years of age and accordingly to authorize the learned judge to impose imprisonment as his Honour did and not penal servitude some other statutory provision authorizing him to do so must be found. Such a provision exists in s. 442 of the Crimes Act, 1900 (No. 40 of 1900) of New South Wales which was continued as the law of the Australian Capital Territory by s. 4 of the Seat of Government (Administration) Act 1910. But an examination of s. 442 will show that where a statute provides, as s. 76 does, for penal servitude for five years the alternative punishment by way of imprisonment for which the section provides is limited to two years. The terms imposed by the learned judge were each of three years. Apart from the legal difficulty we think the period too long. It follows that the terms must be reduced. On the whole we think that they should be reduced to eighteen months each. (at p285)

Orders

Leave to appeal granted. Hearing of the application to be treated as the hearing of the appeal. Appeal so far as it relates to convictions dismissed: so far as it relates to sentences allowed. Sentences reduced to eighteen months imprisonment.