Strickland v The Queen
[2000] WASCA 79
•3 APRIL 2000
STRICKLAND -v- THE QUEEN [2000] WASCA 79
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 79 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:180/1999 | 10 MARCH 2000 | |
| Coram: | PIDGEON J WALLWORK J MURRAY J | 3/04/00 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave granted Appeal allowed Conviction quashed New trial ordered | ||
| PDF Version |
| Parties: | PAUL JAMES STRICKLAND THE QUEEN |
Catchwords: | Criminal law and procedure Evidence of identification or recognition Evidence of complainant in sexual assault case Need for trial Judge to direct jury as to danger of conviction and particular weaknesses of evidence Complainant nominating other offenders in making complaint of offence Conviction quashed Order for retrial made |
Legislation: | Nil |
Case References: | B v The Queen (1992) 175 CLR 599 Davies & Cody v The King (1937) 57 CLR 170 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 Domican v The Queen (1992) 173 CLR 555 Edwards v The Queen (1993) 178 CLR 193 Huck v The Queen [1988] WAR 231 King v The Queen (1986) 161 CLR 423 M v The Queen (1994) 181 CLR 487 R v Marijancevic (1993) 70 A Crim R 272 R v Turnbull [1977] 1 QB 224 Alexander v The Queen (1981) 145 CLR 395 Bourke v The Queen (1988) 62 ALJR 425 Bromley v The Queen (1986) 161 CLR 315 R v Cecconi (1988) 34 A Crim R 160 Cleland v The Queen (1982) 151 CLR 1 R v Holden (1990) 56 A Crim R 32 Jones v The Queen (1997) 191 CLR 439 R v King (1985) 17 A Crim R 184 R v King (1986) 21 A Crim R 436 King v The Queen [1999] WASCA 9 Longman v The Queen (1989) 168 CLR 79 M v The Queen (1994) 181 CLR 487 Mickelberg v The Queen (1989) 167 CLR 259 R v Fotheringham [1975] Crim LR 710 R v Schmahl [1965] VR 745 R v Torney (1983) 8 A Crim R 437 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : STRICKLAND -v- THE QUEEN [2000] WASCA 79 CORAM : PIDGEON J
- WALLWORK J
MURRAY J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Evidence of identification or recognition - Evidence of complainant in sexual assault case - Need for trial Judge to direct jury as to danger of conviction and particular weaknesses of evidence - Complainant nominating other offenders in making complaint of offence - Conviction quashed - Order for retrial made
Legislation:
Nil
Result:
Application for leave granted
(Page 2)
Appeal allowed
Conviction quashed
New trial ordered
Representation:
Counsel:
Applicant : Mr R D Young
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Gunning
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
B v The Queen (1992) 175 CLR 599
Davies & Cody v The King (1937) 57 CLR 170
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
Domican v The Queen (1992) 173 CLR 555
Edwards v The Queen (1993) 178 CLR 193
Huck v The Queen [1988] WAR 231
King v The Queen (1986) 161 CLR 423
M v The Queen (1994) 181 CLR 487
R v Marijancevic (1993) 70 A Crim R 272
R v Turnbull [1977] 1 QB 224
Case(s) also cited:
Alexander v The Queen (1981) 145 CLR 395
Bourke v The Queen (1988) 62 ALJR 425
Bromley v The Queen (1986) 161 CLR 315
R v Cecconi (1988) 34 A Crim R 160
Cleland v The Queen (1982) 151 CLR 1
R v Holden (1990) 56 A Crim R 32
Jones v The Queen (1997) 191 CLR 439
R v King (1985) 17 A Crim R 184
R v King (1986) 21 A Crim R 436
(Page 3)
King v The Queen [1999] WASCA 9
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
Mickelberg v The Queen (1989) 167 CLR 259
R v Fotheringham [1975] Crim LR 710
R v Schmahl [1965] VR 745
R v Torney (1983) 8 A Crim R 437
(Page 4)
1 PIDGEON J: I have read the reasons to be published by Murray J. I agree with those reasons and the orders proposed.
2 WALLWORK J: I have had the advantage of reading the reasons for judgment of Murray J. I agree with those reasons and with the orders proposed by his Honour.
3 MURRAY J: Although in form this proceeding was an appeal against conviction, it ought to have been brought as an application for leave to appeal and I propose to treat it as such.
4 The applicant was convicted after a jury trial in the District Court on 18 - 20 August 1999 of an offence of sexual penetration without consent committed on 28 June 1997 at the applicant's home in Calista. At the trial there was no question that the complainant was sexually assaulted. The offence occurred at a 21st birthday party held at his home by the applicant for his nephew, one Colin Bonser. There were a number of people at the party. Generally speaking they were young people. The complainant herself was only 16 years old. The issue at the trial was whether the complainant was not only honest, but also accurate, in her identification of the applicant as the offender.
5 The grounds upon which the application is based are as follows:
"1. The verdict was unsafe, unsatisfactory and against the weight of evidence, in particular:
(a) The complainant was extremely intoxicated at the time of the incident;
(b) Evidence was led by Crown witnesses to the effect that the complainant had identified at least one other person before identifying the appellant, and failed to give any description of the appellant;
(c) The identification of the appellant as the offender was unsafe given that the complainant did not go to the police until more than a month after the sexual assault, and had seen the appellant in the meantime. Accordingly, any description given of the appellant had no probative value in identifying him as the offender.
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- 1A The learned trial Judge failed to adequately warn the jury of the danger of convicting on the evidence of identification given at trial.
2. The learned trial Judge erred in law in allowing the Crown to put to a witness his statement for the purpose of refreshing his memory.
3. The learned trial Judge erred in his direction to the jury in that his Honour gave a detailed outline of the Crown's submissions regarding the appellant's demeanour on the videotaped record of interview and comments about the complainant where those comments could in no way be probative of a guilty conscience.
4. The learned trial Judge erred in his direction to the jury in suggesting that the Appellant's evidence that he had slept with his wife on the night was unlikely because they had an argument and in describing the evidence as disclosing a 'considerable' argument where the evidence went no further than stating that at some time, there had been an argument."
6 To deal with the grounds requires a review of at least the relevant portions of the evidence led at trial.
7 The complainant's evidence was that she was invited to the party by a friend, Kelly Hines. She went with Ms Hines and another friend, Steven Kemp. They were all children of about the same age. Upon arrival, early, at about 6.30 pm, the complainant met the applicant. She had seen him at some earlier time and knew him to be Colin Bonser's uncle. Apart from that night, importantly, she did see him once later at the local shopping centre when the applicant angrily shouted something suggesting that he would be revenged upon her, presumably as a result of the complaint she made of the offence committed against her. The important aspect of that encounter is that she saw the applicant then as the person against whom her complaint had been made.
8 There were up to 20 persons present at the party at any given time, males and females, many about the age of the complainant, but other persons older, and included in that group was the applicant. The complainant commenced to drink some alcoholic beverage which was
(Page 6)
- contained in what she described as a silver keg. She became gravely intoxicated to such an extent that she vomited. She was showered by her friends Hines and Bonser and the applicant assisted in that process. It appears that she was clothed when she was showered and after that she was taken to a bedroom where there was a double bed in which a small child of about 3 years of age was sleeping. She was put into the bed and fell asleep.
9 Some time later she woke to find that her clothing had been removed and a man was having sexual intercourse with her. Despite her efforts to resist that process, it continued to ejaculation. She identified the applicant as the offender. She said there was a gap in the door, there was light outside and she could see that it was him. She particularly mentioned tattoos on his arm. During the intercourse two people came into the room on separate occasions. The applicant, she said, told them to leave and they did so.
10 When her assailant left the room she dressed and rushed outside the house in tears. There she came together with Kemp and Hines. They walked home together. Although her evidence was a little confused as to whom she spoke about the incident, she said that she did make a complaint to Kemp and Hines as they walked home, that she had been raped by the applicant.
11 Cross-examined about her identification of the applicant, she said she knew it was him because she had seen him with tattoos on his arms at the local shopping centre "doing trolleys". She thought he was a foreman at the local shopping centre. Although, when cross-examined, she did not specifically say that that was before the sexual assault, it is clear in my view that that was so. She could not, however, recall what the tattoos were, where they were on his arm, or which arm was tattooed. She was not asked about, and she did not refer to the fact that apparently at the time the applicant wore what was described at trial as a "full goatee beard".
12 As to her complaints, at one stage when cross-examined she said that she had said nothing to Hines and Kemp on the way home because she was frightened, in tears, and just wanted to get home. She agreed that Bonser had been with her after the incident before she left the house, but said he had not left the premises with the other three. However, in cross-examination various versions about what she was supposed to have said to other people were put to her. It seems not to have been seriously suggested that she was confused about whether or not she spoke at all to
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- her friends about what had happened as they were on their way to her home, but there are more significant aspects of the evidence of recent complaint which deserve attention.
13 Steven Kemp gave evidence. As at the date of the offence committed against the complainant, he was 15 years old and he seems to have had associations with all concerned. He was a friend of Bonser. He worked as a trolley boy for the applicant. Kelly Hines was his girlfriend. He had known the complainant since the early days of their primary schooling. When speaking of what was said as the complainant, Hines and he walked home, he confirmed how distressed the complainant was and that she said she was raped. When asked if she said anything else he answered, "Something about the person that walked in the room said it was Colin - said, 'Don't worry, it's Colin.' I can't remember too much of what she said." The reference to Colin was clearly to Colin Bonser. Whether the witness meant that the complainant said that Bonser was one of the two persons who was said to have entered the room while the offence was being committed is not clear.
14 After some further questions the learned prosecutor returned to the walk home. The following exchange occurred:
"So [the complainant] was crying and she said she'd been raped. Did she say anything else about that?---No, not really.
Did she say anything about who had raped her?---I don't think she said Paul's actual name. She said that the person who went in the room said they were Colin.
Did you tell the police that?---I think so, yeah. I don't think it's in my statement.
Did you tell the police that [the complainant] had told you that Paul had raped her?"
15 There was an objection to that obviously leading and impermissible question. Counsel asked the witness if he had had a chance to look at his statement and he said he had done so earlier that day. Doing so, he said, had helped to refresh his memory as to what he had told the police. The real question, of course, was whether that refreshed his memory as to what had occurred on the night in question. However that may be, the witness was then excluded from the courtroom and after hearing submissions from counsel the learned trial Judge permitted the prosecutor to put to the witness in the presence of the jury that he had made a
(Page 8)
- statement to the police on 5 August 1997, about five weeks after the date of the offence.
16 Again the witness was asked the wrong question whether he recalled what he had told the police. When he said he did not remember, the prosecutor was allowed to show him the statement and the witness read it. After he had done so he asked the prosecutor to confirm that he had given the evidence that the complainant told him she had been raped. He then said he remembered what he had told the police. When directed to a particular portion of the statement, he said that he had told the police that on the way home the complainant had told him that the applicant had come into the room and raped her. He confirmed that that was indeed what the complainant had said to him.
17 In my respectful opinion this process miscarried and in my view ground 2 is made out. In the first place it is to be noted that the complainant's evidence was that she did not know who the people who came to the door while the offence was being committed were. It was highly unlikely then that she would have nominated Bonser as being one of them. Kemp's evidence would have been understood to be that she complained that Bonser was the rapist. Kemp did not give evidence that he could not remember what she said. All he said was that beyond the fact that she had said she was raped and the person "who went in the room" said he was Colin, he could not remember too much of what she had said. He did not say he could not remember the matters about which he had been asked and in my opinion, although it is well accepted that a witness who professes a lack of memory may be shown a contemporaneous statement to refresh that memory, that situation did not arise in this case.
18 In the result, by being improperly shown the statement, the witness said that the complainant had nominated the applicant as the rapist, leaving unresolved what she had said about Colin Bonser. It seems clear that this witness would not have given evidence that the complainant complained that the applicant had raped her had he not been shown his statement.
19 The next witness was Kelly Hines. She was 16 years old at the time of the incident in question. Her evidence confirmed the way in which the complainant said she was involved. She had helped when the complainant became ill, she had showered her and had put her to bed. She said she checked on the complainant and found her asleep. She did that three or four times. She also asked Bonser and Kemp to check the
(Page 9)
- condition of the complainant. She understood that Bonser did so no more than half an hour after the complainant had been put to bed.
20 She confirmed that she had been with the complainant later at the front of the house and that she had walked home with her. At the front of the house the complainant said to her, "I think I've been raped." Hines then gave the following evidence:
"Did she say anything else to you?---I asked her who she thought done it and she said - first she said she thought it was Colin and then I said, 'He was with me all night.' She said, 'I thought' - this guy there that was called Kenny, and I said he'd gone home. Then she said, 'I think it was Colin's uncle.'
Did you ask her why she thought that?---Yeah. She said because he looked old."
- It emerged that Ms Hines may have had some loyalties to the applicant. She said that shortly after the particular night she ceased to be Kemp's girlfriend and became Bonser's girlfriend. Later still, she moved in to the applicant's house to live.
21 Colin Bonser gave evidence. He was a little older than the other witnesses. It will be recalled that the night in question was the celebration of his 21st birthday. Again he confirmed that he was one of those who assisted to shower the complainant and put her to bed. Later he saw the complainant when she came out of the bedroom upset. He said he was one of those who were with the complainant as she walked home. He was asked:
"Did you follow her?---Yes, I did. I went down to the end of the road. There she told me that while she was in the room someone had walked in. She'd seen the face and at first she thought that it was me. She turned around and said, 'Don't, Colin.' A bloke turned around and said, 'It's not Colin. It's the bloke who's running the party.' Other than that, that was it. That's all I got told."
- Bonser in fact denied that he had been a person who had entered the room while the act of intercourse was occurring.
22 The evidence was clear only to the extent that it established the consistency of the complainant's conduct in that she complained that she had been sexually penetrated without her consent. As to the identity of the offender, she gave evidence that it was the applicant. She said she had
(Page 10)
- seen him before. She had been introduced to him earlier when she was sober. She said she could remember what had occurred. When the act of intercourse was occurring she saw the applicant by the light that was coming from the door and she noted the tattoos on his arm. However, she mentioned nothing about his beard.
23 Later, when she told others what had happened, apart from the recent complaint aspect of the evidence it was relevant to the issue of identification to know who she said was the offender immediately after the incident. She was said to have told Kemp and Bonser firstly that the person who came into the room said it was Colin and then that it was the applicant who had raped her. She was said to have told Hines that it was Colin who was the rapist and then she nominated Kenny and finally the applicant because he looked old. It should be said that one Kenneth Mandoza was also called. He gave evidence that he was at the party, but he said he was not the offender, although he was aware that he had been accused of being the culprit.
24 A significant feature of Mandoza's evidence was that in the hallway he looked through the door of one room and saw the applicant "with somebody" and then he saw the applicant's wife in another room. Of course, having at one time been nominated as the offender and being aware of that fact, it was clear that Mandoza may have had an interest to serve in implicating the applicant and the jury were told by the learned trial Judge to be wary of this witness on that ground.
25 Finally, no complaint is now made of the fact that the principal investigating police officer, PC Seldon, gave evidence that he spoke to the complainant on 31 July 1997 about a month after the offence was committed and the complainant then nominated the applicant as the offender, including in her description the fact that he had a "distinguishable beard", a tooth missing and tattoos.
26 The question then for the jury was whether, in the light of all that evidence as to what the complainant had said out of court about the identity of the offender, they were prepared to accept and rely upon her evidence as being an accurate identification of the applicant as the offender given that, upon the evidence, he was not then a stranger to her. I consider that the question was whether her evidence that she recognised the applicant as the offender was accurate, because it was not suggested that she made a deliberately false identification. What was in issue was whether she could have been honestly mistaken.
(Page 11)
27 This was the principal issue at the trial and so when the learned trial Judge charged the jury, he spent much more time discussing the evidence to which I have referred above than any other evidence in the trial. He read to the jury much of the evidence to which I have referred.
28 His Honour told the jury, as they must have appreciated, that this was the central issue in the case. Before discussing it in any detail his Honour dealt with the evidence of complaint. He described in legally correct terms the use to which that evidence might be put. His Honour told the jury that the fact that the applicant had been mentioned in such evidence could not in any way be taken as evidence to prove his guilt of the offence charged. He cautioned the jury that a number of the witnesses in the case, particularly Mandoza, might be thought to have interests of their own to serve in ways which might colour the evidence they gave. His Honour warned the jury to bear that in mind when assessing the credit-worthiness of those witnesses. His Honour mentioned in that regard the effect of alcohol. In effect, so far as the complainant was concerned, his Honour told the jury that she was obviously seriously affected by liquor to such an extent that there was a real question about the reliability of her perceptions and recollection.
29 Then his Honour turned to the issue of identification with this observation:
"Now let me come to identification. As I have already said, identification is critical in this case. No other element of the crown case is seriously disputed but this. Now there are some difficulties with the identification evidence in this case which I will come to when I canvass the evidence, but you should be alerted to the fact that the long experience of the law in criminal trials - and I'm talking of hundreds of years, not just five or ten - is that innocent people have been convicted upon honestly mistaken evidence."
- It is to be borne in mind that it was precisely the suggestion that the complainant was honestly mistaken upon which the defence relied.
30 His Honour then turned to and highlighted particular issues arising out of the evidence. He mentioned the identification made in evidence by the complainant, the circumstances in which she saw her assailant, her reference to the tattoos and the lack of reference to the full goatee beard (although of course she did apparently mention this to the investigating police). Her evidence about the terms of the complaint she made to Kemp and Hines was referred to and the jury were reminded that the
(Page 12)
- complainant agreed that she had seen the applicant later at the local shopping centre when he had made some vengeful remark, but no comment was made about that evidence.
31 The learned Judge reminded the jury that in cross-examination the complainant was unable to identify upon which arm or whereabouts on the arm the tattoos appeared. She was unable to say what they were, but as the Judge reminded the jury, the applicant has on his shoulder or upper arm the word "Paul". The jury had seen that tattoo. His Honour invited them to consider whether the complainant should have done so. He invited the jury to consider whether they would have expected her to have noticed, and recalled in giving her evidence, the applicant's beard.
32 His Honour then turned to the evidence about what she had said after the event and when and to whom, and he reminded the jury of the inconsistencies within the applicant's evidence and the conflict between her evidence and that of Kemp, Hines and Bonser, whose evidence his Honour reviewed. His Honour reminded the jury that Kemp's evidence that the complainant nominated the applicant as the offender was only led from him after "he had been given permission to refresh his memory from a previous statement made at or about the time of the events". However, beyond bringing all the evidence relevant to the issue to the notice of the jury in a way which enabled them to focus upon the differences in the evidence of the various witnesses, his Honour made no further observation about the significance of that evidence in respect of the issue of identification.
33 The one exception was when his Honour referred to the complainant's evidence that she knew her assailant was the applicant because she had seen him "with tattoos on his arms at the local shopping centre when he was doing trolleys". His Honour told the jury that the evidence was equivocal as to whether the complainant had seen the applicant in that situation before or after the offence committed against her and he said, "If it was after, then obviously it can't be used as identification of Mr Strickland: can't be." By that I think his Honour was intending to convey a warning about what has been described as the displacement effect when a witness has seen the accused on occasions other than that when the offence was committed. A later identification may be rendered suspect because the witness may be identifying the person seen on the other occasion rather than at the time of the offence.
(Page 13)
34 His Honour made a similar observation about the evidence of PC Seldon that the complainant had mentioned the goatee beard to him when giving a description of the applicant as the offender. He said:
"So here he is, he's the officer to whom the complaint is first directed. He speaks with the complainant and his testimony is when he first speaks with her - it's the first contact she has with the police - she mentions that the accused had a goatee beard. You must nevertheless still treat this evidence with caution because what we don't know is whether the evidence about the goatee beard was given as and by way of an identification of Mr Strickland, which is a different thing from identifying the person who was raping her. You have to be careful that she is identifying the rapist and not telling him who Mr Strickland is. From that passage of transcript that I have just read to you, you can see that that issue is still there for you to decide."
35 I turn now to the relevant law. In Domican v The Queen (1992) 173 CLR 555, the High Court reviewed previous authorities and discussed the directions required of a trial Judge in respect of evidence of identification. As I have already observed, this trial Judge very completely reviewed the evidence. It was helpful to the jury that he did so, although the trial was short and the details of the evidence were no doubt clearly in the jury's recollection. As the High Court commented in Domican, the trial Judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence (560) and, as the Court said at 561:
"Whether the trial Judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence."
36 But in a case where the identity of the accused as the offender is a significant issue, it is abundantly clear that the trial Judge must go further. History has shown, and the Judges have appreciated, the wisdom of the rule as the High Court summarised it at 561 - 2 that:
"…where evidence as to identification represents any significant part of the proof of guilt of an offence, the Judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the
(Page 14)
- warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the Judge's office behind it. It follows that the trial Judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."
37 The point which is relevant to this case, as it seems to me, is that this was such a case and unless in the circumstances of the case the general reference to the fact that "innocent people have been convicted upon honestly mistaken evidence" is sufficient to discharge the duty of the trial Judge to warn of the dangers inherent in evidence of identification, then it seems to me that the thorough review of the evidence undertaken by his Honour did not repair the omission because generally speaking, in that review, the impact of particular pieces of evidence upon the reliability of the complainant's clear evidence identifying the applicant as the offender was not discussed, or was only referred to in passing as posing questions with which the jury would have to deal.
38 In particular, in my opinion, a much more weighty general direction about the dangers of convicting upon the complainant's evidence of the identification of the applicant should have been given. In particular, as has been abundantly clear since R v Turnbull [1977] 1 QB 224, 228, without dictating the words to be used, his Honour was obliged to make it clear to the jury that the special need for caution before convicting upon evidence of identification arises out of the fact that the witness may be not only mistaken, but also convincing, sure in his or her mind of the correctness of the identification. In other words, a reference should have been made to what in Domican at 561 the High Court referred to as "the seductive effect of identification evidence."
39 His Honour should then have not only reviewed the evidence, but should have linked to it the need for the jury to carefully consider the impact upon the accuracy of the complainant's identification of such matters as the evidence of her severe intoxication before she was put to
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- bed. There was no evidence as to how long she had been asleep, but the jury needed to give careful consideration to whether she remained severely intoxicated when she was awakened by the attack made upon her. Then there needed to be careful discussion of the circumstances of her identification; where the lighting was, its strength, what was happening to her, for how long she was in the presence of her attacker.
40 The inconsistent evidence as to who, shortly after the event, the complainant said was her assailant should in my opinion have been linked directly to the question of how certain the complainant then was of the identity of her attacker, and there was particular significance, depending upon which body of evidence the jury accepted, in the fact, if the jury so found it to be, that it was only when other persons were eliminated as the offender she came to nominate the applicant.
41 Finally, the jury needed to be told to carefully analyse the potential for confusion to arise out of other occasions when the complainant said she had seen the applicant and become somewhat familiar with who he was. If the jury was satisfied that she had previously seen him, not only for some time earlier at the party, but prior to that, it would obviously strengthen her capacity to make a reliable identification. On the other hand if the evidence was equivocal as to that, and the jury thought it might be the case that she had seen him only after the event, then the contrary effect needed to be discussed and the jury needed to be warned that they must be satisfied beyond reasonable doubt that the complainant was not nominating as the offender a person she had recognised from other occasions.
42 When she described a person to PC Seldon, was she describing the person who had committed the offence or by then, almost by a process of elimination, being certain it was the applicant, was she simply describing him, a person she had seen on other occasions? Further, in relation to that evidence and certainly in relation to her evidence at trial, the same question arose. The danger needed to be expressly identified to the jury arising out of the evidence that after the event she had seen the applicant at the shopping centre and he had shouted some vengeful remark at her, thereby clearly identifying himself as the person about whom she had ultimately complained. Was she when she gave evidence truly identifying the offender when she named the applicant, or was that impression in her mind reinforced by the later incident which may have had the effect of dispelling any doubt?
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43 I do not comment in this regard upon the complainant's failure to mention in evidence the applicant's beard or her incapacity to describe and correctly locate his tattoos. These were matters which, in my respectful opinion, were appropriate discussed by the trial Judge in directing the jury.
44 For the respondent it was argued that the need for more complete and pointed directions of the type to which I have referred above was in this case removed by the fact that the complainant was identifying a person with whom she was familiar and who she said she recognised as the assailant, but in my opinion this argument may not be accepted. In Turnbull at 228, the English Court of Appeal said:
"Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made."
45 That view has been accepted in this country at least since the decision of the High Court in Davies & Cody v The King (1937) 57 CLR 170, 181 and we were also referred to the decision of the Vic Court of Criminal Appeal in R v Marijancevic (1993) 70 A Crim R 272, 276. But that merely provides the reminder that no particular form of words is necessary to adequately direct the jury upon the dangers posed by identification evidence. Everything depends upon the circumstances of the particular case. In the circumstances of this case I have come to the view that a more comprehensive and specific warning was required. I would uphold ground 1A.
46 Before dealing finally with ground 1, I should comment briefly upon grounds 3 and 4.
47 Ground 3 relates to the videoed interview conducted by the police with the applicant following the complaint made against him. In discussing this interview with the jury, his Honour said:
"Each of the prosecution and the defence have different ways of looking at this record of interview and you will have to come to some conclusion about it. The defence says it constitutes a complete denial, with no implication in the events of the evening in question. The prosecution says, 'Look to the demeanour of the man in the record of interview and look to what he says and ask yourselves these questions. Is this man
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- telling the truth? Does he know more than he's prepared to let on? And importantly, when he initially denies knowing the girl in question and denied, under his oath, that he knew her at the time of the police interview, you will recall - are those denials real?'
Admitting to hearing rumours about accusations of sexual molestation by a girl at the party, admitting that he had been introduced to the girl, admitting that he knew who she was and was able to describe her - the crown says look at the video record of interview and you will see a person who at first denies any knowledge of the complainant, Rose-Maree Kavanagh but clearly, in the record of interview, knows very well who she is and what she said about him and, says the crown, worse, he denigrates her.
What would be his motive for telling the police that she was dressed like a tart at the party? What would be his motive for saying that she was rubbing herself up and down on all and sundry? The crown says all of this only goes to demonstrate that he has a guilty mind and had a guilty mind about these events at the time he was interviewed by the police because they're inconsistent with the way in which an accused person would behave if these accusations were truly false.
Why would he feel the need to divert attention away from himself and to show that she was engaged in some form of sexual behaviour with other men at the party if it wasn't to say, 'Look, she was playing up with so many other blokes there it could have been anybody and it wasn't me, …"
48 The learned trial Judge clearly identifies himself with the arguments of the Crown and of course his Honour was perfectly entitled to do so. He was empowered to make such observations upon the evidence as he saw fit. He was entitled to make those observations robustly and strongly. He was not obliged to sit on the fence if he thought it was appropriate that he should express his agreement with a view of the evidence favoured by either the prosecution or the defence.
49 However, in this case, I think the remarks were unfortunate. His Honour might well have considered it appropriate merely to remind the jury of the prosecution's arguments, leaving to the jury the task of weighing their cogency, but here his Honour went further, and I think
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- there is some force in the applicant's argument that the way in which the applicant portrayed himself on the video tape provided tenuous ground for the conclusion that he was endeavouring to cover up a consciousness of his guilt and was endeavouring to deflect attention from himself onto the complainant. Throughout the interview the applicant firmly denied any implication in the offence. The jury might have considered that the applicant was a rather rough and uncouth person, lacking refinement. It is clear that in daily parlance the applicant speaks roughly and uses swear words. The jury may have considered that his remarks reflected an angry reaction to the fact that the complainant had nominated him as the offender.
50 I doubt, with respect, that this was an aspect of the evidence upon which judicial comment was warranted, but if comment was to be made, in my respectful opinion the competing inferences needed to be put and in discussing that advanced by the prosecution a much more complete direction was required as to the circumstances in which the jury might properly take the demeanour and behaviour of the applicant when interviewed by the police as evidence of guilt. One has only to consider the care which needs to be taken and the sort of directions which need to be given when it is suggested that in evidence or in statements made to investigating police officers the accused person has lied to cover up his guilt of the offence charged: cf Edwards v The Queen (1993) 178 CLR 193. I would uphold the third ground of appeal, but to my mind this is not a matter of sufficient importance, either alone or in combination with the grounds to which I have already referred, to lead to the conclusion that a miscarriage of justice has occurred.
51 Ground 4 is concerned with the evidence about the relationship between the applicant and his wife on the night in question, the significance of which lies in the evidence of Colin Bonser who said that after the complainant had left the party and he had followed her up and spoken with her (evidence to which I have previously referred), he returned to the party, went to the keg and drew himself a beer. The applicant came to him, put his arm around Bonser's shoulder and said, "It's your 21st and I got a root. What's wrong with you?" Bonser said that at the time he thought the applicant was referring to his wife who, so far as Bonser knew, was in her room.
52 Although the applicant gave evidence in his own defence, his wife was not called. Evidence was given for the Crown by one Donna Hislop, that she arrived at the party when the complainant was vomiting. Hislop spoke to the applicant, asking after his wife. She was told that the
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- applicant's wife was in bed. She went to her room and found her there. From her evidence the time would then have been about 10.30 pm. When she asked the applicant's wife why she was in bed, "she said that she was in the shit".
53 When the applicant gave evidence he admitted that he had had an argument with his wife following which she retired to bed. He said he himself retired at 10.00 pm, 10.30 pm, "something like that, close to midnight." He said he then had sexual intercourse with his wife; "just a normal thing my wife and I would do of a night when we are in bed", and he did not leave that room until the following morning. He denied having the conversation with Bonser to which I have referred.
54 The significance of this evidence then was, as the prosecution suggested, that if the jury found there was an argument between the applicant and his wife, they might consider that he would not then have had sexual intercourse with her. If they accepted Bonser's evidence that he had had the conversation with the applicant, to which he testified, the jury might then consider that to be an admission that the applicant had sexually penetrated the complainant.
55 Again the evidence, in my opinion, only tenuously supported that argument. Hislop's evidence suggesting that there had been an argument between the applicant and his wife was hearsay. The learned trial Judge said as much to the jury. The only direct evidence about the argument was that given by the applicant himself. There was no evidence as to the nature of the argument, its subject matter, how heated it was, or that it would in any way interfere with whatever were the normal domestic arrangements between husband and wife. If the jury accepted Bonser's evidence and rejected that of the applicant, there was nothing to suggest that the applicant was making an admission that he had sexual intercourse with the complainant, as opposed to any other female present at the party.
56 His Honour touched upon this issue when mentioning the evidence of Ms Hislop by saying:
"But another issue arises out of Hislop's evidence and this is the reason why the crown led it. It puts the wife in bed in the shit with the husband, if I can use the language of the witness. This is the same wife, being the only wife, who the accused has said in his record of interview - he didn't use these words, you will have been careful to note in his own evidence - she was the only person with whom he said he had had sexual intercourse that
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- night and yet they had had, as we know the testimony discloses, a considerable argument and here she is - there's testimony of the wife regarding herself as being at odds with her husband, and in a separate room to him. Now, that evidence was put in without objection or exception but I must warn you it is hearsay testimony. There is no evidence that the accused was in a position to hear it. So treat it carefully. Right. I have covered the issues that arise out of Ms Hislop's evidence."
57 In my respectful opinion this comment was also inappropriate. There was no reference to what use might be made of the evidence given by Hislop beyond the comment that it was to be treated carefully because it was hearsay. The evidence of the applicant is not referred to at this point. There was no evidence disclosing "a considerable argument". However, in this case his Honour did not directly link this material to the evidence of Bonser, to whose evidence in this regard he had previously referred, and his Honour did not expressly identify himself with the question whether the jury might, if they considered that the applicant did not have sexual intercourse with his wife, have been confessing to Bonser in effect that he had sexually penetrated the complainant. Further, this was a matter about which defence counsel made a complaint when the jury retired and it was one of the matters to which his Honour referred when he recalled the jury for brief re-direction. He said, "You may find it within your experience that couples who argue do recommence having sexual intercourse."
58 Again, with respect, it seems to me that this issue might have received different attention from his Honour and it did have the potential for the jury to consider that the learned trial Judge was again identifying himself with, and approving, an argument put by the prosecution. Again, it seems to me, with respect, that the error identified in the fourth ground of appeal is established.
59 I have mentioned that it is of course the case that a trial Judge in commenting upon the evidence may do so robustly and forthrightly where such comment appears to be warranted for the purpose of assisting the jury in their task of deciding whether the guilt of the accused has been established beyond reasonable doubt. His Honour told the jury that where he commented upon the evidence and expressed views about matters of fact, his comments and views did not bind the jury and they were free, indeed obliged, to form their own views upon those matters. But the care which must be taken in making specific comments on the evidence is in
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- my respectful opinion well expressed by Brennan J in B v The Queen (1992) 175 CLR 599 at 605 where his Honour said:
"A trial Judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury. It must exhibit a judicial balance so that the jury is not deprived 'of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence': Stokes v The Queen (1960) 105 CLR 279, 284."
61 I would prefer in that regard to rest my judgment upon my view that grounds 1A and 2 have been made out. The erroneous direction in relation to the identification evidence, together with the way in which Kemp's evidence consistent with that of the complainant that she did identify the applicant as the offender was led, result in my view in the need to grant the application for leave to appeal, to allow the appeal and to quash the conviction.
62 It would follow from that result that I need not express a view about the issue raised by ground 1, whether the conviction was so unsafe or unsatisfactory that it should be quashed. But, having regard to the view to which I have come, it is in any event necessary that I should consider whether or not I would order a retrial and in that regard I must consider the strength of the Crown case. It is convenient therefore to deal with ground 1 and I start by referring to the law as stated by the High Court in M v The Queen (1994) 181 CLR 487. In a case where there is evidence to support a conviction, but the appellate court is asked to conclude that the verdict is unsafe or unsatisfactory, the court must ask whether it thinks that upon the whole of the evidence it was open to a reasonable jury properly instructed as to the law to be satisfied of guilt beyond reasonable doubt. In dealing with that issue, the appellate court must not overlook that it is to the jury under our system of criminal law that the
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- determination of guilt is entrusted and the jurors see and hear the witnesses as they give their evidence.
63 In my opinion ground 1 cannot be made out because upon the evidence of the complainant there was a very clear case that the applicant was guilty of the sexual assault committed upon her. The evidence of difficulty with respect to the identification of the applicant was, in my opinion, capable of explanation, in so far as it was accepted by the jury, in ways which did not irremediably damage the complainant's credibility. For example, she may not have mentioned the applicant's beard in giving evidence because she simply overlooked the fact that she knew he was wearing one. She had, after all, mentioned the beard to the investigating police officer, PC Seldon. She may have seen the tattoos, but quite genuinely had simply been unable to recollect where on the applicant's arm they were located and what they were.
64 The jury may not have accepted the evidence of Kemp, Hines and Bonser as to what she said afterwards. The jury may have thought those witnesses were connected with the applicant in some way which would render their evidence unreliable, or which would bring their veracity into question. It was not necessarily the case that what the complainant had seen of the applicant on other occasions rendered her evidence of identification unreliable, any more than it was necessarily the case that she must have been found to be so intoxicated that her perceptions would have been disordered to the extent that reliance could not be placed upon her evidence of identification.
65 However it remains necessary to consider whether this is a case where a retrial should be ordered, bearing in mind that neither party presented any argument to the court upon this issue on the hearing of the appeal, and so nothing was advanced which would go against the proposition that a retrial should follow the quashing of the conviction except the debate about the capacity of the evidence to sustain a conviction. As to such a case, it was said in King v The Queen (1986) 161 CLR 423 at 433 by Dawson J, with whom Gibbs CJ, Wilson and Brennan JJ agreed, that:
"It is well established that the discretion to order a new trial should not be exercised when the evidence in the court below was not sufficiently cogent to justify a conviction, or to allow the Crown to supplement a case which has proved to be defective. In particular, the Crown should not be given an
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- opportunity to make a new case which was not made at the first trial."
- That would not be the case here, although no doubt it might be the case that the evidence at a new trial might be different and more favourable so far as the Crown was concerned.
66 However, in Huck v The Queen [1988] WAR 231 at 235, Burt CJ, following Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630, described the question of the sufficiency of the evidence to sustain a conviction as the first question to consider in respect of the exercise of the discretion to order a retrial. I have already indicated that my view is that the evidence of the complainant, if accepted by the jury as it must have been, presented a clear case to sustain the conviction of the sexual assault. In Fowler at 630 the High Court said:
"The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused."
67 I take the public interest in the proper administration of justice to be that not only is it to be considered that the accused has already faced one trial, been convicted and then succeeded upon appeal in having the conviction quashed, and so would be placed in jeopardy of conviction again by an order for a new trial, but also that the community and the victim have an interest in seeing that the processes of criminal trial are properly carried into effect in such a way that a judgment is made by the jury upon the merits of the case to determine whether or not it may be established beyond reasonable doubt that the accused person is guilty of the offence charged. In this case, having regard to those matters, in my opinion it would be proper to exercise the discretion of the court to order a new trial rather than to enter a judgment of acquittal.
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